59580 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 220 

[Docket No. FRA–2009–0118] 

RIN 2130–AC21 

Restrictions on Railroad Operating 

Employees’ Use of Cellular Telephones 

and Other Electronic Devices 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Final rule; rescission of 

Emergency Order No. 26. 

SUMMARY: FRA is amending its railroad 

communications regulations by 

restricting use of mobile telephones and 

other distracting electronic devices by 

railroad operating employees. This rule 

codifies most of the requirements of 

FRA Emergency Order No. 26, which is 

supplanted by this final rule on the date 

it becomes effective. FRA has revised 

some of the substantive requirements of 

that Emergency Order as well as its 

scope to accommodate changes that 

FRA believes are appropriate based 

upon its experience with the Emergency 

Order and in response to public 

comments submitted in response to the 

proposed rule. 

DATES: Effective March 28, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Douglas H. Taylor, Staff DirectorOperating Practices, Office of Railroad 

Safety, FRA, 1200 New Jersey Avenue, 

SE., Washington, DC 20590 (telephone: 

(202) 493–6255); Ann M. Landis, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Avenue, SE., 

Washington, DC 20950 (telephone: (202) 

493–6064); or Joseph St. Peter, Trial 

Attorney, Office of Chief Counsel, FRA, 

1200 New Jersey Avenue, SE., 

Washington, DC 20950 (telephone: (202) 

493–6047). 

SUPPLEMENTARY INFORMATION: 

Table of Contents for Supplementary 

Information 

I. Background 

A. Notice of Proposed Rulemaking 

B. Effective Date 

C. Background Information 

D. Justification for the Rulemaking 

E. Legal Basis for the Rulemaking 

F. Distracted Driving Impacts All 

Transportation Modes 

1. Aviation 

2. Rail 

3. Motorcoach 

G. Studies 

1. FRA Study 

1. National Motor Vehicle Crash Causation 

Survey (NMVCCS) 

2. 100-Car Naturalistic Driving Study 

3. National Occupant Protection Use 

Survey (NOPUS) 

4. Motor Vehicle Occupant Safety Survey 

(MVOSS) 

H. Other Efforts 

1. State Action 

2. Federal Action 

II. Response to Public Comment 

III. Section-by-Section Analysis 

IV. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

B. Regulatory Flexibility Act and Executive 

Order 13272 

1. Description of Regulated Entities and 

Impacts 

2. Certification 

C. Paperwork Reduction Act 

D. Environmental Impact 

E. Federalism Implications 

F. Unfunded Mandates Reform Act of 1995 

G. Energy Impact 

H. Privacy Act Statement 

I. Executive Order 12988 

I. Background 

A. Notice of Proposed Rulemaking 

On May 18, 2010, FRA published a 

notice of proposed rulemaking (NPRM) 

in the Federal Register proposing to 

restrict the use of mobile telephones and 

other distracting electronic devices by 

railroad operating employees. 75 FR 

27672 (May 18, 2010). The NPRM 

proposed to codify many of the 

requirements of Emergency Order 26 

(Order or EO 26, 73 FR 58702 (Oct. 7, 

2008)), but proposed certain changes to 

it in response to a letter challenging 

certain provisions of the Order. FRA 

asked for public comment on the NPRM, 

and received 15 comments in response. 

FRA has reviewed those comments and 

as a result has made changes for this 

final rule. These changes are described 

below. 

B. Effective Date 

This final rule will take effect 180 

days after its publication date. FRA has 

chosen this implementation schedule 

for several reasons. This 

implementation schedule will ensure no 

gaps in safety regulation occur, no gaps 

in examination or instruction on the 

requirements of the governing safety 

regulation occur, and will also 

accommodate traditional industry 

practices for the instruction schedule of 

operating employees. 

First, EO 26 is currently in effect, and 

will remain so until this final rule 

supplants it upon its effective date. All 

railroad operating employees were 

already required to have been trained on 

the restrictions established by EO 26. 

EO 26 provides no less measure of 

safety of than does this final rule, which 

only modifies certain requirements of 

the Order. 

Next, in response to the NPRM, the 

Association of American Railroads 

(AAR) submitted a comment to FRA that 

requested adequate time for railroads to 

implement their programs of instruction 

and to then provide that required 

instruction to their operating 

employees. As discussed below, this 

final rule allows railroads 90 days to 

implement a program of instruction, and 

then an additional 90 days to actually 

instruct their employees. Allowing 

railroads this period of time to 

implement the instruction requirements 

of this final rule will result in reduced 

implementation and instruction costs. 

As AAR’s comment indicated, the 

industry practice is for railroads to 

finalize their annual rules instruction 

programs in the fourth quarter of the 

calendar year, and then to actually 

instruct their employees on those 

annual rules instruction programs in the 

first quarter of the next calendar year. 

Thus, based on the implementation date 

FRA has chosen, railroads should not 

have to alter the timing of their 

instruction programs or require their 

employees to attend additional 

instruction sessions outside of those 

already planned during the first quarter 

of 2011. 

As EO 26 will remain in effect until 

this final rule becomes effective, 

railroad operating employees will not be 

subject to this final rule until they have 

already been instructed on its 

requirements. This implementation 

schedule also ensures there will be no 

gap in time where a new railroad 

operating employee will perform work 

subject to the requirements of this final 

rule, but will not have yet been trained 

on its requirements or the requirements 

of a supplanted EO 26. 

In sum, this implementation schedule 

does not allow for any gap in safety 

regulation, as employees have been 

trained on the requirements of EO 26 

and will be subject to its requirements 

until the final rule takes effect. Upon the 

final rule taking effect, all new and 

current railroad employees will have 

already been instructed on the rule’s 

requirements. Finally, as discussed 

above, this schedule also accommodates 

a large segment of the railroad 

industry’s traditional rules instruction 

practices. 

C. Background Information 

The increasing number of distractions 

for drivers has led to increasing safety 

risks. The distractions caused by cell 

phones (mobile phones/cellular phones) 

have been a concern for years. In 

addition, each day, drivers are 

distracted by eating, conversations with 

passengers, using portable electronic 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59581 

devices, or some other type of 

multitasking. This type of behavior 

results in vehicle accidents and 

significant costs to our nation’s 

economy. Parallels are easily drawn 

between distracted driving and the 

operation of trains while using 

distracting electronic devices, as 

evidenced by the examples discussed 

below. 

In response to this growing problem, 

DOT hosted a Distracted Driving 

Summit in Washington, DC (http:// 

www.distraction.gov/dot/). At the 

Summit, DOT brought together safety 

and law enforcement experts as well as 

young adults whose distracted driving 

had tragic consequences. Attendees 

heard the testimony of families who lost 

loved ones because someone else had 

chosen to send a text message, dial a 

phone, or become occupied with 

another activity while driving. In 

addition to hosting the Summit, DOT 

has reviewed recent research and has 

decided to take a more systematic look 

at the issue and its many dimensions. 

Another Distracted Driving Summit is 

scheduled for September 21, 2010. 

D. Justification for the Rulemaking 

FRA has discovered numerous 

examples of the dangers posed by 

distracting electronic devices. These 

examples indicate the necessity of 

restrictions on the use of such electronic 

devices. Five of these accidents are 

described below, though all of these and 

more can be found in the full text of the 

Order. 

1. On June 8, 2008, a Union Pacific 

Railroad Company (UP) brakeman was 

struck and killed by the train to which 

he was assigned. FRA’s investigation 

indicated that the brakeman instructed 

the locomotive engineer via radio to 

back the train up and that the brakeman 

subsequently walked across the track, 

into the path of the moving train. The 

brakeman was talking on his cell phone 

at the time of the accident. 

2. On July 1, 2006, a northward BNSF 

Railway Company (BNSF) freight train 

collided with the rear of a standing 

BNSF freight train at Marshall, Texas. 

Although there were no injuries, there 

were estimated damages of $413,194. 

Both trains had two-person crews. The 

striking train had passed a ‘‘Stop and 

Proceed at Restricted Speed’’ signal 

indication and was moving at 20 mph. 

FRA determined that the collision was 

caused by the failure by the locomotive 

engineer on the striking train to comply 

with restricted speed and that he was 

engaged in cell phone conversations 

immediately prior to the accident. 

3. On December 21, 2005, a contractor 

working on property of The Kansas City 

Southern Railway Company at 

Copeville, Texas was struck and killed 

when he stepped into the path of an 

approaching freight train. FRA’s 

investigation disclosed that the 

contractor was talking on a cell phone 

at the time of the accident. 

4. One locomotive engineer died and 

a train conductor suffered serious burns 

when two BNSF freight trains collided 

head-on near Gunter, Texas on May 19, 

2004. The collision resulted in the 

derailment of 5 locomotives and 28 cars, 

with damages estimated at $2,615,016. 

Approximately 3,000 gallons of diesel 

fuel were released from the locomotives, 

which resulted in a fire. The National 

Transportation Safety Board (NTSB) 

investigators obtained records that 

showed the number and duration of cell 

phone calls made by crewmembers on 

both trains between 1:50 p.m. and the 

time of the accident, approximately 5:46 

p.m. During this time, a total of 22 

personal cell phone calls were made 

and/or received by the five 

crewmembers on both trains while the 

trains were in motion. 

5. At 8:57 a.m. on May 28, 2002, an 

eastbound BNSF coal train collided 

head on with a westbound BNSF 

intermodal train near Clarendon, Texas. 

The conductor and engineer of the coal 

train received critical injuries. The 

engineer of the intermodal train was 

killed. The cost of the damages 

exceeded $8,000,000. The NTSB found 

that all four crewmembers involved in 

this accident had personal cell phones. 

It also found that the use of a cell phone 

by the engineer of one of the trains may 

have distracted him to the extent that he 

was unaware of the dispatcher’s 

instructions that he stop his train at a 

designated point. 

On October 1, 2008, FRA issued EO 

26 restricting the use of cellular 

telephones and other electronic devices 

while on duty. (73 FR 58702, Oct. 7, 

2008). This FRA action was in part a 

response to the accidents discussed 

above and in part a response to the 

September 12, 2008 head-on collision 

between a Southern California Regional 

Rail Authority (Metrolink) commuter 

train and a UP freight train in 

Chatsworth, California. This accident 

resulted in 25 deaths, numerous 

injuries, and more than $7 million in 

damages. Information discovered during 

the NTSB investigation indicates that 

the locomotive engineer of the 

Metrolink commuter train passed a stop 

signal. NTSB stated that a cell phone 

owned by the commuter train engineer 

was being used to send a text message 

within 30 seconds of the time of the 

accident. 

In the period from the effective date 

of the Order, October 27, 2008, through 

August 2010, FRA inspectors discovered 

approximately 249 instances in which 

the Order may have been violated. 

FRA’s Office of Railroad Safety 

recommended enforcement action 

against the employee or railroad in 56 

of these instances. Forty-nine of these 

actions were based on a railroad 

employee’s using an electronic device, 

failing to have its earpiece removed 

from the employee’s ear, or failing to 

have the device turned off in a 

potentially unsafe situation. In addition, 

48 of the incidents recommended for 

enforcement action involved personal, 

as opposed to railroad-supplied, 

devices. These incidents begin to 

illustrate the hazards of using 

distracting electronic devices while on 

duty. For this reason, FRA is compelled 

to promulgate enforceable regulations to 

prevent the unsafe use of electronic 

devices by on-duty railroad employees. 

FRA has considered the costs and 

benefits of this rule. Relative to the 

current requirements of EO 26, the only 

additional burden produced by the 

requirements of this rule is that related 

to revising programs and initial 

instruction focused on the exceptions 

that this rule will introduce as well as 

the additional potential cost for 

purchasing or carrying cameras or 

calculators. This added burden will 

total approximately $696,000 (PV, 3%) 

or $613,000 (PV, 7%) over a 20-year 

period. The exceptions to the existing 

restrictions on the use of electronic 

devices will allow for greater flexibility 

with respect to the use of certain 

electronic devices while maintaining 

the safety benefits intended. Thus, when 

compared to the existing requirements, 

the added flexibility will justify the 

relatively minor cost burden. 

In an effort to also evaluate the 

requirements that will be transferred 

from EO 26 to Part 220, FRA examined 

costs and benefits relative to conditions 

prior to issuance of EO 26 in the format 

of break-even analyses, which can be 

relied upon to indicate likely net benefit 

outcomes. Applying highly conservative 

assumptions, 20-year direct and indirect 

costs could total as much as $31.9 

million (discounted at 7%) or $42.9 

million (discounted at 3%). The breakeven analyses for the rule and EO 26 

show that, in all scenarios considered, 

it will not require an unreasonable 

decrease in the probability of an 

accident in order to at least break even. 

As discussed more completely in the 

Regulatory Impact Analysis 

accompanying this rule, the frequency 

and severity of accidents together with 

the observed rising incidence of 


emcdonald on DSK2BSOYB1PROD with RULES2
59582 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

1FRA Report ‘‘The Impact of Distracting 

Electronic Devices on the Safe Performance of 

Duties by Railroad Operating Employees’’ (May 27, 

2010). Available online at: http://www.fra.dot.gov/ 

downloads/safety/CellPhoneReport4510.pdf. 

improper use of cell phones and other 

electronic devices strongly suggest that 

the elimination of improper electronic 

device usage by railroad operating 

employees, as required by this rule, will 

prevent more than one fatality every two 

years, and therefore, that the monetized 

benefits of the requirements will likely 

outweigh the monetized costs. 

SUMMARY OF COSTS OF EO 26 AND THIS RULE

[In millions] 

Twenty-year total 

(3% discount rate) 

Twenty-year total 

(7% discount rate) 

Total direct costs ............................................................................................................................. $12.7 $9.5 

Total indirect costs ........................................................................................................................... 30.2 22.4 

Total costs ....................................................................................................................................... 42.9 31.9 

Costs attributable to this rule ........................................................................................................... 0.7 0.6 

E. Legal Basis for the Rulemaking 

Congress required the Secretary to 

complete a study on the safety impact 

of the use of personal electronic devices 

by safety-related railroad employees by 

October 16, 2009, and to report to 

Congress on the results of the study 

within six months after its completion. 

See Sec. 405(a) and (c) of the Rail Safety 

Improvement Act of 2008 (RSIA), Public 

Law 110–432, Div. A, 122 Stat. 4848, 

Oct. 16, 2008 (122 Stat. 4885, 49 U.S.C. 

20103 note). Sec. 405(d) of the RSIA 

authorizes the Secretary to prohibit the 

use of personal electronic devices that 

may distract employees from safely 

performing their duties based on the 

conclusions of the required study. The 

Secretary, in turn, has delegated the 

responsibility to carry out these duties 

and to exercise this authority to the 

Federal Railroad Administrator. 49 CFR 

1.49(oo). See also 49 CFR 1.49(m) for 

further rail safety related delegations, 

including general rulemaking authority, 

to the Federal Railroad Administrator. 

The required study, titled ‘‘The Impact 

of Distracting Electronic Devices on the 

Safe Performance of Duties by Railroad 

Operating Employees’’ 1 was completed 

and submitted to Congress on May 27, 

2010. The study stated that FRA found 

that railroad operating employees were 

increasingly using distracting electronic 

devices in a manner that created 

hazards. As such, FRA intervention was 

warranted.FRA will continue to monitor 

compliance regarding the use of 

electronic devices by railroad 

employees. 

F. Distracted Driving Impacts All 

Transportation Modes 

The use of cell phones and other 

electronic devices has become 

ubiquitous in American society. There 

is strong evidence that people permit 

electronic devices to distract them from 

driving all kinds of vehicles and that 

such distractions can have serious safety 

consequences. 

1. Aviation 

On October 21, 2009, Northwest 

Airlines Flight 188 was enroute from 

San Diego to Minneapolis-St. Paul 

International/Wold-Chamberlain 

Airport with 144 passengers. Flight 188 

overflew its destination airport by 

approximately 150 miles before air 

traffic controllers were able to contact 

the crew via radio. After the incident, 

the pilot and first officer told the NTSB 

that they had lost track of the plane’s 

location because they had been 

distracted in the cockpit while using 

personal laptop computers and 

discussing airline crew scheduling 

procedures. Using personal laptop 

computers in the cockpit was a violation 

of airline policy, and the Federal 

Aviation Administration suspended the 

certificates of both the pilot and first 

officer on October 27, 2009. 

2. Rail 

See the discussion above. 

3. Motorcoach 

On November 14, 2004, a bus struck 

a bridge on the George Washington 

Parkway in Alexandria, Virginia, a 

serious accident that destroyed the roof 

of the motorcoach and injured 11 

students, including one seriously. As 

determined by an NTSB investigation, 

the bus driver said he had been talking 

on a hands-free cell phone at the time 

of the accident. Records from the bus 

driver’s personal cell phone service 

provider showed that the bus driver 

initiated a 12-minute call on the 

morning of the accident. The driver said 

that he saw neither the warning signs 

nor the bridge itself before the impact. 

Evidence indicates that he did not apply 

any brakes before impacting the bridge. 

The NTSB concluded that the bus 

driver’s cell phone conversation at the 

time of the accident diverted his 

attention from driving. 

This crash resulted in the NTSB 

recommendation H–06–27 that 

commercial driver’s license (CDL) 

holders with a passenger-carrying or 

school bus endorsement be prohibited 

from using cell phones or other personal 

electronic devices while driving those 

vehicles. 

Statistics show that distraction from 

the primary task of driving presents a 

serious and potentially deadly danger. 

In 2008, 5,870 people lost their lives 

and an estimated 515,000 people were 

injured in police-reported crashes in 

which at least one form of driver 

distraction was reported on the crash 

report. While these numbers are 

significant, they may not state the true 

size of the problem, since it is difficult 

to identify distraction and its role in a 

crash. See http://www.dot.gov/affairs/ 

DOT%20HS%20811%20216.pdf. 

First, the data are based largely on 

police accident reports that are 

conducted after the crash has occurred. 

These reports vary across police 

jurisdictions, thus creating potential 

inconsistencies in reporting. Some 

police accident reports identify 

distraction as a distinct reporting field, 

while others identify distraction from 

the narrative portion of the report. 

Further, the data includes only those 

crashes in which at least one form of 

driver distraction was actually reported 

by law enforcement, thus creating the 

potential for an undercount. 

In addition to, and contributing to, 

inconsistent reporting of distraction on 

police accident reports, there are 

challenges in determining whether the 

driver was distracted at the time of the 

crash. Self-reporting of negative 

behavior, such as distracted driving, is 

likely lower than actual occurrence of 

that behavior. Law enforcement must 

also rely on crash investigation 

information to determine if distraction 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59583 

2Ranney, Thomas A. (2008). ‘‘Driver Distraction: 

A Review of the Current State-of-Knowledge.’’ DOT 

HS 810 787. Available online at: http:// 

www.scribd.com/doc/12073978/Driver-DistractionA-Review-of-the-Current-StateofKnowledge. A more 

comprehensive listing of research on distracted 

driving, which includes links to many of the reports 

discussed in this analysis, can be found online at: 

http://www.nhtsa.dot.gov/portal/site/nhtsa/ 

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3NHTSA (2009). ‘‘National Motor Vehicle Crash 

Causation Survey: Report to Congress.’’ DOT HS 811 

059. Available online at: http://wwwnrd.nhtsa.dot.gov/Pubs/811059.PDF. 

4 Dingus, T.A. et al. (2006). ‘‘The 100-Car 

Naturalistic Driving Study, Phase II—Results of the 

100-Car Field Experiment.’’ DOT HS 810–593. 

