[Federal Register: May 18, 2010 (Volume 75, Number 95)]
[Proposed Rules]
[Page 27672-27690]
[DOCID:fr18my10-17]

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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: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA is proposing to amend its railroad communications
regulations by restricting use of mobile telephones and

other distracting electronic devices by railroad operating employees.
This proposed rulemaking would codify most of the requirements of FRA
Emergency Order No. 26, which would be supplanted by the final rule.
FRA proposes that some of the substantive requirements of that order as
well as its scope be changed by this rulemaking to accommodate changes
previously recommended by a petition for review of that order and a
number of additional amendments that FRA believes are appropriate. In
addition, FRA is requesting comment regarding whether violations of
this proposed subpart should be a basis for revoking a locomotive
engineer's certification.

DATES: Written comments must be received by June 17, 2010. Comments
received after that date will be considered to the extent possible
without incurring additional delay or expense. FRA anticipates being
able to resolve this rulemaking without a public, oral hearing. However
if FRA receives a specific request for a public, oral hearing prior to
June 17, 2010, one will be scheduled, and FRA will publish a
supplemental notice in the Federal Register to inform interested
parties of the date, time, and location of any such hearing.

ADDRESSES: Comments: Comments related to this Docket No. FRA-2009-0118
may be submitted by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.Regulations.gov. Follow the online instructions for submitting
comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue, SE., Washington,
DC 20590-0001.
     Hand Delivery: Docket Management Facility, U.S. Department
of Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
     Fax: 202-493-225.
    Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Please note that all comments received will be posted
without change to http://www.Regulations.gov, including any personal
information provided. Please see the discussion under the Privacy Act
heading in the Supplementary Information section of this document.
    Docket: For access to the docket to read background documents or
comments received, go to http://www.Regulations.gov at any time or
visit the Docket Management Facility, U.S. Department of
Transportation, West Building, Ground floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC between 9 a.m. and 5 p.m. ET, Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director-
Operating Practices, Office of Railroad Safety, FRA, 1200 New Jersey
Avenue, SE., Washington, DC 20590 (telephone:<PHONE_NUMBER>); Ann M.
Landis, Trial Attorney, Office of the Chief Counsel, FRA, 1200 New
Jersey Avenue, SE., Washington, DC 20950 (telephone:<PHONE_NUMBER>);
or Joseph St. Peter, Trial Attorney, Office of the Chief Counsel, FRA,
1200 New Jersey Avenue, SE., Washington, DC 20950 (telephone: (202)
493-6047).

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Distracted Driving and its Transportation Safety Consequences
    A. Background Information
    B. Justification for the Rulemaking
    C. Distracted Driving Impacts All Transportation Modes
    1. Aviation
    2. Rail
    3. Motorcoach
    D. Legal Basis for the Rulemaking
    E. Studies
    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)
    F. Other Efforts
    1. State Action
    2. Federal Action
II. Summary of Proposed Rule
III. Comments from Interested Parties on Railroad Operating Employee
Use of Electronic Devices
    A. General
    B. Deadheading Employees
    C. Cameras
    D. Calculators
    E. GPS [Global Positioning System] Devices
IV. Other Considerations
    A. Medical Devices
    B. Exception for Working Wireless Communication Devices for
Train Movements
    C. Locomotive Engineer Certification Revocation
V. Enforcement Issues
VI. Section-by-Section Analysis
VII. 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. Distracted Driving and Its Transportation Safety Consequences

A. 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 devices, or some other type of
multitasking. This type of behavior results in vehicle accidents and
significant costs to our nation's economy.
    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.

B. Justification for the Rulemaking

    FRA has discovered numerous examples proving the danger of
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 of 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. 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 Emergency Order No. 26 (Order or EO
26) restricting the on-duty use of cellular telephones and other
electronic devices. 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 December 7, 2009, FRA inspectors discovered approximately
200 instances in which the Order may have been violated. FRA's Office
of Railroad Safety recommended enforcement action against the employee
or railroad in 36 of these instances. All 36 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. Of these 36
instances, approximately half of them involved an employee using or
failing to have a cell phone turned off while in the cab of a
locomotive during a potentially hazardous time. In addition, 33 of the
incidents recommended for enforcement action involved personal, as
opposed to railroad-supplied, devices. The hazard of distracting
electronic devices has been made abundantly and, at times, tragically
clear. FRA inspectors have noticed a decrease in the unsafe use of
electronic devices within locomotive cabs since the Order became
effective, but the problem still exists.
    FRA has considered the costs and benefits of this proposed rule.
Relative to the current requirements of EO 26, the only additional
burden produced by the requirements of this proposed rule is that
related to revising programs and initial training focused on the
exceptions that this proposal would introduce. This added burden would
total approximately $286,000. The exceptions to the existing
restrictions on the use of electronic devices would 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 would justify the
relatively minor cost burden. In an effort to also evaluate the
requirements that would