Available online at: http://www.nhtsa.dot.gov/

staticfiles/DOT/NHTSA/NRD/Multimedia/PDFs/ 

Crash%20Avoidance/Driver%20Distraction/

100CarMain.pdf. Neale et al. (2005). ‘‘An Overview 

of the 100-Car Naturalistic Study and Findings.’’ 

NHTSA Paper Number 05–0400. Available online 

at: http://www.nhtsa.dot.gov/staticfiles/DOT/ 

NHTSA/NRD/Multimedia/PDFs/

Crash%20Avoidance/Driver%20Distraction/

100Car_ESV05summary.pdf. 

5Neale et al.,supra note 3. 

6 Klauer et al. (2006). ‘‘The Impact of Driver 

Inattention on Near-Crash/Crash Risk: An Analysis 

Using the 100-Car Naturalistic Driving Study Data.’’ 

DOT HS 810 594. Available online at: http:// 

www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/NRD/

Multimedia/PDFs/Crash%20Avoidance/

Driver%20Distraction/810594.pdf. 

was involved in those crashes with a 

driver death. The information available 

to law enforcement may not indicate 

distraction even where it was a cause of 

or a factor in the accident. For these 

additional reasons, reported crashes 

involving distraction may be 

undercounted. 

G. Studies 

Due to differences in methodology 

and definitions of distraction, any study 

or survey conducted may arrive at 

different results and conclusions with 

respect to the involvement of driver 

distraction in causing a crash. A 2008 

research paper sponsored by the 

National Highway Traffic Safety 

Administration (NHTSA) entitled, 

Driver Distraction: A Review of the 

Current State-of-Knowledge, discusses 

multiple means of measuring the effects 

of driver distraction including 

observational studies of driver behavior, 

crash-based studies, and experimental 

studies of driving performance. Each 

type of study has its own set of 

advantages and disadvantages.2

1. National Motor Vehicle Crash 

Causation Survey (NMVCCS) 

NHTSA recently conducted a 

nationwide survey of crashes involving 

light passenger vehicles with a focus on 

factors related to pre-crash events.3 The 

NMVCCS investigated a total of 6,950 

crashes during the three-year period 

from January 2005 to December 2007. 

The report used a nationally 

representative sample of 5,471 crashes 

that were investigated during a two-anda-half-year period from July 3, 2005, to 

December 31, 2007. Based on the 

sampling method of the survey, findings 

were representative of the nation as a 

whole. 

Survey researchers were able to assess 

the critical event that preceded the 

crash, the reason for this event, and any 

other associated factors that might have 

played a role. Examples of the critical 

event preceding the crash include 

running off the edge of the road, failure 

to stay in the proper lane, or loss of 

control of the vehicle. Researchers 

assessed the reason underlying this 

critical event and attributed that reason 

to either the driver, the condition of the 

vehicle, failure of the vehicle systems, 

adverse environmental conditions, or 

roadway design. Each of these areas was 

further broken down to determine more 

specific critical reasons. For the driver, 

critical reasons included facets of driver 

distraction and, therefore, NMVCCS was 

able to quantify driver distraction 

involvement in crashes. The percentages 

included in this discussion are based on 

5,471 crashes. 

In addition to reporting distraction as 

the critical reason for the pre-crash 

event, NMVCCS also reported crashassociated factors. These are factors 

such as interior distractions that likely 

added to the probability of a crash 

occurrence. In cases where the 

researchers attributed the critical reason 

of the pre-crash event to a driver, 

researchers also attempted to determine 

the role and type of distraction. Of the 

crashes studied, about 18 percent of the 

drivers were engaged in at least one 

interior (i.e., in-vehicle) non-driving 

activity (e.g., looking at other occupants, 

dialing or hanging up a phone, or 

conversing with a passenger). For the 

most part, that activity was conversing 

either with other passengers or on a cell 

phone, as a total of about 12 percent of 

drivers in these crashes were engaged in 

conversation. Drivers between ages of 16 

and 25 demonstrated the highest rate of 

being engaged in at least one interior 

non-driving activity. 

2. 100-Car Naturalistic Driving Study 

The 100-Car Naturalistic Driving 

Study was an observational study—via 

instrumented vehicles—to provide 

details on driver performance, behavior, 

environment, and other factors 

associated with critical incidents, nearcrashes, and crashes for 100 cars over a 

one-year period.4 This exploratory study 

was conducted to determine the 

feasibility of a larger-scale study that 

would be more representative of the 

nation’s driving behavior. Despite the 

small scale of the 100-Car study, 

extensive information was obtained on 

241 primary and secondary drivers over 

a 12- to 13-month period occurring 

between January 2003, and July 2004. 

The data covered approximately 2 

million vehicle miles driven and 43,000 

hours of driving. As stated in An 

Overview of the 100-Car Naturalistic 

Study and Findings, ‘‘the goal of this 

study was to maximize the potential to 

record crash or near crash events 

through the selection of subjects with 

higher than average crash or near crash 

risk exposure.’’5 In order to achieve this 

goal, the 100-car study selected a larger 

sample of drivers who were 18–25 years 

of age and who drove more than 

average. 

Additionally, the subjects were 

selected from the Northern Virginia/ 

Washington, DC metropolitan area 

which offers primarily urban and 

suburban driving conditions, often in 

moderate to heavy traffic. This type of 

purposive sample served well the 

intentions of the study; however, it also 

created limitations on the application of 

the findings. The findings of the 100-car 

study cannot be generalized to represent 

the behavior of the nation’s population 

or the potential causal factors for the 

crashes that occur across the nation’s 

roadways. 

During the 100-car study, complete 

information was collected on 69 

crashes, 761 near-crashes, and 8,295 

incidents. The encompassing term 

inattention was classified during this 

study as (1) secondary task involvement, 

(2) fatigue, (3) driving-related 

inattention to the forward roadway, and 

(4) non-specific eye glance away from 

the forward roadway. Secondary task 

involvement is defined for the study as 

driver behavior that diverts the driver’s 

attention away from the driving task; 

this may include talking on a cell 

phone, eating, talking to a passenger, 

and other distracting tasks. Results of 

the 100-car study indicate that 

secondary task distraction contributed 

to over 22 percent of all the crashes and 

near-crashes recorded during the study 

period.6 This study found that when a 

secondary task took the driver’s eyes off 

of the road for more than 2.0 seconds 

(out of a 6.0-second time interval), the 

odds of a crash or near-crash event 

occurring significantly increased. 


emcdonald on DSK2BSOYB1PROD with RULES2
59584 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

7NHTSA (2009). ‘‘Driver Electronic Device Use in 

2008.’’ DOT HS 811 184. Available online at: 

http://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF. 

8NHTSA (2008). ‘‘Driver Electronic Device Use in 

2007.’’ DOT HS 810 963. Available online at: 

http://www-nrd.nhtsa.dot.gov/Pubs/810963.PDF. 

9NHTSA (2008) supra note 7 and NHTSA (2009) 

supra note 6. 

10Boyle, J.M. and C. Lampkin (2008). ‘‘2007 

Motor Vehicle Occupant Safety Survey Volume 4: 

Crash Injury and Emergency Medical Services 

Report.’’ DOT HS 810 977. See report summary 

dated March 2009 online at: http:// 

www.nhtsa.dot.gov/staticfiles/DOT/NHTSA/

Communication%20&%20Consumer%

20Information/Traffic%20Tech%20Publications/

Associated%20Files/tt371.pdf. 

11 InFo 10003 ‘‘Cockpit distractions’’ (April 26, 

2010). Available online at: http://www.faa.gov/ 

other_visit/aviation_industry/airline_operators/ 

airline_safety/info/all_infos/media/2010/ 

InFO10003.pdf. 

3. National Occupant Protection Use 

Survey (NOPUS) 

NHTSA’s annual survey of occupant 

protection also collects data on 

electronic device use. NOPUS provides 

the only probability-based observed data 

on driver electronic device use in the 

United States.7 Based on the sampling 

method of the survey, findings are 

representative of the nation as a whole. 

In 2008, it was estimated that about 6 

percent of all drivers were using handheld cell phones while driving during 

daylight hours. This finding means that 

about 812,000 vehicles on the road at 

any given daylight moment were being 

driven by someone using a hand-held 

cell phone in 2008. Survey data from 

the previous year yielded an even 

higher figure: according to NOPUS, in 

2007 about 1,005,000 vehicles were 

being driven by someone using a handheld cell phone at any given daylight 

moment.8 Another finding was that in 

both 2007 and 2008 an estimated 11 

percent of vehicles in a typical daylight 

moment were driven by someone who 

was using some type of electronic 

device, either hand-held or hands-free.9

4. Motor Vehicle Occupant Safety 

Survey (MVOSS) 

The MVOSS is a periodic national 

telephone survey on occupant 

protection issues. The most recent 

administration of the survey was in 

2007. Volume 4, Crash Injury and 

Emergency Medical Services Report, 

includes discussion of questions 

pertaining to wireless phone use in the 

vehicle.10 According to the report 

summarizing the 2007 data, 81 percent 

of drivers age 16 and older usually have 

a wireless phone in the vehicle with 

them when they drive. Drivers over the 

age of 54 were less likely than younger 

drivers to have them—87 percent of 16- 

to 54-year olds, 74 percent of 55-to 64- 

year-olds, and 63 percent of drivers age 

65 and older. Of those drivers who 

usually have a wireless phone in the 

vehicle, 85 percent said they keep the 

phone on during all or most of their 

trips. Among drivers who keep the 

phone turned on when they drive, 64 

percent always or usually answer 

incoming phone calls. 

Of the drivers who usually have a 

wireless phone in the vehicle with them 

when they drive, 16 percent said they 

talk while driving during most or all of 

their trips, and 17 percent said they talk 

on their wireless phone during about 

half of their trips. On the other hand, 22 

percent of individuals reported never 

talking on their phone while driving. 

When driving and wanting to dial the 

phone, 32 percent of those who at least 

occasionally talk on the phone while 

driving tend to dial the phone while 

driving the vehicle. An additional 37 

percent tend to wait until they are 

temporarily stopped, and 19 percent 

tend to pull over to a stop to place the 

call. Ten percent stated they never dial 

while driving. 

H. Other Efforts 

1. State Action 

Texting while driving is prohibited in 

30 States, the District of Columbia, the 

Virgin Islands, and Guam. A list of 

States and Territories that have taken 

such actions can be found at the 

following DOT Web site: http:// 

www.distraction.gov/state-laws. Many 

other States have instituted even stricter 

prohibitions on the use of cell phones 

for other functions, including voice 

communications, while driving. 

2. Federal Action 

On October 1, 2009, during DOT’s 

Distracted Driving Summit, the 

President issued Executive Order 13513 

on ‘‘Federal Leadership on Reducing 

Text Messaging While Driving.’’ Among 

other things, the Order prohibits all 

Federal employees from engaging in text 

messaging while— 

• Driving Government-owned, 

-leased, or -rented vehicles; 

• Driving privately-owned vehicles 

while on official Government business; 

and 

• Using electronic equipment 

supplied by the Government (including, 

but not limited to, cell phones, 

BlackBerries, or other electronic 

devices) while driving any vehicle. 

On April 1, 2010, the Federal Motor 

Carrier Safety Administration published 

a notice of proposed rulemaking which 

proposed to prohibit texting by 

commercial motor vehicle (CMV) 

drivers while operating in interstate 

commerce. 75 FR 16391 (April 1, 2010). 

The rule was proposed to improve 

safety on the Nation’s highways by 

reducing the prevalence of distracted 

driving-related crashes, fatalities, and 

injuries involving drivers of commercial 

motor vehicles. 

On April 26, 2010, the Federal 

Aviation Administration issued 

Information for Operators (InFO) 

guidance 11 on cockpit distractions, 

urging crewmembers to refrain from 

engaging in distracting tasks not related 

to flight duties, such as using personal 

electronic devices. The guidance 

highlighted recent incidents in which 

pilots had engaged in the use of 

distracting personal electronic devices 

while performing required flight duties, 

and called on air carriers to create 

policies limiting pilot distraction. 

The Pipeline and Hazardous Material 

Safety Administration (PHMSA) issued 

‘‘Safety Advisory Notice: Personal 

Electronic Device Related Distractions 

(Safety Advisory Notice No.10–5)’’ to 

alert the hazardous materials 

community to the dangers associated 

with the use of electronic devices while 

operating a commercial motor vehicle. 

75 FR 45697 (Aug. 3, 2010). In the 

notice, PHMSA stressed the heightened 

risk of transportation incidents 

involving hazardous materials when 

drivers are distracted by electronic 

devices. The notice urges motor carriers 

that transport hazardous materials to 

institute policies and provide awareness 

instruction to discourage the use of 

mobile telephones and electronic 

devices by motor vehicle drivers. 

II. Response to Public Comment 

FRA received 15 comments in 

response to the NPRM. Comments were 

submitted by a wide variety of affected 

parties, including the American 

Association for Justice (AAJ); AAR; five 

labor organizations that submitted a 

joint comment, (including the United 

Transportation Union, Brotherhood of 

Locomotive Engineers and Trainmen, 

Brotherhood of Railroad Signalmen, 

Brotherhood of Maintenance of Way 

Employes, and the American Train 

Dispatchers Association (collectively 

referred to as the Labor Organizations)); 

the National Railroad Passenger 

Corporation (Amtrak); the National 

Transportation Safety Board (NTSB); the 

National Safety Council; the Peninsula 

Corridor Joint Powers Board (Caltrain); 

the Utah Transit Authority; and seven 

individuals. In addition, New Jersey 

Transit (NJT) contacted FRA and had a 

brief conversation that was summarized 

and documented in a memorandum, 

which is posted in the public docket for 

this rule. FRA staff extensively reviewed 


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and evaluated the comments. In this 

section, FRA will respond to comments 

regarding locomotive engineer 

certification; access to personal cell 

phone records; personal emergencies; 

exceptions regarding personal devices 

such as GPS and cameras; electronic 

devices to document violations of safety 

laws; minimum standards, authorized 

business purposes; passenger train 

considerations; accident reduction; 

instruction; operational tests; regulatory 

impact analysis; and other general 

comments. FRA will also respond to 

some of the smaller concerns within the 

Section-by-Section Analysis below. 

In the NPRM, FRA requested 

comments on four issues: (1) Whether 

violations should be the basis for 

revoking a locomotive engineer’s 

certification; (2) whether railroads 

should require railroad access to 

personal cell phone records if the 

employee was involved in an accident; 

(3) whether devices or uses other than 

those specified should be subject to only 

limited restrictions; and (4) whether 

FRA should allow electronic devices to 

be used more liberally for personal 

emergencies. 

Locomotive Engineer Certification 

Revocation 

FRA received five comments in 

response to our request for information 

on whether to amend 49 CFR part 240 

(part 240). FRA specifically requested 

comment on whether violations of this 

final rule should be added as a basis for 

revoking a locomotive engineer’s 

certification. Both the NTSB and AAR 

submitted comments in support of this 

proposal, stating that it would provide 

a deterrent to the improper use of 

electronic devices and also that such 

violations should be incorporated as the 

basis for revoking a conductor’s 

certification in the forthcoming 

conductor certification regulation. The 

Utah Transit Authority commented that 

if part 240 were amended, that it should 

be at the discretion of the individual 

railroad to decide whether electronic 

device violations should be cause for 

decertification. 

The Labor Organizations’ joint 

comment and a railroad employee both 

commented that they opposed 

amending part 240. The railroad 

employee stated that the current 

revocable offenses found at 49 CFR 

240.117(e) (§ 240.117(e)) are absolute 

rules, but that this final rule contains 

numerous exceptions where it is 

permissible for operating employees to 

use electronic devices. The Labor 

Organizations’ comment stated that 

accident information does not support 

adding violations to § 240.117(e). The 

comment stated that unlike the current 

provisions of that section, a significant 

portion of train accidents do not result 

from use of electronic devices. These 

commenters also expressed concern that 

revoking an engineer’s certification 

merely because he or she may have 

forgotten to turn a device off would be 

an overly harsh penalty. The 

commenters also pointed out that FRA 

has numerous other enforcement tools 

at its disposal should it discover 

violations of this regulation. Finally, 

they commented that if FRA were to 

amend part 240 to include violations of 

this rule as offenses mandating 

revocation of a locomotive engineer’s 

certification, that revocation should be 

limited to instances in which a violation 

has occurred that contributed to one of 

the events identified in FRA’s provision 

on post-accident toxicological testing 

(49 CFR 219.201(a)), such as a major 

train accident or a fatality. 

After reviewing the comments, and 

based on the serious railroad incidents 

that have occurred as a result of 

electronic device use, FRA believes that 

it may be appropriate to amend part 240 

to allow for decertification in certain 

instances. However, FRA wishes to 

further review the issue, and to consider 

how it would appropriately implement 

such an amendment. Further, FRA 

would like to allow for this regulation 

to first take effect before making a final 

decision as to whether action to amend 

part 240 is necessary. As such, FRA may 

amend part 240 in a future rulemaking; 

for example, in a rulemaking where the 

agency could simultaneously implement 

a consistent provision in the 

forthcoming conductor certification 

rule. 

Access to Employees’ Personal Cell 

Phone Records 

FRA has decided that a provision 

mandating that railroads require 

operating employees to provide access 

to personal cell phone records in the 

event of an accident is unnecessary for 

FRA purposes. As noted in the NPRM, 

FRA currently uses its investigative 

authority under 49 U.S.C. 20107 and 49 

U.S.C. 20902 to obtain personal cell 

phone records when appropriate. 

Personal Emergencies 

FRA has decided that an exception for 

personal emergencies would present 

significant obstacles to enforcing this 

subpart. An employee who has just been 

found with a cell phone turned on while 

on a moving train could easily say that 

the phone was on because of a sick 

family member, whether true or not. 

Railroads have been able to contact 

crewmember for years in the event of 

emergencies before cell phones by using 

the locomotive radio. In addition, if 

there is genuine evidence of a personal 

emergency, FRA inspectors have 

discretion not to recommend a penalty. 

No FRA inspector, for example, would 

recommend a penalty against a railroad 

operating employee who called 911 

because an employee was having a heart 

attack. FRA expects railroads to also use 

reasonable discretion in the event of 

extenuating circumstances. If this 

proves not to be the case, FRA will 

revisit this issue. 

GPS Devices 

After publication of EO 26, FRA 

received a letter challenging certain 

provisions of the Order. That letter 

urged FRA to amend EO 26 to allow for 

the use of personal GPS devices. 

However, in the NPRM, FRA did not 

propose to allow any exemptions for use 

of personal GPS devices that would 

otherwise be in violation of the 

prohibitions set forth in the proposed 

regulation. In response to the NPRM, 

two comments addressed GPS devices. 

Amtrak commented that it understood 

the NPRM to mean that while personal 

GPS devices would be prohibited from 

being utilized outside the circumstances 

set forth in § 220.305, that § 220.307 of 

the proposed regulation would still 

allow for use of a GPS feature included 

in a railroad-supplied multifunctional 

device for an authorized business 

purpose. The Labor Organizations urged 

FRA to adopt a provision allowing for 

the use of GPS devices. The comment 

states that FRA should do so as GPS 

devices can aid in determining train 

speed and can help a crew more 

accurately determine where physical 

characteristics are located, especially 

during severe weather when visibility 

might be limited. The comment also 

states that GPS technology will be part 

of positive train control systems that 

will be able to prevent train incursions 

into working limits and other relevant 

operating restrictions that may be 

present. The comment alluded that 

personal GPS devices could help 

provide these same safeguards. 

In response, FRA points out that both 

proposed and final Subpart C do not 

prohibit the use of railroad-supplied 

GPS technology. First, railroads are free 

to issue railroad-supplied devices that 

utilize GPS technology. So long as those 

devices are used for an authorized 

business purpose in accordance with 

written instructions, the use of those 

devices is permissible during periods of 

time not otherwise prohibited by 

§ 220.307. Thus, Amtrak’s 

understanding of the proposed 

regulation is correct. If railroads feel 


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that such devices are necessary for 

operations, they may issue them for use. 

However, FRA has opted not to 

include personal GPS devices in the 

exemptions listed in § 220.309. Thus, a 

personal GPS device is not permitted to 

be used by a railroad operating 

employee in violation of the 

prohibitions set forth in § 220.305. 

There are several reasons why FRA has 

decided such. First, locomotive 

engineers are required to be familiar 

with the physical characteristics of the 

routes over which they operate. This 

knowledge is required by both railroad 

operating rules and by part 240. Thus, 

engineers should already be aware of 

where sidings, road crossings, and other 

physical characteristics are located. 

Second, there are other suitable means 

that FRA has already accounted for in 

this final rule with which to determine 

a train’s speed or location. Railroad 

mileposts along the right of way 

currently help denote a train’s exact 

location. Measured mile markers along 

the right of way are often used along 

with stopwatches, which are permitted 

to be used by this regulation, to 

determine the accuracy of a train’s 

speed indicator. Calculators are 

permitted to be used under this final 

rule, and can be used to determine 

formulas such as train stopping 

calculations. Locomotive foot-counter 

devices (sometimes in conjunction with 

calculators) are often used to determine 

when a train is clear of a speed 

restriction, interlocking, or working 

limits. Also, by nature, GPS devices are 

sometimes complicated devices to 

operate that could distract employees 

from safety-related functions. Finally, as 

noted above, if such devices are needed, 

the railroad is free to supply such 

devices for business purposes. FRA has 

not been presented with sufficient 

justification that these devices enhance 

railroad safety, especially because the 

above-listed means to determine train 

speed and location are already available 

to operating employees. Accordingly, 

FRA has chosen not to allow for the use 

of personal GPS devices in this final 

rule. 

Cameras 

In § 220.309(c) of the NPRM, FRA 

proposed allowing the use of ‘‘standalone’’ cameras to document a safety 

hazard or a violation of a rail safety law, 

regulation, order, or standard. The 

proposed text allowed for that use if the 

camera was not a part of a cell phone 

or other multi-functional electronic 

device. Further, the proposed text did 

not allow for the use of that device by 

a locomotive engineer on a moving 

train. In response to this proposal, FRA 

received four comments, which are 

addressed in detail below. 

After reviewing all of the comments, 

FRA declines to expand this provision 

to allow for the use of personal cameras 

that are part of a multi-function device 

during the periods of time prohibited by 

this rule. However, the agency is 

expanding the exception to allow for the 

use of railroad-supplied multifunctional devices as a camera. In other 

words, if a railroad issues a multifunctional device that includes a camera 

feature, the camera may be utilized by 

operating employees for an authorized 

business purpose as specified by the 

railroad in writing in accordance with 

this exception. Those purposes must be 

approved by FRA. FRA has chosen to 

allow such use to account for devices 

that may be used in the future as part 

of evolving technologies that railroads 

may utilize that could enhance safety. 

FRA has also chosen to amend the 

proposed exception as there may be less 

temptation to improperly use a railroadsupplied device as opposed to an 

employee’s personal device. 

Finally, FRA has changed the 

provision to eliminate reference to the 

use of video to document safety hazards. 

Many locomotives are already equipped 

with forward facing locomotive video 

recorders, and FRA is unaware of any 

sufficient justification to allow railroad 

operating employees an exemption to 

use video cameras during any additional 

periods of time outside those prohibited 

under §§ 220.303–220.305. Next, the 

language of the camera exemption was 

also changed to remove any reference to 

videos to prevent confusion. FRA 

realizes that some cameras intended for 

use as a camera have a video function, 

and believes those devices should be 

able to be used under this exception to 

take photographs. A number of cell 

phones, however, also have camera 

functions. By limiting this exemption to 

prohibit those devices unless they are 

railroad-provided and used for an 

authorized business purpose stated in 

writing by the railroad and approved by 

FRA, FRA avoids situations where those 

devices could be used outside these 

parameters by a railroad operating 

employee who claims to be 

documenting a safety hazard. 

AAJ commented that FRA should also 

allow for the use of cell phones to 

photograph safety hazards. AAJ 

reasoned that it was unreasonable to 

expect railroad employees to carry 

stand-alone cameras, and proposed 

allowing for the use of cell phone 

cameras if the device were turned off 

immediately after documenting the 

hazard. AAJ further asserted that 

railroads underreport accident and 

injury data and employees are thus at a 

disadvantage in ensuring safe working 

conditions. AAJ also discounted that the 

use of cell phone cameras presented 

enforceability problems for FRA. 

In response to AAJ’s comment, FRA 

notes that AAJ acknowledged that the 

proposed NPRM exemption regarding 

use of cameras would be an expansion 

of the current allowances under EO 26. 

Section 220.309(c) of this final rule will 

allow for the expanded use of cameras 

to document safety hazards. However, 

by prohibiting cell-phone cameras 

except in narrow circumstances, FRA 

enhances its goal of attempting to 

eliminate the use of distracting 

electronic devices by railroad operating 

employees. In FRA’s experience, 

personal cell phones account for the 

vast majority of documented instances 

where electronic device distraction 

contributed to railroad accidents. By 

disallowing the use of a camera that is 

part of a personal cell phone, the agency 

hopes to minimize use of cell phones 

during safety-critical times, and 

therefore prevent future accidents. 

Further, even outside the expanded 

ability to photograph safety hazards that 

this rule grants, railroad employees can 

always report these hazards to FRA or 

to the railroad. Lastly, FRA is not 

prohibiting employees from carrying 

stand-alone cameras. Whether an 

employee chooses to carry a personal 

camera to document potential safety 

hazards is at his or own discretion 

subject to railroad rules. Further, during 

the periods of time when electronic 

devices are not prohibited from being 

used by this regulation, employees are 

free to use their personal cell phones in 

any manner they wish, including the 

camera function, provided that use is in 

accordance with any applicable railroad 

operating rules. 

AAR requested that FRA delete this 

proposed camera exemption as 

unnecessary and compromising to 

security. AAR first reasoned, that even 

without the use of potentially 

distracting cameras, operating 

employees have other means of 

reporting safety issues to both the 

railroad itself and to FRA. Second, AAR 

asserted that for security reasons FRA 

should not allow for the use of cameras 

at all, as employees could then post 

pictures of security-sensitive locations. 

In response to AAR’s comment, FRA 

declines to delete § 220.309(c) from the 

final rule. As discussed in the NPRM, 

FRA realizes the importance of being 

able to document violations of railroad 

safety laws and potential hazardous 

conditions, and FRA does not want to 

infringe upon that usefulness. The 

provision in the final rule, while 


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limiting the use of electronic devices, 

still allows for hazardous conditions to 

be documented safely. Further, FRA has 

no information that railroad employees 

distributing what could potentially be 

security-sensitive pictures has been an 

issue in the past, and this regulation 

only exempts cameras for the purposes 

of documenting safety hazards, and not 

for any other circumstances. 

Amtrak also commented on the use of 

cameras, and, similar to their comment 

on GPS devices, wanted to ensure that 

the proposed regulation would not 

curtail its authority to issue railroadsupplied electronic devices that contain 

a camera feature, so that its employees 

would be able to utilize that function for 

authorized business purposes. Amtrak 

stated that it envisioned the use of the 

camera function on railroad-supplied 

devices being utilized to document an 

equipment defect or hazard. Amtrak 

stated that such use could help expedite 

repair requests and forward safety 

hazard information to the railroad. In 

response to Amtrak’s comment, such 

use of a railroad-supplied device would 

be permissible under this final 

regulation, as is explained above. 

Finally, the Labor Organizations’ joint 

comment stated that the proposed text 

should be expanded in the final rule to 

allow for the use of the camera feature 

of a cellular telephone. They stated that 

any device used to document a hazard 

should be permitted to be used, 

reasoning that the word of railroad 

employees is not usually sufficient for 

FRA to initiate investigations and that if 

employees do not have the ability to 

document a hazard in realtime, railroads 

could repair these conditions before an 

investigation can begin. Finally, the 

comment stated that it is unnecessary to 

require employees to carry several 

separate electronic devices in order to 

perform their duties. 

In response, FRA often receives 

complaints from railroad employees, 

and investigates them if they allege on 

their face a violation of a railroad safety 

regulation, law, or order. When FRA 

finds that those complaints have merit, 

FRA often takes enforcement action as 

a result. Next, the Labor Organizations’ 

comment states that if a safety hazard is 

not documented at the time the 

employee is present, that the condition 

is often repaired. However, the goal of 

documenting hazards is that such 

conditions would be repaired and made 

safe in a timely fashion. Thus, FRA does 

not find that argument persuasive. 

Finally, as stated above in response to 

AAJ’s comment, FRA does not require 

operating employees to carry any 

devices. This regulation merely sets the 

requirements for the permissible uses of 

certain electronic devices in order to 

eliminate distractions that have in the 

past had severe consequences. If 

operating employees choose to carry 

such devices, this regulation merely sets 

forth certain prohibitions on their use. 

Comment Proposing (1) New Exception 

for Electronic Devices Necessary To 

Document Violations of Safety Laws or 

(2) Amendments to Locomotive Safety 

Standards 

The Labor Organizations’ comment 

requests a general exception for ‘‘[o]ther 

electronic devices that are necessary to 

adequately document a safety hazard or 

a violation of a rail safety law, 

regulation, order, or standard, provided 

that the devices are turned off 

immediately after the documentation 

has been made.’’ The Labor 

Organizations expressed their concern 

that a carbon monoxide detector would 

be subject to the restrictions in this 

subpart. In particular, FRA would 

consider a carbon monoxide detector to 

be excluded from the definition of 

‘‘electronic device’’. A carbon monoxide 

detector does not perform any 

specifically prohibited functions, and it 

does not entail the risk of distracting an 

employee from a safety-related task 

while being unnecessary for the 

employee’s health and safety. In 

addition, FRA does not believe this 

proposed exception is necessary in 

general. Every FRA region has a toll-free 

phone number to report safety hazards 

and violations. As discussed above, 

employees can report safety hazards to 

FRA. Accordingly, no general exception 

for devices necessary to document 

safety hazards will be included in 

Subpart C. 

The Labor Organizations 

recommended that if FRA denied the 

request for this general exception that it 

instead amend 49 CFR part 229, 

Railroad Locomotive Safety Standards. 

Their suggestion was to allow an 

employee to refuse to operate a 

locomotive if the employee makes a 

good-faith determination that it does not 

comply with certain regulatory 

requirements, such as § 229.119(d), 

requiring proper ventilation, and 

§ 229.121, locomotive cab noise. This 

suggestion is outside of the scope of the 

NPRM and thus will not be addressed 

by this final rule. 

Minimum Standards 

The Labor Organizations comment 

requested that FRA prohibit railroads 

from imposing more restrictions on the 

use of electronic devices than those of 

this rule. FRA declines to do so. 

Specifically, the Labor Organizations 

were concerned that railroad operating 

rules would prohibit using calculators 

and the use of cameras to take pictures 

of safety hazards. FRA finds it unlikely 

that a railroad would prohibit the use of 

a calculator. There is also a significant 

possibility that some, if not all, railroads 

will allow the use of cameras to take 

pictures of safety hazards. Amtrak, for 

example, argued that FRA’s proposed 

exception be expanded to allow cameras 

on cell phones and other multifunctional devices to be used. Railroads 

have a vested interest in safety and 

discovering and remedying safety 

repairs. Train accidents are generally 

expensive. In addition, even if a railroad 

prohibited the use of cameras for this, 

employees will be more likely to report 

such defects to FRA. FRA declines to 

refuse railroads the right to impose more 

restrictive use of electronic devices. 

That railroads may impose more 

restrictions than Subpart C allows is the 

primary reason why FRA did not delete 

§ 220.311 (standards for use by 

deadheading employees) as AAR 

requested. AAR voiced its concern that 

a deadheading employee would 

unsafely use an electronic device while 

walking through a yard. This conduct 

would be prohibited under § 220.311 as 

it would be interfering with the 

employee’s personal safety. 

Nevertheless, railroads may choose to 

amend their operating rules to prohibit 

deadheading employees from using 

electronic devices. FRA declines to do 

so, noting that another commenter 

objected to any restrictions for 

deadheading employees. 

Authorized Business Purpose 

An ‘‘authorized business purpose’’ is 

necessary for railroad operating 

employees to use an electronic device 

under the less restrictive circumstances 

of § 220.307, as opposed to § 220.305 

which governs personal electronic 

devices. The Labor Organizations stated 

their concern that a railroad would 

unreasonably expand the definition of 

‘‘authorized business purpose,’’ and 

proposed a definition of ‘‘authorized 

business purpose’’ that, among other 

things, would require approval by FRA 

and would include language stating that 

an ‘‘authorized business purpose’’ is one 

that ‘‘is necessary to report, document, 

or prevent an imminent safety hazard 

* * * ’’ We believe this suggested 

definition is unnecessarily restrictive, 

but are persuaded by the Labor 

Organization’s argument that a railroad 

might consider requiring a railroad 

operating employee to answer questions 

regarding incidents from previous duty 

tours to be an ‘‘authorized business 

purpose.’’ Accordingly, FRA has defined 

the term as ‘‘a purpose directly related 


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to the tasks that a crewmember is 

expected to perform during the current 

tour of duty as specified by the railroad 

in writing.’’ 

Passenger Trains and Considerations 

Related to Use of Railroad-Supplied 

Phones 

Three commenters (Caltrain, Amtrak, 

and an anonymous commenter) were 

specifically concerned about the use of 

electronic devices by passenger train 

railroad operating employees. Caltrain, a 

commuter rail service, requested that 

FRA incorporate a provision of EO 26 

that was not included in the proposed 

rule. The provision Caltrain referred to 

was paragraph (d)(3) of the Order, 

which allows operating employees to 

use railroad-supplied devices within the 

body of passenger trains. Caltrain was 

concerned that the exclusion of this 

provision would limit its ability to 

continue to use Nextel two-way 

communication systems. Those devices 

can receive texts from its centralized 

control facility but cannot transmit text 

messages or make or receive phone 

calls. Caltrain requested that paragraph 

(d)(3) of EO 26 be incorporated into 

Subpart C. That provision reads as 

follows: 

A railroad operating employee may use a 

railroad-supplied electronic or electrical 

device for an approved business purpose 

while on duty within the body of a passenger 

train or railroad business car. Use of the 

device shall not excuse the individual using 

the device from the responsibility to call or 

acknowledge any signal, inspect any passing 

train, or perform any other safety-sensitive 

duty assigned under the railroad’s operating 

rules and special instructions. 

When EO 26 was drafted, FRA 

considered that it would be appropriate 

and necessary for conductors of 

passenger trains to use cell phones or 

other electronic devices as they dealt 

with passengers. For this reason, the 

only restrictions on that use when the 

employee was outside of the cab of the 

locomotive were that the use had to be 

for an approved business purpose and it 

could not interfere with the 

performance safety-sensitive duties. 

Subpart C does not explicitly address 

conductors or other railroad operating 

employees of passenger trains using 

railroad-supplied electronic devices; 

however, Subpart C retains the 

substantive restrictions as set forth in 

EO 26. Conductors of passenger trains 

wanting to use railroad-supplied 

electronic devices outside the 

locomotive must comply with § 220.307, 

requiring the use to be for an authorized 

business purpose, as well as § 220.305, 

which states that the employee may not 

use an electronic device if it would 

interfere with the employee’s safetyrelated duties. Subpart C does not 

otherwise restrict the use of railroadsupplied electronic devices of 

conductors or assistant conductors. 

Caltrain did not specify whether its 

locomotive engineers currently use its 

Nextel system while in the cab. Subpart 

C kept the restrictions of EO 26 

regarding a locomotive engineer using 

railroad-supplied electronic devices; 

engineers may not use them while on a 

moving train, when any member of the 

crew is on the ground or riding rolling 

equipment during a switching 

operation, or when any railroad 

employee is assisting in preparation of 

the train for movement. Assuming 

Caltrain does not fall under the 

exception of § 220.309(f), Caltrain must 

apply for and receive a waiver for its 

locomotive engineers to use its Nextel 

system in other circumstances. FRA 

believes the way that the rule is 

currently written adequately balances 

the needs of passenger train operations 

and safety. Subpart C does not prohibit 

conductors on passenger trains from 

communication channels for purposes 

relating to railroad operations as one 

anonymous commenter, concerned 

about a recent commuter train’s lack of 

air conditioning, implied. 

As previously discussed, Amtrak 

submitted a comment expressing its 

desire for FRA to clarify whether its 

conductors may use GPS technology, 

possibly within the cab of a controlling 

locomotive. Amtrak also requested that 

FRA explicitly allow railroad operating 

employees to use the cameras of a 

multifunctional device to take pictures 

of safety hazards. Amtrak plans to 

distribute conductor handheld 

electronic devices nationally in 2011. 

Subpart C will allow Amtrak employees 

on passenger trains to use both GPS 

technology and cameras to take pictures 

of safety hazards, provided that these 

uses are specified in writing and do not 

interfere with an employee’s safetyrelated duties. 

If the employee is located inside the 

cab of a passenger train, then a 

conductor may use a GPS application or 

a camera function on a railroadsupplied handheld device if the crew 

has held a safety briefing and all 

crewmembers have unanimously agreed 

that it is safe to use the device. If a 

passenger crewmember is outside the 

cab of a locomotive, a conductor may 

use such a device to photograph a safety 

hazard if the employee complies with 

both § 220.307, requiring the use to be 

for an authorized business purpose, and 

§ 220.303, which states that the 

employee must not use an electronic 

device if it would interfere with the 

employee’s safety-related duties. 

Operational Tests 

Section 220.315 of the NPRM 

contained proposed requirements 

related to operational tests. In response, 

FRA received three comments from 

AAR, NTSB, and the Labor 

Organizations. AAR’s comment stated 

that it was not clear on the meaning of 

proposed § 220.315(c) and questioned 

whether FRA implied that employees 

were supposed to be aware that 

operational tests were occurring. AAR 

asked for clarification from FRA on this 

point. In response, FRA did not intend 

that railroad employees must be notified 

that an operations test will occur or is 

occurring under proposed § 220.315(c). 

The explanation for that proposed 

provision was intended to convey that 

once railroad employees became aware 

that an operations test was occurring, 

that even if use of electronic devices 

was otherwise permissible under the 

proposed regulation, that they refrain 

from use of any devices until the 

completion of the test. This provision 

was intended to help ensure that 

employees could achieve the maximum 

learning benefit from operational tests. 

However, in light of AAR’s comment 

that the provision was confusing, and 

after further review, FRA has decided to 

delete proposed § 220.315(c) from this 

final rule. FRA decided to do so as in 

most circumstances, other than a banner 

test, employees are not even aware an 

operational test is underway until after 

the test is completed. Thus, the 

proposed provision may not have been 

of much practical utility, and could 

have led to additional confusion. 

The NTSB’s comment stated that FRA 

should provide more guidance to 

develop uniform standards of guidance 

across the railroad industry. NTSB 

stated that the use of in-cab audio and 

image recordings could be used as a 

deterrent, and reiterated a 

recommendation published as a result 

of the Chatsworth, California, Metrolink 

crash. That recommendation is that FRA 

require the installation of inward-facing 

video cameras and also require that 

railroads regularly review the images 

recorded on these cameras. 

In response to NTSB’s comment, FRA 

has left to the railroads’ discretion how 

to conduct operational tests on the 

requirements of this subpart, but has 

required that those tests shall be 

included in a railroad’s program of tests 

under 49 CFR part 217. FRA has also 

required that a railroad’s program be 

revised to include a minimum number 

of tests that must be performed. This is 

consistent with FRA’s approach to 


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allowing railroads the discretion to best 

tailor testing to their specific operating 

situations and needs. FRA currently 

does not have regulations mandating 

inward-facing video cameras on 

locomotives to monitor employee’s 

actions while operating trains. As 

NTSB’s comment mentioned, requiring 

such cameras could raise potential 

privacy concerns. Further, no FRA 

regulations preclude railroads from 

installing inward-facing cameras at their 

own discretion should they want to 

monitor their employees actions, as 

some railroads currently do. Also, 

requiring inward-facing video cameras 

was outside the scope of the NPRM. 

Finally, 49 CFR 229.135 currently 

requires that most controlling 

locomotives be equipped with event 

recorders. Event recorders allow 

railroads to monitor how trains are 

operated by their employees. 

The Labor Organizations’ comment 

requested that FRA expand the 

proposed § 220.315(b) prohibition on 

calling the device of a locomotive 

engineer on a moving train. The 

comment proposed text that would 

prohibit railroad managers from calling 

the devices of all crewmembers during 

additional periods. In response to the 

Labor Organizations’ comment, FRA has 

decided to amend the text of proposed 

§ 220.315(b) in this final rule. FRA has 

included all railroad operating 

employees rather than just locomotive 

engineers, expanded the provision to 

prohibit railroad managers from calling 

the devices of employees during 

additional safety-critical times rather 

than only when on a moving train, and 

limited the prohibition to calls when the 

manager knew or should have known 

that the crew was occupied with safetycritical duties. FRA has chosen to make 

these changes because structured 

operational tests are supposed to be failsafe tests that do not create dangerous 

situations. The periods of time this final 

rule mandates that an employee’s 

personal device must be turned off 

signify that the employee is performing 

a safety-sensitive function. Therefore, 

calling the operating employee’s cell 

phone during those periods of time 

could create a distraction that the 

operational testing officer cannot 

control if the device is not turned off. 

As such, the rule has been expanded to 

include those times when operating 

employees on riding moving equipment, 

on the ground, or assisting in the 

preparation of their train for movement. 

By expanding this provision, FRA 

intends to reduce the risk of operational 

tests creating potentially dangerous 

situations. 

Instruction 

Section 220.313 of the NPRM 

contained the proposed instruction 

requirements for this regulation. AAR 

commented that the proposed schedule 

in that section was impractical and that 

the instruction requirements were 

unnecessary. AAR stated that because 

EO 26 has been in place since October 

2008, railroads and their employees 

have experience with prohibitions on 

electronic devices, and thus do not need 

any further instruction. The comment 

stated that there has not been a showing 

that employees do not understand the 

existing prohibitions, and also that a 

formal approval process for instruction 

programs is not needed. AAR also 

commented that it was 

counterproductive to train employees 

on both relevant railroad operating rules 

and on the requirements of this new 

subpart, stating that this could lead to 

confusion among employees. AAR 

stated that because of this potential 

confusion, that proposed 

§ 220.313(a)(2)(iii) is unnecessary. 

AAR’s comment proposed an alternate 

§ 220.313 for FRA to consider adopting. 

After reviewing AAR’s comment, FRA 

continues to believe that the proposed 

instruction section for this regulation is 

necessary. This final rule is 

substantively different from EO 26, and 

thus railroad operating employees 

should be properly apprised of its 

updated provisions and of the 

consequences for non-compliance. If 

employees are going to be operationally 

tested on the requirements of this 

subpart as § 220.315 requires, then FRA 

must also require that employees be 

instructed on these requirements. The 

instruction requirements found in 

§ 220.313(a)(2) are minimal, as FRA 

only specifically requires that 

employees be instructed on when 

personal devices must be turned off, 

when railroad-supplied devices may be 

used, and the distinction between 

possible penalties for violations of this 

new subpart and corresponding railroad 

operating rules. FRA specifically 

mentioned these three points to 

emphasize their urgent importance. As 

discussed in the NPRM, employees need 

to be made aware of the distinction 

between the consequences of violating 

railroad operating rules and the 

consequences of violating FRA’s 

regulation, as the potential 

consequences of violation of this 

regulation, in terms of liability, are quite 

different from those of the railroad’s 

system of sanctions. Other than these 

listed minimal requirements, railroads 

are free to use their discretion in 

instructing their employees on the 

requirements of this subpart. AAR’s 

comment did not elaborate why it 

believes that no further instruction is 

necessary on this subject, other than 

that EO 26 has been in place since 

October 2008 and railroads already have 

rules in place regarding electronic 

device use. FRA’s response is that it 

continues to find that violations of EO 

26 are occurring, and, that incidents 

continue to occur where electronic 

device use is a contributing factor. FRA 

believes that instruction on the 

requirements of this subpart could help 

to alleviate some future incidents, 

especially when the consequences of 

non-compliance with FRA regulations 

are explained. In the future, should FRA 

add violations of this subpart as 

revocable violations for locomotive 

engineers and conductors as it is 

contemplating, it is critical that 

employees have been instructed on 

these distinctions. 

Next, FRA is not requiring that 

railroads submit their programs under 

this section for approval, but merely 

reserves the right to review a railroad’s 

program. The recordkeeping 

requirement is present so that FRA has 

a mechanism to ensure that instruction 

is indeed being performed as required, 

similar to other similar provisions found 

in FRA’s safety regulations. FRA has 

built flexibility into the recordkeeping 

requirement to allow for the use of 

electronic records. Also, the dates that 

FRA has decided on for implementing 

§ 220.313 fall in line with those 

suggested by AAR in its comment. This 

final rule will be published in advance 

of when AAR states most railroads 

finalize their instruction schedules. The 

regulation will also allow for sufficient 

time for employees to be instructed in 

the first quarter of 2011, which AAR 

indicates is industry norm. 

Regulatory Impact Analysis 

In its comment, AAR takes issue with 

FRA’s assertion that, ‘‘by virtue of FRA 

promulgating prohibitions on the use of 

electronic devices, the use of such 

devices at inappropriate times and the 

number of accidents attributable to such 

use would decrease.’’ AAR believes that 

FRA’s assertion is unsubstantiated, that 

railroad operating rules go further in 

restricting the use of electronic devices 

than the proposal, and that ‘‘there is no 

evidence that FRA prohibitions on the 

use of electronic devices will have a 

greater effect than railroad operating 

rules on the use of electronic devices or 

accidents attributable to their use.’’ 

FRA clarifies that the safety impact of 

promulgating Federal restrictions on the 

use of electronic devices is incremental 

in nature. This safety impact is largely 


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12There are also possible sanctions applicable to 

the employer both in Emergency Order 26 and the 

proposed rulemaking, but these may not be as 

salient in the individual employee’s choice on 

whether to use an electronic device. 

attributable to the restrictions instituted 

by EO 26. FRA believes that Federal 

restrictions on the use of electronic 

devices taken together with existing 

railroad operating rules will have a 

greater effect than solely railroad 

operating rules on the use of electronic 

devices or accidents attributable to their 

use. FRA is not claiming that the 

additional or incremental impact of 

Federal restrictions is greater than the 

impact of the railroad operating rules. 

This rule does not, of course, supplant 

railroad operating rules; it complements 

railroad operating rules. The deterrent 

effect of the Federal restrictions is 

cumulative with that of railroad 

operating rules. That is, operating rules 

presumably already have some deterrent 

effect on the improper use of electronic 

devices because of the implicit or 

explicit threat of punitive actions, such 

as dismissal from employment, that 

employers could take in response to 

violations of its operating rules 

prohibiting the improper use of 

electronic devices. Federal intervention 

adds yet another possible consequence 

to the improper use of electronic 

devices: Possible sanctions. These 

sanctions would not exist absent 

Federal regulatory action. Thus, prior to 

Emergency Order 26 and this rule, the 

possible consequences of being 

observed improperly using an electronic 

device equaled whatever action the 

employer took against the offending 

employee. Conversely, after the issuance 

of Emergency Order 26 and with this 

rulemaking, the possible consequences 

of being observed improperly using an 

electronic device equal the actions taken 

by the railroad plus any FRA sanctions, 

which may include civil penalties, the 

removal from safety-sensitive service, 

and disqualification from safetysensitive service on any railroad.12

The existence of a Federal rule may 

also serve to raise general employee 

awareness and signal the importance of 

the safety implications of improper 

usage of electronic devices. However, as 

a point of further clarification, it is not 

necessarily solely the act of restriction 

or the existence of a Federal rule alone 

that would be expected to incrementally 

affect individual behavior. A principal 

mechanism for effecting change in 

employee behavior is the possibility of 

sanctions for the inappropriate use of 

electronic devices. As the RIA that 

accompanied the NPRM states, by 

including the possibility of individual 

sanctions for the inappropriate use of 

electronic devices, ‘‘FRA effectively 

increased the cost of performing railroad 

operations while distracted by 

electronic devices. FRA believes, in 

accordance with economic theory, that 

such an increase in the cost of 

performing railroad operations while 

distracted by electronic devices will 

lead individuals to choose to engage in 

such activities less often, resulting in 

safer railroad operations.’’ 

Furthermore, by creating Federal 

restrictions on the unsafe use of 

electronic devices with EO 26 and 

codifying the restrictions with this rule, 

FRA increases the probability of FRA 

inspectors observing, and thereby 

documenting, an employee who chooses 

to improperly use an electronic device 

in disregard of railroad operating rules 

and Federal regulations. This is because 

FRA inspectors have limited 

enforcement capability with respect to 

railroad operating rules that are not 

based on Federal regulations. Inspectors 

may write defects for observations of 

failure to follow railroad operating 

rules, but defects do not carry any sort 

of civil penalties on either the railroad 

or its employees. Furthermore, although 

inspectors generally write defects when 

they observe violations of railroad 

operating rules, inspectors may not be 

as focused on observing non-compliance 

with railroad operating rules, compared 

to observing non-compliance with 

Federal rules and emergency orders. In 

contrast, FRA inspectors have definite 

enforcement capabilities with respect to 

Federal regulations and emergency 

orders. Through the promulgation of 

Federal restrictions on the improper use 

of electronic devices, FRA inspectors 

become active enforcers of these 

restrictions, and such enforcement 

becomes a high priority for inspectors. 

As a result, the probability of FRA’s 

observing an employee improperly 

using an electronic device increases. 

FRA also notes that railroad operating 

rules are subject to change at the 

railroad’s discretion, without notice to 

FRA, and can vary from railroad to 

railroad. A Federal regulation limiting 

the use of electronic devices would 

ensure a uniform minimum standard 

that could only be revised with 

opportunity for notice and comment. A 

Federal regulation would also apply to 

new railroads. 

FRA asserts that issuance of this 

regulation will further reduce risk and 

incrementally raise safety levels. The 

magnitude of the decrease in risk is 

uncertain due to the lack of empirical 

data regarding electronic device usage 

in railroad operations. To address this 

uncertainty, the RIA contained a 

multitude of break-even analyses that 

inform decision-makers as to how much 

of a decrease in the probability of an 

accident caused by electronic device 

usage would be necessary for the 

expected benefits of the rule to exactly 

equal the expected costs. 

Other Comments 

FRA received other comments that 

may not have addressed a specific 

provision of the NPRM, or that are not 

addressed in this section or in the 

Section-by-Section Analysis below. Five 

of those comments came from 

individuals, with a sixth submitted by 

the National Safety Council. The 

National Safety Council submitted a 

white paper dated March 2010, titled 

Understanding the Distracted Brain. 

This document addresses the distracted 

driving problem, and contains an indepth discussion explaining that the use 

of even hands-free cell phones does not 

eliminate driver distraction. The 

document further explains that 

multitasking impairs a driver’s 

performance. FRA is appreciative that 

the National Safety Council submitted 

this document, as it helps further 

illustrate the necessity of regulations 

prohibiting the use of distracting 

electronic devices while performing 

safety-critical functions such as driving, 

operating a train, or flying. 

Next, FRA received two comments 

from individuals who are generally 

opposed to this regulation. One 

commenter did not believe this 

regulation would be effective, stating 

railroads already have operating rules in 

place prohibiting the use of electronic 

devices, and that this will be a more 

monetarily costly rule than predicted. 

The commenter also stated that certain 

electronic devices have utility in the 

railroad setting. In response, although 

railroads have operating rules in place 

regarding the use of electronic devices, 

the incidents referenced above and in 

the NPRM have shown those rules are 

not an effective deterrent to keep 

railroad employees from using 

distracting devices in a manner that 

severely impacts safety. Thus, FRA 

views this regulation as necessary. 

Further, FRA has built in exceptions to 

this rule that the commenter discusses 

in order to accommodate technologies 

that are beneficial to railroad operating 

environments and do not detract from 

safety. The second individual 

commenter states the regulation should 

only apply to employees on moving 

trains, and that cell phones can help 

save lives in an emergency if left on. 

FRA disagrees, as there are other safetycritical times when operating employees 

are on the ground where electronic 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59591 

device distraction can have severe 

consequences, such as when performing 

an inspection. Illustrating such is a 

December 2, 2009, Norfolk Southern 

train derailment. The train stopped after 

a detector alerted the crew to a problem, 

and while inspecting the train the 

conductor failed to notice a freight car 

that had already derailed. The 

conductor’s cell phone records 

indicated personal cell phone use 

occurred during the period of time he 

was supposed to be inspecting the train. 

The train then continued on its route 

and a large-scale derailment occurred a 

short distance later. 

An individual commenter expressed 

general support for additional regulation 

of electronic devices, referencing a 

fellow operating employee’s extensive 

cell phone use. Another commenter was 

strongly opposed to ever giving 

railroads access to an employee’s 

personal cell phone records. As 

indicated above, FRA did not propose 

such in the NPRM. Finally, an 

anonymous commenter submitted a 

comment after the comment period had 

closed which discussed the June 21, 

2010, MARC commuter train incident 

where passengers were stuck on a 

malfunctioning train for a lengthy time 

period without air conditioning during 

extremely hot weather conditions. The 

comment stated the final rule should 

not preclude railroad employees from 

using alternative channels to 

communicate to avoid future situations. 

As explained above and in the Sectionby-Section Analysis, FRA has built 

exceptions into this rule to account for 

varying operating situations, with 

particular flexibility for railroadsupplied devices. The final rule also 

contains an exception allowing for the 

use of devices to respond to emergency 

situations. 

III. Section-by-Section Analysis 

All section references below refer to 

sections in Title 49, Part 220 of the Code 

of Federal Regulations (CFR). The NTSB 

asked FRA to identify sanctions for 

violating this subpart. As part of FRA 

regulations, railroads and individuals 

violating of these provisions are subject 

to civil penalties under 49 U.S.C. 21301. 

Individuals who violate the final rule 

also may be possibly removed from 

safety-sensitive service under 49 U.S.C. 

20111, and, in the future, 49 CFR Part 

240 may be amended to revoke the 

locomotive engineer certification of 

engineers who fail to comply with these 

restrictions. 

Amendments to 49 CFR Part 220 

(Part 220) 

Section 220.1 Scope 

FRA amends the scope of § 220.1 to 

include the new Subpart C. The 

amendment states that part 220 now sets 

forth prohibitions, restrictions, and 

requirements for the use of electronic 

devices. It also establishes that these are 

only minimum restrictions that must be 

complied with and that railroads are 

free to impose stricter prohibitions at 

their discretion. 

Section 220.2 Preemptive Effect 

FRA is removing this section from 49 

CFR part 220 (part 220). This section 

was prescribed in 1998 and has become 

outdated and, therefore, misleading 

because it does not reflect post-1998 

amendments to 49 U.S.C. 20106. Such a 

section is unnecessary because 

49 U.S.C. 20106 and 20701–20703 and 

case law under those statutory 

provisions sufficiently address the 

preemptive effect of part 220. In other 

words, providing a separate Federal 

regulatory provision concerning part 

220’s preemptive effect is duplicative of 

statutory law and case law and, 

therefore, unnecessary. 

There has been no opportunity for 

public comment on this particular 

amendment in the final rule. FRA has 

determined, pursuant to section 4 of the 

Administrative Procedure Act (5 U.S.C. 

553), that prior notice and an 

opportunity for comment on the 

removal of § 220.2 are not necessary. 

The amendment is administrative in 

nature and merely eliminates an 

outdated and incomplete restatement of 

the preemptive effect of part 220. FRA 

is not exercising its discretion in a way 

that could be informed by public 

comment. As such, FRA finds that 

notice and public comment procedures 

are ‘‘impracticable, unnecessary, or 

contrary to the public interest’’ under 5 

U.S.C. 553(b)(3)(B). 

Section 220.5 Definitions 

FRA amends the existing ‘‘definitions’’ 

section for part 220 by both adding new 

definitions and amending an existing 

definition. FRA adds new definitions for 

the following terms: Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, authorized business 

purpose, earpiece, electronic device, 

fouling a track, FRA, in deadhead status, 

medical device, personal electronic 

device, railroad operating employee, 

railroad-supplied electronic device, and 

switching operation. FRA also amends 

part 220’s existing definition of ‘‘train.’’ 

Of the new terms that FRA adds to 

this section, most of them had been 

previously defined in the Order, and 

proposed in the NPRM. Some of those 

definitions have been amended slightly 

to be more efficiently focused toward 

accomplishing the goals of this final 

rule. For example, as explained in the 

NPRM, in describing ‘‘electronic 

device,’’ FRA broadens that description 

from that found in the Order to ensure 

that the definition in this final rule 

includes electronic book-reading 

devices or devices used to replicate 

navigation of the physical world. We 

have also excepted locomotive 

electronic control systems and digital 

timepieces from the definition. The first 

exception makes clear that this subpart 

does not affect the use of any control 

systems or displays in the cab of a 

locomotive that facilitate the operation 

of a train. We have specified that the 

control systems may be fixed or 

portable, and expanded the definition 

by removing the phrase ‘‘for a 

locomotive engineer’’ in recognition that 

devices under a conductor or other 

crewmember’s control may be necessary 

to operate a train in response to AAR’s 

comment that requested both of these 

minor changes. This rule instead 

obviously intends to address electronic 

devices that are not part of those 

systems. In addition, FRA expects that 

a device mentioned in AAR’s comment 

(one to calculate where a locomotive 

horn should be sounded) would be 

considered to be part of the control 

system. 

The second exception allows railroad 

operating employees the use of digital 

clocks or wristwatches whose primary 

functions are as timepieces. Timepieces 

are commonly used in the railroad 

industry to verify the accuracy of a 

locomotive’s speed indicator. This 

function is safety-related in that it 

accurately allows a train crew to comply 

with relevant track speed limits during 

the course of a train’s movement. FRA 

notes that this specific provision is 

limited to allowing the use of a 

stopwatch, wristwatch, or other similar 

device whose primary function is the 

keeping of time. This provision does not 

allow for the use of other devices, such 

as a cell phone or a personal digital 

assistant, that might have a stopwatch 

function but whose primary purpose is 

not that of a timepiece. FRA has so 

limited this exception specifically to 

timepieces as enforcement otherwise 

would be difficult, but also primarily to 

avoid the potential for distraction when 

an employee might turn on a cell phone 

with a stopwatch function in order to 

verify the train’s speed, but then might 

proceed to use that device in an 

otherwise impermissible manner. 


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FRA has also chosen to refer to an 

‘‘electronic or electrical device’’ as only 

an ‘‘electronic device’’ in the rule. We 

have done so both for the purposes of 

complying with plain language 

directives and for brevity. We have also 

done so because ‘‘electronic device’’ is a 

more accurate descriptor of the devices 

meant to be subject to this rule. The 

definition of ‘‘railroad operating 

employee’’ has also been changed from 

that found in the Order. We have 

attempted to clarify which employees 

are covered by this rule in order to 

avoid inadvertent over-inclusion. The 

definition of ‘‘railroad-supplied 

electronic devices’’ has also been 

modified from the Order to mean that 

the term refers only to devices that are 

provided for a business purpose 

authorized by the employing railroad 

and not being used for something other 

than an authorized business purpose. 

FRA has slightly changed that definition 

in order to focus more narrowly on 

which devices will be considered 

railroad-supplied. 

In addition, the definition of 

‘‘railroad-supplied electronic device’’ 

and ‘‘personal electronic device’’ have 

both been altered somewhat from the 

definitions proposed in the NPRM. NJT 

requested and received a brief meeting 

with FRA officials, documented in the 

docket, raising the issue that it, as well 

as at least one other railroad, allows its 

employees limited personal use of 

phones the railroad provides for 

business purposes. How the electronic 

devices are being used at any given 

moment determines what standardsthose for personal or railroad-supplied 

devices-should apply. The definition 

railroad-supplied electronic device was 

slightly altered to clearly reflect such. 

The amended definitions make clear 

that when a railroad-supplied device is 

being used for other than an authorized 

business purpose that for the purposes 

of this regulation that the device will be 

treated as a personal electronic device. 

The only truly new definitions that 

were not established in some form in 

the Order are for the following terms: 

‘‘Associate Administrator for Railroad 

Safety/Chief Safety Officer,’’ ‘‘authorized 

business purpose,’’ ‘‘earpiece,’’ ‘‘in 

deadhead status,’’ and ‘‘medical device.’’ 

However, these definitions were 

proposed in the NPRM. FRA adds a 

definition for the term ‘‘in deadhead 

status’’ because below in § 220.311 we 

explain that railroad operating 

employees in deadhead status are 

subject to somewhat different 

prohibitions on the use of electronic 

devices than are employees who are 

actively engaged in their assigned 

duties. The definition that we have is 

similar to and consistent with the 

existing definition of ‘‘deadheading’’ 

found in existing 49 CFR 228.5. FRA 

also adds the term ‘‘medical device’’ to 

the ‘‘definitions’’ section, as below we 

explain that the use of any electronic 

medical devices consistent with a 

railroad’s medical fitness for duty 

standards is exempt from the 

restrictions of this subpart. FRA wishes 

to make clear that medical devices such 

as hearing aids or blood sugar monitors 

are exempt from the prohibitions that 

this rule puts forth. FRA finds that these 

devices do not detract from rail safety, 

but they may actually enhance safety in 

some circumstances for obvious reasons. 

Two of the comments requested 

changes to the definition section. As 

noted above, in response to the Labor 

Organizations’ comment, FRA is adding 

a definition for ‘‘authorized business 

purpose.’’ AAR requested that FRA 

amend its definition of ‘‘fouling a track’’ 

to ‘‘an individual in such proximity to 

a track that the individual could be 

struck by a moving train or other ontrack equipment.’’ It reasoned that there 

would be times when, because of a wall 

or other physical restriction, an 

employee might not be able to move 

four feet away from the track to answer 

a phone call. FRA believes this scenario 

will be extremely rare and does not 

outweigh FRA’s interest in consistency 

among its regulations: FRA’s definition 

stems from 49 CFR 214.7. In addition, 

FRA believes that a measurement of four 

feet can be easier for employees to 

assess than trying to judge how close a 

train or on-track equipment will be. 

Next, FRA amends the existing 

definition of a ‘‘train’’ in § 220.5. The 

existing definition specifically 

references a train for purposes of 

existing Subparts A and B to include 

‘‘one or more locomotives coupled with 

or without cars requiring an air brake 

test in accordance with 49 CFR part 232 

or 238 * * *’’. The existing definition 

resulted from FRA’s work with an RSAC 

Working Group and intentionally meant 

to exempt certain trains and switching 

operations from the existing part 220. 

That existing definition will still apply 

to Subparts A and B. However, we 

define ‘‘train’’ for purposes of Subpart C 

to go beyond locomotive or locomotives 

coupled to one or more cars that are 

subject to the requirements of an air 

brake test. We use a more inclusive 

definition of ‘‘train’’ in order to apply the 

prohibitions on use of electronic devices 

to all switching movements. 

Finally, FRA has eliminated one 

definition from this rule that appeared 

in the Order. The term ‘‘wireless 

communication device’’ has been 

eliminated, as the term ‘‘working 

wireless communications’’ is already 

included in existing § 220.5, and 

encompasses the substance of what FRA 

attempted to convey with that definition 

in the Order, and also because the 

devices described in that definition are 

already addressed by other provisions of 

this rule. 

Subpart C—Electronic Devices 

Section 220.301 Purpose and 

Application 

FRA amends Part 220 by adding a 

new Subpart C. FRA’s purpose for 

promulgating this subpart is to limit 

distractions caused by electronic 

devices to railroad crews. FRA means to 

limit these distractions in its effort to 

improve railroad safety and prevent 

incidents such as those mentioned in 

the preamble above, where loss of 

human life, injuries, and property 

damage may have been attributable to 

distraction by these devices. FRA notes 

that this subpart sets forth minimum 

standards that must be complied with, 

yet we fully anticipate that railroads 

will implement even stricter guidelines 

via operating rules. This is consistent 

with both existing and § 220.1, which 

provides that part 220 only sets 

minimum standards that must be 

complied with, but that railroads may 

adopt additional, more stringent, 

requirements. 

Section 301 of this subpart describes 

both its purpose and application. 

Paragraph (a) of this section merely 

restates the subpart’s purpose as 

described above. Paragraph (b) makes 

clear that the subpart does not affect the 

use of working wireless 

communications that railroads use 

under the authority of existing Subparts 

A and B. Paragraph (c)(1) explains that 

this regulation also does not in any way 

affect the use of railroad radios. Railroad 

radios are an essential part of daily 

operating practices, and FRA wishes to 

make explicit that this new subpart does 

not apply to their use. Paragraph (c)(2) 

of this section explains that in the event 

of a working railroad radio failure, that 

locomotive engineers or conductors may 

use electronic devices provided that use 

is in accordance with the applicable 

railroad’s operating rules. FRA 

recognizes that, in certain instances, the 

use of an electronic device such as a cell 

phone in place of a malfunctioning 

radio may actually enhance safety rather 

than harm it. For example, should a 

crew need to contact a train dispatcher 

regarding their train’s movement, a cell 

phone might in certain instances be the 

best means of reaching such a person in 

the event of a radio failure, and may 

provide a higher level of safety than not 


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being able to make contact at all. So 

long as the device is used with the 

parameters of railroad operating rules, 

FRA has made this exception to the 

prohibitions on use of electronic devices 

discussed below. 

Section 220.302 Operating Rules 

This section is a new provision that 

was not included in the NPRM, but was 

referred to in § 220.313 where it was 

proposed that railroads instruct their 

employees on the operating rules 

implementing the requirements of this 

subpart. The reason for including this 

provision in the final rule is to ensure 

each railroad adopts operating rules that 

comply with the requirements of this 

subpart. As explained above, railroads 

are free to adopt more stringent 

requirements than those adopted here, 

but this provision ensures railroads 

cannot adopt operating rules that are 

less stringent than or are contrary to this 

final rule. FRA is aware that most 

railroads already have operating rules in 

place governing the use of electronic 

device by their operating employees. 

However, at its discretion a railroad is 

also free to simply adopt the text of this 

subpart as its operating rule. If the 

railroad provides electronic devices to 

its employees, however, it must specify 

authorized business purposes in written 

procedures that are distributed to 

employees. 

As stated above, FRA did not propose 

this section in the NPRM. However, this 

section is within the scope of the NPRM 

as it merely provides a mechanism for 

FRA to enforce this final rule and to 

ensure that railroads implement the 

requirements of the final rule. Further, 

as mentioned above, reference to 

railroads being required to have 

operating rules implementing the 

requirements of this subpart was 

proposed in § 220.313 of the NPRM. 

Section 220.303 General Use of 

Electronic Devices 

FRA adds § 220.303 to this subpart to 

set forth general guidance regarding the 

use of electronic devices. This section 

would prohibit railroad operating 

employees from using electronic devices 

in any way that would detract from 

railroad safety, irrespective of the other 

specific provisions and exceptions to 

this rule. This provision reinforces 

FRA’s overarching mission of ensuring 

safety while railroad employees are 

performing their duties. As discussed 

above, distractions resulting from the 

use of electronic devices can result in 

railroad accidents that have catastrophic 

consequences. This paragraph is also 

meant to encompass other potential uses 

of electronic devices that may arise 

outside those detailed or contemplated 

by this rule or by railroad operating 

rules. 

The Labor Organizations’ pointed out 

that individuals beside railroad 

operating employees could be in the cab 

of a locomotive at critical times and 

could distract those employees from 

their safety-related duties. FRA adopted 

the view that no one in the cab of a 

controlling locomotive should use an 

electronic device in a way that distracts 

a railroad operating employee from a 

safety-related duty and amended 

§ 220.303 accordingly. 

Section 220.303 is intended to be 

restrictive, as FRA views any use of 

electronic devices not contemplated in 

this subpart as capable of distracting 

employees while on duty. A commenter 

suggested that FRA prohibit everyone, 

including members of the public, who is 

fouling a track from using cell phones. 

While limiting members of the public is 

outside the scope of the NPRM, FRA 

believes that this provision will limit 

the most hazardous use of electronic 

devices by the individuals most often as 

risk. 

Section 220.305 Use of Personal 

Electronic Devices 

This section prohibits the use of 

personal electronic devices while any 

safety-related duty is being performed. 

This provision governing personal 

electronic devices is self-explanatory, 

and is meant to be more restrictive than 

provisions governing railroad-supplied 

electronic devices. See § 220.307 

discussed below. Provisions (a) through 

(c) of this section dictate certain safetycritical times during which each 

personal electronic device must be 

turned off with any earpiece removed, 

and are meant to encompass the 

situations in which FRA finds it is 

absolutely impermissible to use a 

personal electronic device. FRA notes 

that compliance with this section might 

have prevented many of the accidents 

described above and in the Order that 

occurred as a result of distraction 

caused by electronic devices. 

Section 220.307 Use of RailroadSupplied Electronic Devices 

This section addresses the use of 

electronic devices that are supplied by 

the railroad to employees and are 

currently being used for business 

purposes. Paragraph (a) sets forth the 

general restriction that any use of these 

devices must be in accordance with 

railroad instructions for authorized 

business purposes as determined by the 

railroad. FRA also wishes to make clear 

that the use of railroad-supplied devices 

contemplated by this provision is 

limited to those authorized by the 

railroad in writing. In addition, uses 

involving the taking of photographs and 

videos must be approved by FRA. This 

is to prevent, for example, a 

crewmember using a camcorder for an 

entire trip. 

Paragraph (b) sets forth the specific 

instances where FRA prohibits any use 

of railroad-supplied electronic devices 

by a locomotive engineer who is at the 

controls of a train. Similar to the 

conditions set out in § 220.305, 

paragraph (b) of § 220.307 describes 

specific instances where FRA finds 

distraction by electronic devices 

impermissibly interferes with railroad 

safety. While the actions specified in 

paragraph (b) are taking place, it is 

imperative that a locomotive engineer 

be attentive to his or her duties and not 

be distracted by any electronic device, 

regardless of whether that device is 

railroad-supplied or not. FRA also notes 

that paragraph (b)(3) of this section 

encompasses those times when 

passengers are boarding or alighting 

from a train. For example, it would be 

a violation of this regulation if a 

locomotive engineer at the controls of a 

passenger train was using a railroadsupplied electronic device while the 

train was stopped and passengers were 

boarding. Paragraph (c) sets forth the 

circumstances under which an 

operating employee other than a 

locomotive engineer in the situations 

described in paragraph (b) may use a 

personal electronic device while located 

in the cab of a controlling locomotive. 

In its NPRM, FRA proposed that 

paragraph (c) only permitted use of a 

mobile telephone or remote computing 

device under the conditions of that 

paragraph. FRA has reconsidered and 

believes that limiting use to a mobile 

telephone or remote computing device 

would be overly restrictive and possibly 

limit the use of helpful technologies that 

emerge. Devices used in these 

circumstances may only be used if a 

safety briefing is held by all 

crewmembers in the locomotive, who 

must come to an agreement that it is safe 

to use the device. It is FRA’s intent that 

the permissible use of these devices 

under this paragraph must be for a 

railroad-related purpose, e.g., to contact 

a dispatcher, control operator, or 

yardmaster. It is not permissible to use 

the mechanisms provided by this 

section to use an electronic device for a 

personal use, such as making a personal 

phone call or watching a movie. When 

an employee uses a railroad-supplied 

device for personal reasons, the device 

is considered a personal device and 

governed accordingly. This provision 

and the provision found in paragraph 


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(d) of this section discussed below both 

state that they apply only to employees 

who are not in deadhead status. 

Different rules apply to employees in 

deadhead status, as is explained below 

in the analysis to § 220.311. 

Paragraph (d) of § 220.307 explains 

the conditions under which it is 

permissible for an operating employee 

who is outside the cab of a controlling 

locomotive to use a railroad-supplied 

device. It sets forth two conditions that 

must be met for that use to be permitted. 

The first condition is that no 

crewmember may be fouling a track. 

The second condition, at paragraph 

(d)(2) of this section, states that all 

crewmembers agree it is safe to use the 

device. An instance described in the 

background section of the Order 

discusses an incident that occurred on 

December 21, 2005, when a contractor 

working on The Kansas City Southern 

Railway Company was struck and killed 

by a train after fouling a track while 

allegedly talking on a cell phone. 

Although in that case the incident 

involved a contractor who was 

apparently not a train employee, FRA 

notes that compliance by operating 

employees with the provisions of 

paragraph (d) would eliminate any 

similar occurrences among operating 

employees resulting from the 

impermissible use of electronic devices. 

In the Order and as proposed in the 

NPRM, a railroad operating employee 

had to ensure that switching operations 

were suspended to use a railroadsupplied device in these circumstances. 

Because of this, AAR requested an 

exception for employees to use railroadsupplied devices inside buildings. It 

also recommended that FRA have 

§ 220.307(c) cover employees inside and 

outside the cab and delete paragraph (d) 

completely. FRA has loosened the 

restrictions of paragraph (d) in response 

to these concerns; however, it does not 

add an exception for employees inside 

buildings. FRA believes that crews 

should function as a unit during any 

particular operation and does not see an 

advantage to have one employee leaving 

a train to go into a building to use an 

electronic device. FRA believes that 

requiring the employee not to be fouling 

a track and having other crewmembers 

to agree it is safe to use a device will 

provide adequate safeguards without 

operations suspended, especially since 

any use must be for an authorized 

business purpose and cannot interfere 

with a railroad operating employee’s 

performance of safety-related duties. 

Section 220.309 Permitted Uses 

This section establishes six uses of 

electronic devices that FRA finds to be 

permissible. This list is intended to be 

exhaustive. FRA has specifically 

weighed other exceptions and uses, 

such as the proposed GPS device and 

personal emergency exceptions 

discussed above. After contemplating 

those other uses, at this time FRA does 

not agree there is a need for further 

permitted use of electronic devices 

other than those described here. Also, as 

stated in the text of this section, these 

permitted uses are subject to the 

requirement that the use not interfere 

with any employee’s safety-related 

duties. This is consistent with the 

overall goals of this rule, and also 

specifically with the general prohibition 

established by § 220.303 discussed 

above. 

Paragraph (a) of § 220.309 refers to 

electronic storage devices that 

specifically hold relevant operating 

documents that a crew might need to 

access during the normal course of their 

duties, as FRA is aware that some 

railroads issue devices to their operating 

employees that contain such 

information. FRA views this use as no 

different from a crewmember accessing 

relevant paperwork, such as a railroad 

timetable or train consist, in hardcopy 

form during the course of her duties. 

However, as stated in the text of 

paragraph (a), the use of this device 

must be authorized under an applicable 

railroad operating rule. For example, if 

a freight conductor wished to utilize a 

railroad-supplied electronic device 

while in the cab of the controlling 

locomotive of a moving train for the 

purpose of accessing a railroad 

operating rule, he would be allowed to 

do so if permitted by applicable railroad 

operating rules. If railroad operating 

rules more stringent than those 

provided by this subpart prohibited the 

use of that device while on a moving 

train, then that use would be 

disallowed. 

Paragraph (b) of this section 

specifically allows for the use of 

personal electronic devices in response 

to an emergency situation. This 

paragraph is meant to allow flexibility 

to this regulation, as common sense 

dictates that unpredictable emergency 

situations may arise where use of a 

personal electronic device, such as a 

cell phone, may be appropriate. FRA 

contemplated this when it proposed 

§ 220.301(b), which allows for use of a 

personal electronic device in instances 

where a radio failure occurs, but also 

proposes this broader emergency 

exception to build in flexibility where 

common sense dictates. 

Paragraph (c) of this section is 

amended from that proposed in the 

NPRM. This provision specifically 

allows for employees to take a 

photograph of a safety hazard or a 

violation of a rail safety regulation, or 

order outside of those periods of time 

where it would otherwise be prohibited 

by § 220.303 or by § 220.305. However, 

it provides that only cameras may be 

used to take these photographs, unless 

the device is a railroad-supplied device 

as discussed above. A camera that is 

equipped with the ability to take video 

is allowed, but no video may be taken 

under this exception. As stated in the 

rule text, a camera that is part of a 

personal cell phone or other similar 

personal electronic device is not 

included in this exception. To allow 

personal cell phone cameras to be used 

outside the periods of time prohibited 

by § 220.305 would present 

enforceability issues for FRA. More 

importantly, however, FRA also decided 

such because after turning on a device 

such as a cell phone to take a photo, 

FRA does not want to encourage or 

permit an employee to then continue to 

use the device. FRA wishes to avoid 

presenting any temptation once a device 

is turned on to then send text messages 

or engage in other distracting use of 

electronic devices. Use of the camera to 

document such rail safety hazards or 

violations is only permitted where its 

use does not interfere with a 

crewmember’s performance of a safetyrelated duty, is turned off immediately 

after documentation has been made, and 

is not used by a locomotive engineer 

who is at the controls of a moving train. 

FRA realizes the importance of 

documenting hazardous conditions, but 

emphasizes that such documentation 

should only be made when the filming 

of the hazard itself does not create a 

hazardous situation. For the reasons 

explained above in response to public 

comments, FRA has also deleted 

reference to the use of ‘‘video’’ to 

document safety hazards in this final 

rule. An employee taking advantage of 

this exception using a railroad-supplied 

device must be using the device for an 

authorized business purpose that has 

been approved by FRA. 

Paragraph (d) permits the use of a 

calculator. The use of this device is 

common in the railroad industry for 

important safety-related purposes. Train 

tonnage, train length, and train stopping 

formulas are commonly computed using 

a calculator. An example of the safetyrelated reasons for allowing the use of 

a calculator includes the need to 

compute train length accurately so that 

a locomotive engineer (via the 

locomotive’s distance counter) can 

accurately ascertain when his or her 

train has cleared a relevant speed 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59595 

restriction, interlocking, or working 

limits. However, consistent with 

paragraph (c) above, FRA has chosen to 

limit the permissible devices under this 

paragraph to those whose primary 

purpose is as a calculator. FRA will not 

allow the use of another device, such as 

a personal cell phone that might have a 

calculator function. 

Paragraph (e) permits the use of a 

medical device, if that use is consistent 

with the railroad’s standards for medical 

fitness for duty. In putting forth this 

exception, FRA envisioned blood sugar 

monitors used by operating employees 

with diabetes, hearing aids used by 

operating employees with hearing loss, 

etc. The definition of a ‘‘medical device’’ 

was added to the definitions section of 

this part, at § 220.5, as is discussed 

above. FRA finds that the use of these 

devices does not detract from rail safety 

and in many instances may enhance it. 

For example, an operating employee 

with hearing loss who utilizes an 

electronic hearing aid may consequently 

be able to communicate via working 

radio more effectively, resulting in safer 

train operations. 

Paragraph (f) permits the use of 

wireless communication devices for 

crewmembers of trains that are exempt 

from the requirement of a working radio 

under § 220.9(b). That section exempts 

railroads that have less than 400,000 

annual employee work hours from being 

required to have a working radio on the 

controlling locomotive of certain trains 

so long as such usage is limited to 

performing the employees’ railroad 

duties. FRA created this exception to 

allow smaller railroads to continue to 

operate as they are presently permitted. 

The locomotives of these railroads do 

not operate at high speeds, do not 

handle regular passenger traffic, are 

only permitted to operate over joint 

territory in specific, low-speed 

circumstances, and must have working 

wireless communications aboard the 

controlling locomotive of trains 

containing placarded hazardous 

material loads. As such, FRA finds there 

is no safety risk in continuing to allow 

permitted railroads to use wireless 

communication devices in place of 

railroad radios so long as such usage by 

railroad employees is limited to 

performing their railroad duties. It is not 

the intent of this rule to affect in any 

way the use of working wireless 

communications pursuant to existing 

Part 220, as those presently permitted 

business uses have not been problematic 

in regard to safety in the past. This rule 

is instead obviously directed at the type 

of use that occurred in the railroad 

accidents described above. 

Section 220.311 Railroad Operating 

Employees in Deadhead Status 

This section establishes guidelines for 

the use of an electronic device by 

operating employees in deadhead status. 

The definition of ‘‘in deadhead status’’ 

has been added to the ‘‘definitions’’ 

section of this part at § 220.5 as 

discussed above. Paragraph (a) of this 

section allows for employees in 

deadhead status to use electronic 

devices so long as that use does not 

interfere with any employee’s safety or 

the performance of safety related duties. 

FRA created this loosened restriction on 

employees in deadhead status as the 

agency recognizes that while 

deadheading, operating employees 

typically do not have any safety-related 

responsibilities. As stated above, these 

changes amend the restrictions on 

electronic devices put forth in the Order 

in a more appropriate manner to address 

safety concerns. 

However, paragraph (b) of this section 

limits the use of any electronic device 

by employees in deadhead status who 

are located inside the cab of a 

controlling locomotive of a train. 

Employees in deadhead status who are 

located inside the cab of a controlling 

locomotive must follow the identical 

restrictions set forth both in this 

provision and in § 220.305, regardless of 

whether the device is a personal 

electronic device or a railroad-supplied 

electronic device. This is to reflect that 

any use of electronic devices in the cab 

of a controlling locomotive has the 

potential to distract employees engaged 

in safety-related duties, no matter the 

status of person using a device. This 

provision more strictly prohibits the use 

of any railroad-supplied device than 

does § 220.307, as employees in 

deadhead status typically do not have 

any safety-related responsibilities that 

would necessitate use of such devices. 

Section 220.313 Instruction 

This section requires that railroads 

provide instruction to their operating 

employees on the operating rules 

implementing the requirements of this 

subpart. This instruction is necessary as 

employees must be operationally tested 

by railroad supervisors on the substance 

of this regulation, as FRA has required 

in § 220.315(a). By requiring such 

instruction FRA also intends to ensure 

that both railroads and their employees 

are fully aware of the requirements of 

this regulation. FRA has removed the 

word ‘‘training’’ from this final rule, 

because ‘‘instruction’’ is the more 

appropriate descriptor of the education 

this section requires railroads provide 

their employees. Further, the terms were 

duplicative. 

In paragraph (a), FRA requires that 

each railroad maintain a written 

program that will qualify its operating 

employees for compliance with the 

requirements of this final rule. The 

written program may be consolidated 

with the program of instruction required 

under 49 CFR 217.11. FRA has allowed 

railroads 90 days to implement a 

program of instruction, as per AAR’s 

comment that should FRA allow 

railroads appropriate time to prepare 

these programs for presentation to their 

employees in the first-quarter of 2011, 

as is discussed below. Paragraph (a)(1) 

specifically requires that the program 

include instruction on both the 

requirements of this subpart as well as 

consequences of non-compliance. 

Paragraph (a)(2) states that the written 

program must include instruction on 

specific provisions of this rule. 

Paragraph (a)(2)(iii) requires that 

instruction be provided on the 

distinctions between the requirements 

of this regulation and any more 

stringent railroad operating rules. FRA 

has decided to leave this provision in 

the final rule despite AAR’s comment 

discussed above due to the different 

potential consequences involved with 

violation of this subpart versus violation 

of a railroad rule. If FRA were to find 

a probable violation of this regulation 

has occurred, FRA could attempt to take 

action against an individual employee 

by way of its authority to impose a 

monetary civil penalty or 

disqualification of that employee from 

safety-sensitive service. These actions 

are in some instances much more severe 

than those that a railroad might take 

against an individual employee for a 

violation of its operating rules. Also, 

should FRA add violations of this 

subpart as revocable violations for 

locomotive engineers and conductors as 

it is contemplating, it is critical that 

employees have been instructed on 

these distinctions. 

Paragraph (b) sets the implementation 

schedule for this section. Paragraph (b) 

states that within 180 days from the 

publication date of the final rule, 

employees performing duties subject to 

these requirements shall receive 

instruction on the requirements of this 

subpart. FRA has lengthened this time 

period from that proposed in the NPRM 

in order to allow for railroad employees 

to be instructed during first-quarter of 

2011, as AAR’s comment indicates is 

the industry norm. After 180 days from 

the publication date of the final rule, 

FRA expects that new operating 

employees would receive the proper 

instruction before being allowed to 


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perform duties subject to the 

requirements of this subpart. The threeyear recurrent instruction window in 

this paragraph was adopted because it is 

a standard industry practice to requalify employees on rules at least every 

three years. Finally, in paragraph (b)(2), 

FRA requires records maintenance of 

the instruction required by this section, 

which shall serve as documentation that 

employees have been qualified on the 

requirements of this subpart. 

In paragraph (c), FRA requires that 

records discussed in paragraph (b)(2), 

documenting an employee’s instruction 

and examination, be retained at a 

railroad’s division headquarters where 

the employee is assigned. This will 

enable FRA to quickly obtain such 

records upon request if necessary. 

Records must be kept for each employee 

instructed on the requirements of this 

subpart, and must be kept for three 

years after the end of the calendar year 

to which they relate. This paragraph 

allows railroads the discretion to keep 

the required records electronically. 

Paragraph (d) provides a mechanism 

for FRA to review a railroad’s written 

program required under paragraph (a). 

This paragraph requires that the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer only 

disapprove programs of instruction and 

examination required by this section for 

cause stated. As the disapproval 

decision is made for cause, it is 

significant for the railroad to understand 

exactly why FRA is disapproving the 

program; thus, FRA notification of such 

disapproval must be made in writing 

and specify the basis for the disapproval 

decision. If the Associate Administrator 

for Railroad Safety/Chief Safety Officer 

disapproves the program, paragraph 

(d)(1) provides that a railroad is 

required to respond within 35 days by 

either providing submissions in support 

of its program or by amending its 

program and submitting those proposed 

amendments. Paragraph (d)(1)(ii) 

mandates that the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer shall render a final 

decision in writing informing the 

railroad of FRA’s decision. Paragraph 

(d)(2) provides that a failure to submit 

a program with the necessary revisions 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer will 

be considered by FRA to be a failure to 

implement a program under this part. 

FRA is not requiring that each railroad 

submit its program for review and 

explicit approval. Rather, FRA may 

review the programs of railroads in 

connection with review of their overall 

programs of instruction to determine if 

they are effective. 

Section 220.315 Operational Tests and 

Inspections; Further Restrictions on Use 

of Electronic Devices 

This section requires that railroads 

perform operating tests to ensure 

operating employees’ compliance with 

this subpart. FRA is requiring operating 

tests be performed to both ensure that 

railroads provide employee instruction 

on the conditions of this subpart and to 

help verify that the requirements of the 

subpart are being adhered to by railroad 

employees. 

Per Part 217, railroads are already 

required to perform regular operating 

tests. This paragraph adds Subpart C to 

that existing requirement. Paragraph (a) 

leaves to the railroads’ discretion the 

minimum number of operational tests 

that must be performed by referring to 

the guidelines established in 49 CFR 

Part 217, Railroad Operating Rules. 

Paragraph (b) of this section prohibits 

railroad supervisors from calling or 

sending text message to an electronic 

device of an operating employee during 

an operational test while the train to 

which the employee is assigned is 

moving, while the employee is on the 

ground or riding rolling equipment, or 

while the employee is assisting in 

preparation of the train for movement. 

This provision has been expanded from 

that proposed in the NPRM, and is 

meant to prevent an operating test from 

posing potentially dangerous 

distractions that could impact rail 

safety. It is also meant to prevent the 

encouragement of potential rail safety 

violations. 

Finally, for the reasons explained in 

the response to the AAR’s comment 

above, FRA has deleted the proposed 

§ 220.315(c) from this final rule. FRA 

has done so because in most instances, 

employees are not aware an operating 

test is being conducted until after the 

test has already been performed. Thus, 

that proposed provision could have 

created confusion. Further, after 

reviewing comments and deliberating 

the provision, FRA does not believe it 

would have been of significant utility. 

Appendix C to Part 220 Schedule of 

Civil Penalties 

FRA is amending appendix C of this 

part to establish guideline penalties for 

subpart C. Appendix C specifies the 

civil penalty FRA will ordinarily assess 

for the violation of a particular 

provision of this rule. However, 

consistent with 49 CFR part 209, 

appendix A, FRA’s Statement of Agency 

Policy Concerning Enforcement of the 

Federal Railroad Safety Laws, FRA 

reserves the right to assess a penalty up 

to the statutory maximum where 

circumstances warrant. Further, a 

penalty may be assessed against an 

individual only for a willful violation. 

FRA did not solicit public comment on 

this appendix as it is a statement of 

agency policy. 

IV. Regulatory Impact 

A. Executive Order 12866 and DOT 

Regulatory Policies and Procedures 

This rule is a significant regulatory 

action within the meaning of Executive 

Order 12866 and the U.S. Department of 

Transportation’s regulatory policies and 

procedures (DOT Order 2100.5 dated 

May 22, 1980; 44 FR 11034, Feb. 26, 

1979). FRA has made this determination 

by finding that, although the economic 

effects of the regulatory action will not 

exceed the $100 million annual 

threshold as defined in Executive Order 

12866, the rule is significant because of 

substantial public interest in 

transportation safety and because it is 

part of a broader programmatic effort to 

address distracted transportation 

operations. FRA has prepared and 

placed in the docket a regulatory impact 

analysis (RIA) addressing the economic 

impact of restrictions on traincrew use 

of electronic devices as well as the costs 

of this final rule. 

The RIA details estimates of the costs 

likely to be induced over a twenty year 

period. This analysis also includes 

break-even analyses, or estimates of the 

monetized benefits that will be 

necessary to achieve to offset the total 

costs of restricting use of electronic 

devices. Informed by its analysis of the 

economic effects of both EO 26 and this 

rule, FRA believes that this rule will 

achieve the same safety outcome as EO 

26 at a lower cost. This rule achieves 

this outcome more cost-effectively 

relative to EO 26 by removing some 

restrictions on the usage of electronic 

devices by deadhead status employees 

and on the usage of calculators and 

cameras, under certain circumstances. 

These restrictions in EO 26 likely 

achieved little to no safety benefits, but 

they may have created substantial, 

unquantifiable opportunity costs, the 

removal of which makes this rule more 

cost-effective. The costs that may be 

induced by this rule over the twentyyear period considered include both 

direct costs and indirect costs. The 

direct costs may include the cost of 

revising operational testing and 

inspections programs; the cost of 

conducting additional operational 

testing and inspections; the cost of 

instructing employees on the 

requirements of this rule; and the cost 

of calculators and cameras for train crew 

use. Indirect costs may include the 


emcdonald on DSK2BSOYB1PROD with RULES2
Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59597 

13Federal Railroad Administration. (2010). 

‘‘Notice of Proposed Rulemaking: Restrictions on 

Railroad Operating Employees’ Use of Cellular 

Telephones and Other Electronic Devices.’’ Federal 

Register, May 18, Vol. 75, No. 95. Available online: 

http://www.regulations.gov/search/Regs/ 

home.html#documentDetail?R=0900006480aef96d. 

14 Ibid., p. 27688. 

opportunity cost of railroad operating 

employees’ time spent in safety 

briefings. The summed total of the 

estimated direct costs over twenty years 

equals about $12.7 million at a 3 percent 

discount rate and about $9.5 million at 

a 7 percent discount rate (in 2009 

dollars). Additionally, the indirect costs 

that may result are estimated to equal 

about $30.2 million at a 3 percent 

discount rate and $22.4 million at a 7 

percent discount rate. The majority of 

the costs associated with 

implementation of the restrictions are 

for costs that are already being incurred 

through the implementation of EO 26. 

The table below summarizes both the 

direct and indirect costs of the 

restrictions as considered in the RIA, 

summed over the twenty-year period 

analyzed and discounted to present 

value using 3 percent and 7 percent 

discount rates. 

Twenty-year total 

(3% discount rate) 

Twenty-year total 

(7% discount rate) 

Direct costs: 

Revising programs * .................................................................................................................. $8,348.02 $6,175.35 

Revising programs for rule ....................................................................................................... 39,659.62 39.659.62 

Performing operational tests .................................................................................................... 633,087.44 468,318.78 

Instruction * ............................................................................................................................... 11,339,537.79 8,388,404.44 

Instruction on rule ..................................................................................................................... 246,610.00 246,610.00 

Cameras (potential) .................................................................................................................. 334,951.39 252,434.85 

Calculators (potential) ............................................................................................................... 75,080.95 74,083.90 

Total direct costs ............................................................................................................... 12,677,415.21 9,475,686.94 

Indirect Costs: 

Opportunity cost of additional time spent in safety briefings * ................................................. 30,238,989.11 22,368,926.84 

Total indirect costs ............................................................................................................ 30,238,989.11 22,368,926.84 

* Costs already being incurred under EO 26. 

FRA also modified some provisions of 

the Notice of Proposed Rulemaking 

(NPRM) in this final rule. Two of these 

modifications were to remove 

potentially costly provisions that were 

very unlikely to yield net benefits. The 

first of these modifications was with 

respect to a proposal in the NPRM, at 

§ 220.307(c), which had allowed a 

limited set of railroad-supplied 

electronic devices to be used by railroad 

operating employees not in deadhead 

status, other than locomotive engineers, 

under certain circumstances and only 

following a crew safety briefing and 

unanimous agreement amongst the crew 

that such use would be safe.13

Specifically, in the NPRM, § 220.307(c) 

had limited the railroad-supplied 

electronic devices that could be used in 

certain circumstances to ‘‘a mobile 

phone or remote computing device.’’ 14

This limitation could have inadvertently 

stifled the development or adoption of 

new technologies that could be used by 

railroads to enhance productivity, 

safety, or for some other purpose. To 

avoid this unintended cost of 

potentially hindering the growth or 

adoption of technology, FRA removed 

the limitation, instead adopting 

language that will allow the use of any 

railroad-supplied electronic device 

under prescribed circumstances and 

following a safety briefing and 

unanimous agreement amongst 

crewmembers that it is safe to use the 

device. 

The second modification was with 

respect to § 220.307(d)(2) in the NPRM, 

which had required that, among other 

conditions, operations be suspended 

when a crewmember not in deadhead 

status outside a cab of a controlling 

locomotive used a railroad-supplied 

electronic device. The requirement that 

operations be suspended could have 

inadvertently prevented the 

development or adoption of 

technologies that potentially enhance 

productivity or safety while performing 

operations. For example, if some 

operations are currently performed 

using printed or handwritten 

instructions, FRA recognizes that such 

instructions could just as easily be 

followed on an electronic device—a 

device that might also allow the 

automatic updating of data or 

instructions and through such updating 

increase safety for crewmembers. Thus, 

in the final rule, FRA removed the 

requirement that all operations be 

suspended before a crewmember uses a 

railroad-supplied electronic device 

outside the cab of a controlling 

locomotive, while still requiring that the 

crewmember not be fouling a track and 

that all crewmembers agree that it is safe 

to use the device prior to its use. 

Both of the modifications discussed 

above removed a potentially costly 

provision of the NPRM. However, no 

change in expected costs, vis-a`-vis the 

preliminary RIA, is reflected in this 

final RIA because the preliminary RIA 

accompanying the NPRM had not 

accounted for these potential costs. FRA 

had not intended to create such burden. 

Although FRA has not estimated the 

total benefits associated with the 

restrictions on use of electronic devices, 

FRA has performed break-even analyses 

using differing assumptions regarding 

the frequency and severity of future 

accidents caused by or linked to 

electronic device usage. In most 

scenarios considered, it will not require 

an unreasonable decrease in the annual 

probability of such an accident in order 

for this rule to at least break even—in 

fact, for most cases considered, 

decreases in relevant accident 

probability of less than 0.10 would 

make the rule cost-beneficial. As an 

alternative framework, FRA compared 

the costs to the minimum number of 

statistical fatalities that will need to be 

prevented for implementation to be 

cost-beneficial. Considering direct costs 

alone, if the new regulation prevented 

the loss of one-fifth of the value of a 

statistical life each year of the twentyyear period examined, the restrictions 

will yield positive net benefits. If 

considering direct and indirect costs, 

the restrictions will yield positive net 

benefits if it prevents the loss of just half 

of the value of a statistical life each year 

over the twenty-year period examined. 

In other words, prevention of one 

fatality every two years will justify the 

restrictions. For some perspective on the 

achievability of such prevention, FRA 

notes that over the period from 2000 to 


emcdonald on DSK2BSOYB1PROD with RULES2
59598 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

15 ‘‘Table of Size Standards,’’ U.S. Small Business 

Administration, January 31, 1996, 13 CFR Part 121. 

See also NAICS Codes 482111 and 482112. 

16See 68 FR 24891 (May 9, 2003). 

17For further information on the calculation of 

the specific dollar limit, please see 49 CFR Part 

1201. 

2008, electronic device usage by train 

operating employees likely caused or 

contributed to accidents resulting in 

approximately 30 fatalities and over 100 

injuries—an average of over three deaths 

per year, as well as significant train 

delay and property damages. The table 

below lists the quantifiable benefits 

considered in the RIA. 

Benefit 

Fatalities avoided 

Injuries avoided 

Property damage avoided 

Given the frequency and severity of 

accidents together with the observed 

rising incidence of improper uses of cell 

phones and other electronic devices, 

FRA is confident that the elimination of 

improper electronic device usage by 

railroad operating employees, as 

required by this rule, will yield total 

monetizable safety benefits that will 

likely outweigh total monetized costs. 

Relative to the requirements of EO 26, 

the only additional burdens produced 

by the requirements of this rule are 

those related to revising programs and 

initial instruction focused on the 

exceptions that this rule will introduce; 

the potential cost associated with 

purchasing cameras and calculators or 

carrying ones previously purchased and 

available for use should the need arise, 

which were banned under EO 26, but 

are permitted under this rule; and 

nominal costs associated with seeking 

FRA approval for use of railroadsupplied electronic devices for taking 

photographs and videos. 

This added burden, estimated over a 

20-year period, could total as much as 

$696,000, discounted at an annual rate 

of 3%, or $613,000, discounted at a rate 

of 7% and is broken down as follows. 

PV (3%) PV (7%) 

Program revision .. $39,660 $39,660 

Initial instruction .... 246,610 246,610 

Potential cost of 

cameras ............ 334,951 252,435 

Potential cost of 

calculators ......... 75,081 74,084 

Total ............... 696,302 612,789 

Clearly, the benefits associated with a 

more cost effective program will justify 

the additional costs associated with the 

program revisions and initial training 

focused on the exceptions introduced by 

the rule. The benefits associated with 

the allowance for use of cameras and 

calculators will equal or exceed the 

costs associated with carrying and using 

these devices in accordance with this 

regulation. Given that this is not a 

mandatory requirement, but rather a 

permissive one, cameras and calculators 

will only be used to the extent that 

perceived benefits exceed perceived 

costs. The benefits of seeking FRA 

approval for use of railroad-supplied 

electronic devices for taking 

photographs and videos will be the 

avoidance of unwarranted use of such 

devices, which would equal or exceed 

the nominal costs associated with 

meeting this requirement. 

B. Regulatory Flexibility Act and 

Executive Order 13272 

To ensure potential impacts of rules 

on small entities are properly 

considered, FRA developed this rule in 

accordance with Executive Order 13272 

(‘‘Proper Consideration of Small Entities 

in Agency Rulemaking’’) and DOT’s 

procedures and policies to promote 

compliance with the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.). 

The Regulatory Flexibility Act 

requires agencies to review regulations 

to assess their impact on small entities. 

An agency must conduct a regulatory 

flexibility analysis unless it determines 

and certifies that a rule is not expected 

to have a significant impact on a 

substantial number of small entities. 

As discussed in earlier sections of this 

preamble, FRA has discovered 

numerous examples proving the danger 

of distracting electronic devices. This 

rulemaking is intended to limit 

distractions caused by the use of 

cellular telephones and other electronic 

devices in an effort to improve railroad 

safety and prevent incidents where loss 

of human life, injuries, and property 

damage may have been attributable to 

distraction by these devices. In 2008, 

FRA issued Emergency Order No. 26 

restricting the on-duty use of cellular 

telephones and other electronic devices. 

This FRA action was in part a response 

to the September 12, 2008, Chatsworth 

accident, which resulted in 25 deaths, 

numerous injuries, and more than $7 

million in damages. The BLET and the 

UTU filed a Petition for Review of that 

Emergency Order, citing some valid 

concerns. FRA then issued an NPRM on 

May 18, 2010, in which FRA proposed 

to codify most of the requirements of the 

Order with some modifications to 

accommodate changes that had been 

previously recommended by a Petition 

for Review of that Order as well as a 

number of amendments that FRA 

believed appropriate. FRA reviewed and 

responded to comments on its NPRM in 

this preamble. With this rule, which is 

slightly different from the NPRM 

version, as discussed above, FRA is 

finalizing the codification of its 

restrictions on the unsafe usage of 

electronic devices by railroad operating 

employees. 

FRA is certifying that this rule will 

result in ‘‘no significant economic 

impact on a substantial number of small 

entities.’’ The following section explains 

the reasons for this certification. 

1. Description of Regulated Entities and 

Impacts 

The ‘‘universe’’ of the entities under 

consideration includes only those small 

entities that can reasonably be expected 

to be directly affected by the provisions 

of this rule. In this case, the ‘‘universe’’ 

comprises solely small railroads. 

‘‘Small entity’’ is defined in 5 U.S.C. 

601. Section 601(3) defines a ‘‘small 

entity’’ as having the same meaning as 

‘‘small business concern’’ under section 

3 of the Small Business Act. This 

includes any small business concern 

that is independently owned and 

operated, and is not dominant in its 

field of operation. Section 601(4) 

likewise includes within the definition 

of ‘‘small entities’’ not-for-profit 

enterprises that are independently 

owned and operated, and are not 

dominant in their fields of operation. 

Additionally, § 601(5) defines as ‘‘small 

entities’’ governments of cities, counties, 

towns, townships, villages, school 

districts, or special districts with 

populations less than 50,000. 

The U.S. Small Business 

Administration (SBA) stipulates ‘‘size 

standards’’ for small entities. It provides 

that the largest a for-profit railroad 

business firm may be and still classify 

as a ‘‘small entity’’ is 1,500 employees 

for ‘‘Line-Haul Operating’’ railroads, and 

500 employees for ‘‘Short-Line 

Operating’’ railroads.15

Federal agencies may adopt their own 

size standards for small entities in 

consultation with SBA and in 

conjunction with public comment. 

Pursuant to the authority provided to it 

by SBA, FRA has published a final 

policy that formally establishes small 

entities as railroads that meet the line 

haulage revenue requirements of a Class 

III railroad.16 Currently, the revenue 

requirement is $20 million or less in 

annual operating revenue, adjusted 

annually for inflation ($32,113,449 for 

2008). This threshold is based on the 

Surface Transportation Board’s (STB) 

threshold of a Class III railroad carrier, 

which is adjusted by applying the 

railroad revenue deflator adjustment.17


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59599 

FRA is using the STB’s threshold in its 

definition of ‘‘small entities’’ for this 

rule. 

Approximately 700 railroads meet the 

criteria for small entities and report 

operational data to FRA. FRA is using 

this as our estimate of the universe of 

small entities that could be directly 

impacted by this rule. Many of these 

railroads rely on cell phones for train 

operations. 

Like EO 26, this rule contains 

exceptions that would allow railroads 

that have fewer than 400,000 annual 

employee hours and that rely on 

wireless communication devices for 

certain train operations to continue to 

do so, with the same restriction that 

such usage be limited to performing the 

employees’ railroad duties. The primary 

benefactors of this flexibility are small 

railroads. FRA is clarifying that the 

exception in the Order for railroad 

operating employees to use railroadsupplied or railroad-authorized 

electronic devices to conduct train or 

switching operations ‘‘under conditions 

authorized under 49 CFR Part 220’’ was 

intended to accommodate small railroad 

operations. The locomotives of the 

trains exempt from the requirement to 

have a working radio on the lead 

locomotive do not operate at high 

speeds, do not handle regular passenger 

traffic, are only permitted to operate 

over joint territory in specific low-speed 

circumstances, and must have working 

wireless communications aboard the 

controlling locomotive of trains 

containing placarded hazardous 

material loads. 

This rule contains additional 

flexibility that would reduce the impact 

relative to EO 26. With this rule, FRA 

will: (1) Allow deadheading railroad 

operating employees who are not in the 

cab of a controlling locomotive to use 

electronic devices if that use does not 

interfere with an employee’s personal 

safety or performance of safety-related 

duties; (2) allow use of cameras to 

document safety hazards or violations, 

except in the cab of the controlling 

locomotive of a moving train; and (3) 

exclude standalone calculators from all 

restrictions within this subpart as long 

as the calculator is used for an 

authorized business purpose and does 

not interfere with the performance of 

any employee’s safety-related duties. In 

addition, FRA is creating an exception 

for medical devices to encompass both 

devices that enhance an ability to 

perform safety-related tasks, such as a 

hearing aid, and other devices that 

protect an employee’s health and wellbeing. 

In general, small railroad costs 

associated with compliance with EO 26 

would continue to accrue under FRA’s 

rule. Additional burden to such 

railroads would come from the 

requirement to provide instruction to its 

operating employees on the substance of 

the regulation as well as the need to 

update their written programs to qualify 

its operating employees for compliance 

with operating rules implementing the 

new requirements. FRA anticipates that 

this instruction will be achieved 

through means such as distribution of 

written materials to employees, job 

briefings by supervisors or roving 

instructors, and question-and-answer 

services. FRA estimates that the time 

cost of such instruction will come to 

about 15 minutes per employee in the 

first year of the rule. Approximately 

91,000 train and engine employees will 

be impacted, and about 20 percent of 

these will be small railroad employees. 

Assuming a cost per hour of employee 

instructed of $43.37, the total cost of 

this additional instruction will be 

approximately $200,000 for small 

railroads or an average of $300 per 

railroad. Revision of programs is not 

expected to entail more than 1 labor 

hour per railroad. These two costs—that 

of additional instruction and that of 

revising programs—will likely not 

significantly burden any small railroads. 

Additional railroad costs transferred 

from EO 26 include the costs associated 

with performing operational tests and 

conducting periodic instruction. Given 

that operational tests and instruction 

associated with this regulation will be 

conducted with other required 

operational testing and instruction, the 

additional annual cost will total about 

as much as the cost in the first year for 

instruction and program revision. 

Again, this cost will likely not 

significantly burden small railroads. 

Because this rule will apply to all 

small railroads, FRA has concluded that 

a substantial number of small entities 

will be impacted. However, the overall 

impact on small railroads is not 

expected to be significant. FRA believes 

that the costs to small railroads 

associated with this rule are not 

significant and are very similar to those 

currently incurred under EO 26. 

In the NPRM, FRA certified that the 

proposal would likely not result in a 

significant economic impact on a 

substantial number of small entities and 

requested comments on all aspects of its 

supporting analysis. No comments were 

received. 

2. Certification 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), the FRA Administrator certifies 

that this rule will not have a significant 

economic impact on a substantial 

number of small entities. Although a 

substantial number of small railroads 

could be affected by the rule, they will 

not be significantly impacted. 

C. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995, 

44 U.S.C. 3501 et seq. The sections that 

contain the new and current 

information collection requirements, 

and the estimated time to fulfill each 

requirement are as follows: 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

220.8—Waivers .............................................. 728 Railroads ............. 6 petitions .................. 1 hour ......................... 6 hours. 

220.25—Instruction in Proper Use of Radio 

Communication.

728 Railroads ............. 91,000 trained Employees.30 minutes ................. 45,500 hours. 

—Subsequent Years ............................... 728 Railroads ............. 12,540 trained Employees.30 minutes ................. 6,270 hours. 

—Operational Testing of Employees ...... 728 Railroads ............. 100,000 tests ............. 5 minutes ................... 8,333 hours. 

220.37—Testing of Radios and Wireless Devices.728 Railroads ............. 780,000 tests ............. 30 seconds ................ 6,500 hours. 

220.61—Transmission of Mandatory Directives 

—Copying of Mandatory Directives ........ 728 Railroads ............. 7,200,000 copies ....... 1.5 minutes ................ 180,000 hours. 

—Marking Mandatory Directives ............. 728 Railroads ............. 624,000 marks ........... 15 seconds ................ 2,600 hours. 


emcdonald on DSK2BSOYB1PROD with RULES2
59600 Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 

CFR Section Respondent universe Total annual 

responses 

Average time per 

response 

Total annual burden 

hours 

New Requirements 

220.302—Operational Rules That Comply 

with this Subpart.

728 Railroads ............. Burden Incl. Under 

OMB No. 2130– 

0035.

Burden Incl. Under 

OMB No. 2130– 

0035.

Burden Incl. Under 

OMB No. 2130– 

0035. 

—Revision of RR Operational Rules in 

Part 217 to Comply with this Supart.

220.307—Use of Railroad-Supplied Electronic Device As Specified in Writing.728 Railroads ............. 728 amended RR Op. 

codes, 50 documents.

1 hour ......................... 728 hours. 

—Written documents submitted to FRA 

specifying authorized business purpose for taking photo/video w/railroadsupplied electronic device.

728 Railroads ............. 1 hour ......................... 50 hours. 

—Engineer and Train Crew Briefings to 

Use RR–Supplied Electronic Device 

Inside/Outside of Locomotive Cab.

91,000 hours .............. 5,460,000 briefings .... 1 minute ..................... 91,000 hours. 

220.313—Instruction Railroad Written Program of Instruction.728 Railroads ............. 728 amended programs.1 hour ......................... 728 hours. 

—Implementation: Training of Employees.91,000 Employees ..... 91,000 trained Employees.15 minutes ................. 22,750 hours. 

—Records: Successful Completion of 

Training.

728 Railroads ............. 91,000 records ........... 5 minutes ................... 7,583 hours. 

Approval Process: Disapproval of RR 

Written Program of Instruction or Written Response in Support of Program.

728 Railroads ............. 6 revised programs/ 

written resp.

60 minutes ................. 6 hours. 

220.315—Operational Tests/Inspections ....... 728 Railroads ............. Burden Incl. Under 

OMB #2130–0579.

Burden Incl. Under 

OMB #2130–0579.

Burden Incl. Under 

OMB #2130–0579. 

—Revision of RR Program of Operational Tests and Inspections under 

Part 217 to Include This Subpart.

All estimates include the time for 

reviewing instructions; searching 

existing data sources; gathering or 

maintaining the needed data; and 

reviewing the information. For 

information or a copy of the paperwork 

package submitted to OMB, contact 

Robert Brogan at 202–493–6292 or Ms. 

Kimberly Toone at 202–493–6132 or via 

e-mail at the following addresses: 

robert.brogan@dot.gov; 

kimberly.toone@dot.gov. 

Organizations and individuals 

desiring to submit comments on the 

collection of information requirements 

should direct them to the Office of 

Management and Budget, 725 17th St., 

NW., Washington, DC 20590; Attention: 

FRA OMB Desk Officer. Comments may 

also be sent via e-mail to the Office of 

Management and Budget at the 

following address: 

oira_submissions@omb.eop.gov. 

OMB is required to make a decision 

concerning the collection of information 

requirements contained in this final rule 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

to OMB is best assured of having its full 

effect if OMB receives it within 30 days 

of publication. 

FRA is not authorized to impose a 

penalty on persons for violating 

information collection requirements 

which do not display a current OMB 

control number, if required. FRA 

intends to obtain current OMB control 

numbers for any new information 

collection requirements resulting from 

this rulemaking action prior to the 

effective date of the final rule. The OMB 

control number, when assigned, will be 

announced by separate notice in the 

Federal Register. 

D. Environmental Impact 

FRA has evaluated this final rule in 

accordance with its ‘‘Procedures for 

Considering Environmental Impacts’’ 

(FRA’s Procedures) (64 FR 28545, May 

26, 1999) as required by the National 

Environmental Policy Act (42 U.S.C. 

4321 et seq.), other environmental 

statutes, Executive Orders, and related 

regulatory requirements. FRA has 

determined that this action is not a 

major FRA action (requiring the 

preparation of an environmental impact 

statement or environmental assessment) 

because it is categorically excluded from 

detailed environmental review pursuant 

to section 4(c)(20) of FRA’s Procedures. 

64 FR 28547, May 26, 1999. In 

accordance with section 4(c) and (e) of 

FRA’s Procedures, the agency has 

further concluded that no extraordinary 

circumstances exist with respect to this 

final rule that triggered the need for a 

more detailed environmental review. As 

a result, FRA finds that this final rule is 

not a major Federal action significantly 

affecting the quality of the human 

environment. 

E. Federalism Implications 

Executive Order 13132, ‘‘Federalism’’ 

(64 FR 43255, Aug. 10, 1999), requires 

FRA to develop an accountable process 

to ensure ‘‘meaningful and timely input 

by State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’ Under Executive 

Order 13132, the agency may not issue 

a regulation with federalism 

implications that imposes substantial 

direct compliance costs and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by State and local 

governments, the agency consults with 

State and local governments, or the 

agency consults with State and local 

government officials early in the process 

of developing the regulation. Where a 


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Federal Register / Vol. 75, No. 186 / Monday, September 27, 2010 / Rules and Regulations 59601 

regulation has federalism implications 

and preempts State law, the agency 

seeks to consult with State and local 

officials in the process of developing the 

regulation. 

This final rule has been analyzed in 

accordance with the principles and 

criteria contained in Executive Order 

13132. FRA has determined that the 

final rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, nor on the 

distribution of power and 

responsibilities among the various 

levels of government. In addition, FRA 

has determined that the final rule will 

not impose substantial direct 

compliance costs on State and local 

governments. Therefore, the 

consultation and funding requirements 

of Executive Order 13132 do not apply. 

However, this final rule could have 

preemptive effect by operation of law 

under certain provisions of the Federal 

railroad safety statutes, specifically the 

former Federal Railroad Safety Act of 

1970 (former FRSA), repealed and 

recodified at 49 U.S.C 20106, and the 

former Locomotive-Boiler Inspection 

Act (former LBIA), repealed and 

recodified at 49 U.S.C. 20701–20703. 

See Pub. L. 103–272. The former FRSA 

provides that States may not adopt or 

continue in effect any law, regulation, or 

order related to railroad safety or 

security that covers the subject matter of 

a regulation prescribed or order issued 

by the Secretary of Transportation (with 

respect to railroad safety matters) or the 

Secretary of Homeland Security (with 

respect to railroad security matters), 

except when the State law, regulation, 

or order qualifies under the ‘‘local safety 

or security hazard’’ exception to § 20106. 

Moreover, the former LBIA has been 

interpreted by the Supreme Court as 

preempting the entire field of 

locomotive safety. See Napier v. 

Atlantic Coast R.R., 272 U.S. 605, 611; 

47 S.Ct. 207, 209 (1926). 

In sum, FRA has analyzed this final 

rule in accordance with the principles 

and criteria contained in Executive 

Order 13132. As explained above, FRA 

has determined that this final rule has 

no federalism implications, other than 

the possible preemption of State laws 

under the former FRSA and the former 

LBIA. Accordingly, FRA has determined 

that preparation of a federalism 

summary impact statement for this final 

rule is not required. 

F. Unfunded Mandates Reform Act of 

1995 

Pursuant to Section 201 of the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4, 2 U.S.C. 1531), each 

Federal agency ‘‘shall, unless otherwise 

prohibited by law, assess the effects of 

Federal regulatory actions on State, 

local, and tribal governments, and the 

private sector (other than to the extent 

that such regulations incorporate 

requirements specifically set forth in 

law).’’ Section 202 of the Act (2 U.S.C. 

1532) further requires that ‘‘before 

promulgating any general notice of 

proposed rulemaking that is likely to 

result in the promulgation of any rule 

that includes any Federal mandate that 

may result in the expenditure by State, 

local, and tribal governments, in the 

aggregate, or by the private sector, of 

$140,800,000 or more in any 1 year, and 

before promulgating any final rule for 

which a general notice of proposed 

rulemaking was published, the agency 

shall prepare a written statement’’ 

detailing the effect on State, local, and 

tribal governments and the private 

sector. This final rule will not result in 

the expenditure, in the aggregate, of 

$140,800,000 or more in any one year, 

and thus preparation of such a 

statement is not required. 

G. Energy Impact 

Executive Order 13211 requires 

Federal agencies to prepare a Statement 

of Energy Effects for any ‘‘significant 

energy action.’’ See 66 FR 28355 (May 

22, 2001). Under the Executive Order a 

‘‘significant energy action’’ is defined as 

any action by an agency that 

promulgates or is expected to lead to the 

promulgation of a final rule or 

regulation, including notices of inquiry, 

advance notices of proposed 

rulemaking, and notices of proposed 

rulemaking: (1)(i) That is a significant 

regulatory action under Executive Order 

12866 or any successor order, and (ii) is 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy; or (2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

significant energy action. FRA has 

evaluated this final rule in accordance 

with Executive Order 13211. FRA has 

determined that this final rule is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. Consequently, FRA has 

determined that this final rule is not a 

‘‘significant energy action’’ within the 

meaning of the Executive Order. 

H. Privacy Act Statement 

Anyone is able to search the 

electronic form of all comments 

received into any of DOT’s dockets by 

the name of the individual submitting 

the comment (or signing the comment, 

if submitted on behalf of an association, 

business, labor union, etc). You may 

review DOT’s complete Privacy Act 

Statement published in the Federal 

Register on April 11, 2000 (65 FR 

19477–78), or you may visit http:// 

DocketsInfo.dot.gov. 

I. Executive Order 12988 (Civil Justice 

Reform) 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

List of Subjects in 49 CFR Part 220 

Communications, Penalties, 

Railroads, Railroad safety. 

The Rule 

■ In consideration of the foregoing, FRA 

amends chapter II, subtitle B of title 49, 

Code of Federal Regulations, as follows: 

PART 220—[AMENDED] 

■ 1. The authority citation for Part 220 

is revised to read as follows: 

Authority: 49 U.S.C. 20102–20103, 20103, 

note, 20107, 21301–21302, 20701–20703, 

21304, 21311; 28 U.S.C. 2461, note; and 49 

CFR 1.49. 

■ 2. Section 220.1 is revised to read as 

follows: 

§ 220.1 Scope. 

This part prescribes minimum 

requirements governing the use of 

wireless communications in connection 

with railroad operations. In addition, 

this part sets forth prohibitions, 

restrictions, and requirements that 

apply to the use of personal and 

railroad-supplied cellular telephones 

and other electronic devices. So long as 

these minimum requirements are met, 

railroads may adopt additional or more 

stringent requirements. 

§ 220.2 [Removed and Reserved] 

■ 3. Section 220.2 is removed and 

reserved. 

■ 4. Section 220.5 is amended by 

revising the introductory text; adding 

definitions in alphabetical order for 

‘‘Associate Administrator for Railroad 

Safety/Chief Safety Officer,’’ 

‘‘Authorized business purpose,’’ 

‘‘Earpiece,’’ ‘‘Electronic device,’’ ‘‘Fouling 

a track,’’ ‘‘FRA,’’ ‘‘In deadhead status,’’ 

‘‘Medical device,’’ ‘‘Personal electronic 

device,’’ ‘‘Railroad operating employee,’’ 

‘‘Railroad-supplied electronic device,’’ 

and ‘‘Switching operation’’; and revising 

the definition of ‘‘Train’’ to read as 

follows: 

§ 220.5 Definitions. 

As used in this part, the term— 

* * * * * 


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Associate Administrator for Railroad 

Safety/Chief Safety Officer means either 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer, Federal 

Railroad Administration, 1200 New 

Jersey Ave., SE., Washington, DC 20590 

or that person’s delegate. 

Authorized business purpose means a 

purpose directly related to the tasks that 

a crewmember is expected to perform 

during the current tour of duty as 

specified by the railroad in writing. 

* * * * * 

Earpiece means a small speaker that is 

inserted in, or held next to, the ear for 

use in transmitting sounds related to an 

electronic device. 

Electronic device means an electronic 

or electrical device used to conduct oral, 

written, or visual communication; place 

or receive a telephone call; send or read 

an electronic mail message or text 

message; look at pictures; read a book or 

other written material; play a game; 

navigate the Internet; navigate the 

physical world; play, view, or listen to 

a video; play, view, or listen to a 

television broadcast; play or listen to a 

radio broadcast other than a radio 

broadcast by a railroad; play or listen to 

music; execute a computational 

function; or, perform any other function 

that is not necessary for the health or 

safety of the person and that entails the 

risk of distracting the employee or 

another railroad operating employee 

from a safety-related task. This term 

does not include— 

(1) Electronic control systems and 

information displays within the 

locomotive cab (whether the displays or 

systems be fixed or portable) or on a 

remote control transmitter necessary to 

operate a train or conduct switching 

operations; or 

(2) A digital watch whose only 

purpose is as a timepiece. 

* * * * * 

Fouling a track means the placement 

of an individual in such proximity to a 

track that the individual could be struck 

by a moving train or other on-track 

equipment, or in any case is within four 

feet of the nearest rail. 

FRA means the Federal Railroad 

Administration. 

* * * * * 

In deadhead status means awaiting or 

in deadhead transport from one point to 

another as a result of a railroad-issued 

verbal or written directive. 

* * * * * 

Medical device means an instrument, 

apparatus, implement, machine, 

contrivance, implant, or other similar or 

related article (including a component 

part), or accessory that is intended for 

use in the diagnosis of disease or other 

conditions, or in the cure, mitigation, 

treatment, or prevention of disease or 

other conditions. 

Personal electronic device means an 

electronic device that was not provided 

to the railroad operating employee by 

the employing railroad for a business 

purpose. 

Railroad operating employee means a 

person performing duties subject to— 

(1) An individual engaged in or 

connected with the movement of a train, 

including a hostler, as defined in 49 

U.S.C. 21101(5), who is subject to 49 

U.S.C. 21103 effective July 16, 2009; 

(2) A train employee providing 

commuter rail passenger transportation 

or intercity rail passenger transportation 

as defined in 49 U.S.C. 24102 who, 

pursuant to 49 U.S.C. 21102(c), is 

subject to 49 U.S.C. 21103 as it was in 

effect on October 15, 2008; or 

(3) An individual subject to any 

Federal Railroad Administration 

regulations prescribed pursuant to 49 

U.S.C. 21109 governing the hours of 

service of train employees. 

* * * * * 

Railroad-supplied electronic device 

means an electronic device provided to 

a railroad operating employee by the 

employing railroad for an authorized 

business purpose. A railroad-supplied 

device will be considered a personal 

electronic device when it is being used 

by the employee for a purpose other 

than an authorized business purpose. 

* * * * * 

Switching operation means the 

classification of rail cars according to 

commodity or destination; assembling 

of cars for train movements; changing 

the position of cars for purposes of 

loading, unloading, or weighing; placing 

of locomotives and cars for repair or 

storage; or moving of rail equipment in 

connection with work service that does 

not constitute a train movement. 

* * * * * 

Train, for purposes of subparts A and 

B of this part, means one or more 

locomotives coupled with or without 

cars, requiring an air brake test in 

accordance with 49 CFR part 232 or part 

238, except during switching operations 

or where the operation is that of 

classifying and assembling rail cars 

within a railroad yard for the purpose of 

making or breaking up trains. The term, 

for purposes of subpart C of this part, 

means— 

(1) A single locomotive, 

(2) Multiple locomotives coupled 

together, or 

(3) One or more locomotives coupled 

with one or more cars. 

* * * * * 

■ 5. Add a new subpart C to part 220 to 

read as follows: 

Subpart C—Electronic Devices 

Sec. 

§ 220.301 Purpose and application. 

§ 220.302 Operating rules implementing 

the requirements of this subpart. 

§ 220.303 General use of electronic devices. 

§ 220.305 Use of personal electronic 

devices. 

§ 220.307 Use of railroad-supplied 

electronic devices. 

§ 220.309 Permitted uses; exceptions to 

other restrictions. 

§ 220.311 Railroad operating employees in 

deadhead status. 

§ 220.313 Instruction. 

§ 220.315 Operational tests and 

inspections; further restrictions on use of 

electronic devices. 

Subpart C—Electronic Devices 

§ 220.301 Purpose and application. 

(a) The purpose of this subpart is to 

reduce safety risks resulting from 

railroad operating employees being 

distracted by the inappropriate use of 

electronic devices, such as mobile 

telephones (cell phones or cellular 

phones) and laptop computers. 

(b) The applicability of this subpart is 

governed by § 220.3; this subpart, 

however, does not affect the use of 

working wireless communications 

pursuant to subparts A and B of this 

part. 

(c) The restrictions of this subpart C 

do not apply— 

(1) To the working radio; or 

(2) When a working radio failure 

occurs and an electronic device is used 

in accordance with railroad rules. 

§ 220.302 Operating rules implementing 

the requirements of this subpart. 

Each railroad shall adopt operating 

rules that implement the requirements 

of this subpart. 

§ 220.303 General use of electronic 

devices. 

A railroad operating employee shall 

not use an electronic device if that use 

would interfere with the employee’s or 

another railroad operating employee’s 

performance of safety-related duties. No 

individual in the cab of a controlling 

locomotive shall use an electronic 

device if that use would interfere with 

a railroad operating employee’s 

performance of safety-related duties. 

§ 220.305 Use of personal electronic 

devices. 

A railroad operating employee must 

have each personal electronic device 

turned off with any earpiece removed 

from the ear— 

(a) When on a moving train; 

(b) When any member of the crew is— 


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(1) On the ground, or 

(2) Riding rolling equipment during a 

switching operation; or 

(c) When any railroad employee is 

assisting in preparation of the train for 

movement. 

§ 220.307 Use of railroad-supplied 

electronic devices. 

(a) General restriction. A railroad 

operating employee may use a railroadsupplied electronic device only for an 

authorized business purpose as 

specified by the railroad in writing. An 

authorized business purpose involving 

the taking of a photograph or video must 

be approved by FRA. A railroad subject 

to this subpart must submit to FRA’s 

Associate Administrator for Railroad 

Safety/Chief Safety Officer a document 

specifying in writing the authorized 

business purpose(s) involving the taking 

of a photograph or video for which a 

railroad-supplied electronic device may 

be used by the carrier’s railroad 

operating employees. 

(b) Use by locomotive engineers 

operating controls. A locomotive 

engineer operating the controls of a train 

shall not use a railroad-supplied 

electronic device— 

(1) When on a moving train; 

(2) When any member of the crew is— 

(i) On the ground, or 

(ii) Riding rolling equipment during a 

switching operation; or 

(3) When any railroad employee is 

assisting in preparation of the train for 

movement. 

(c) Use in freight and passenger 

locomotive cabs generally. In addition to 

the restrictions on locomotive engineers 

described in paragraph (b) of this 

section, a railroad operating employee 

who is not in deadhead status shall not 

use a railroad-supplied electronic 

device in the cab of a controlling 

locomotive unless— 

(1) A safety briefing that includes all 

crewmembers is held; and 

(2) All crewmembers agree that it is 

safe to use the device. 

(d) Use outside freight locomotive 

cabs. A freight train crewmember who 

is not in deadhead status may use a 

railroad-supplied electronic device 

outside the cab of a controlling freight 

locomotive only if all of the following 

conditions are met: 

(1) The crewmember is not fouling a 

track; and 

(2) All crewmembers agree it is safe to 

use the device. 

§ 220.309 Permitted uses; exceptions to 

other restrictions. 

Notwithstanding any other limitations 

in this subpart, a railroad operating 

employee may use the following, if that 

use does not interfere with any 

employee’s performance of safetyrelated duties— 

(a) The digital storage and display 

function of an electronic device to refer 

to a railroad rule, special instruction, 

timetable, or other directive, if such use 

is authorized under a railroad operating 

rule or instruction. 

(b) An electronic device as necessary 

to respond to an emergency situation 

involving the operation of the railroad 

or encountered while performing a duty 

for the railroad. 

(c) An electronic device to take a 

photograph of a safety hazard or a 

violation of a rail safety law, regulation, 

order, or standard, provided that— 

(1) A camera that is part of a cell 

phone or other similar multi-functional 

electronic device is not included in this 

exception unless it is a railroadsupplied device and is used for an 

authorized business purpose; 

(2) The camera, unless otherwise 

permitted, is turned off immediately 

after the documentation has been made; 

and 

(3) If the camera is used in the cab of 

a moving train, the use is only by a 

crewmember other than the locomotive 

engineer. 

(d) A stand-alone calculator if used 

for an authorized business purpose. 

(e) A medical device that is consistent 

with the railroad’s standards for medical 

fitness for duty. 

(f) A wireless communication device 

to conduct train or switching operations 

if the railroad operating employee is 

part of a crew assigned to a train that is 

exempt under § 220.9(b) from the 

requirement of a working radio when 

the employing railroad has fewer than 

400,000 annual employee work hours. 

§ 220.311 Railroad operating employees in 

deadhead status. 

(a) Notwithstanding any other 

restrictions in this subpart, a railroad 

operating employee who is in deadhead 

status and not inside the cab of a 

controlling locomotive may use an 

electronic device only if the employee is 

not using the device in such a way that 

interferes with any railroad operating 

employee’s personal safety or 

performance of safety-related duties. 

(b) A railroad operating employee 

who is in deadhead status and located 

inside the cab of a controlling 

locomotive must have each electronic 

device turned off with any earpiece 

removed from the ear— 

(1) When on a moving train; 

(2) When any member of the crew is— 

(i) On the ground, or 

(ii) Riding rolling equipment during a 

switching operation; or 

(3) When any railroad employee is 

assisting in preparation of the train for 

movement. 

§ 220.313 Instruction. 

(a) Program. Beginning December 27, 

2010, each railroad shall maintain a 

written program of instruction and 

examination of each railroad operating 

employee and each supervisor of the 

railroad operating employee on the 

meaning and application of the 

railroad’s operating rules implementing 

the requirements of this subpart if these 

requirements are pertinent to the 

employee’s duties. If all requirements of 

this subpart are satisfied, a railroad may 

consolidate any portion of the 

instruction or examination required by 

this subpart with the program of 

instruction required under § 217.11 of 

this chapter. 

(1) The written program of instruction 

and examination shall address the 

requirements of this subpart, as well as 

consequences of noncompliance. 

(2) The written program of instruction 

and examination shall include, but is 

not limited to, an explanation of the 

following: 

(i) When a railroad operating 

employee must have personal electronic 

devices turned off with the earpiece 

removed from the ear as required by this 

subpart. 

(ii) If a railroad supplies an electronic 

device to its railroad operating 

employees, when a railroad operating 

employee may use such a device. The 

employee must be instructed on what 

constitutes an authorized business 

purpose. 

(iii) The potential penalties and other 

consequences of committing a violation 

of this subpart, both those imposed by 

the Federal Railroad Administration 

(FRA) and those imposed by the 

railroad, as well as any distinction 

between the requirements of this 

subpart and any more stringent 

requirements imposed by the railroad 

and the related distinction between the 

two sets of potential consequences. 

(b) Implementation schedule. Each 

employee performing duties subject to 

the requirements in this subpart shall be 

initially instructed prior to March 28, 

2011. 

(1) Beginning March 28, 2011, no 

employee shall perform work requiring 

compliance with the operating rules 

implementing the requirements of this 

subpart unless the employee has been 

instructed on requirements of this 

subpart within the previous three years. 

(2) The records of successful 

completion of instruction and 

examination required by this section 


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shall document the instruction of each 

employee under this subpart. 

(c) Records. Written records 

documenting successful completion of 

instruction and examination of each 

employee and of his or her supervisors 

shall be made and shall be retained at 

the railroad’s system headquarters and 

at the division headquarters for each 

division where the employee is assigned 

for three calendar years after the end of 

the calendar year to which they relate 

and made available to representatives of 

FRA for inspection and copying during 

normal business hours. Each railroad to 

which this part applies is authorized to 

retain a program, or any records 

maintained to prove compliance with 

such a program, by electronic 

recordkeeping in accordance with 

§§ 217.9(g) and 217.11(c) of this chapter. 

(d) Approval process. Upon review of 

the program of instruction and 

examination required by this section, 

the Associate Administrator for Railroad 

Safety/Chief Safety Officer may, for 

cause stated, disapprove the program. 

Notification of such disapproval shall be 

made in writing and specify the basis 

for the disapproval. 

(1) If the Associate Administrator for 

Railroad Safety/Chief Safety Officer 

disapproves the program, the railroad 

has 35 days from the date of the written 

notification of such disapproval to— 

(i) Amend its program and submit it 

to the Associate Administrator for 

Railroad Safety/Chief Safety Officer for 

approval; or 

(ii) Provide a written response in 

support of the program to the Associate 

Administrator for Railroad Safety/Chief 

Safety Officer, who informs the railroad 

of FRA’s final decision in writing. 

(2) A failure to submit the program 

with the necessary revisions to the 

Associate Administrator for Railroad 

Safety/Chief Safety Officer in 

accordance with this paragraph is 

considered a failure to implement a 

program under this subpart. 

§ 220.315 Operational tests and 

inspections; further restrictions on use of 

electronic devices. 

(a) The railroad’s program of 

operational tests and inspections under 

part 217 of this chapter shall be revised 

as necessary to include this subpart and 

shall specifically include a minimum 

number of operational tests and 

inspections, subject to adjustment as 

appropriate. 

(b) When conducting a test or 

inspection under part 217 of this 

chapter, a railroad officer, manager, or 

supervisor is prohibited from calling the 

personal electronic device or the 

railroad-supplied electronic device used 

by a railroad operating employee while 

the railroad officer, manager, or 

supervisor knows or should have known 

that— 

(1) The train to which the employee 

is assigned is moving; 

(2) The employee is— 

(i) On the ground; 

(ii) Riding rolling equipment during 

switching operations; or 

(iii) Assisting in preparation of the 

train to which the employee is assigned 

for movement. 

■ 6. Appendix C to part 220 is amended 

by adding footnote 2 to the first column 

heading ‘‘Section,’’ and adding an entry 

for subpart C to read as follows: 

APPENDIX C TO PART 220—SCHEDULE

OF CIVIL PENALTIES 1

Section 2 Violation 

Willful 

violation 

* * * * * 

Subpart C—Electronic 

Devices 

220.302 Operating rules 9,500 17,000 

220.303 General; interfering with safety-related 

duties ............................. 9,500 17,000 

220.305 Personal electronic device turned on 

while prohibited ............. 5,500 10,000 

(a)–(c) Personal device in use while 

prohibited ............... 9,500 17,000 

APPENDIX C TO PART 220—SCHEDULE

OF CIVIL PENALTIES 1—Continued 

Section 2 Violation 

Willful 

violation 

220.307 Railroad-supplied device turned on 

while prohibited ............. 5,500 10,000 

(a) Use not authorized 

by railroad in writing 9,500 17,000 

(b)–(d) Railroad-supplied devices in use 

while prohibited ...... 9,500 17,000 

220.311 Railroad operating employees in 

deadhead status: 

(a) .............................. 9,500 17,000 

(b) Devices turned on 

while prohibited; or 5,500 10,000 

device in use while 

prohibited ............... 9,500 17,000 

220.313 Program of instruction: 

(a)–(d) ........................ 9,500 17,000 

220.315 Operational 

tests and inspections: 

(a)–(b) ........................ 9,500 17,000 

1A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty 

of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, 

appendix A. 2The penalty schedule uses section numbers from 49 CFR part 220. If more than one 

item is listed as a type of violation of a given 

section, each item is also designated by a 

‘‘penalty code,’’ which is used to facilitate assessment of civil penalties, and which may or 

may not correspond to any subsection designation(s). For convenience, penalty citations 

will cite the CFR section and the penalty code, 

if any. FRA reserves the right, should litigation 

become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should 

they differ. 

Issued in Washington, DC, on September 

17, 2010. 

Karen J. Hedlund, 

Chief Counsel, Federal Railroad 

Administration. 

[FR Doc. 2010–23916 Filed 9–21–10; 4:15 pm] 

BILLING CODE 4910–06–P 


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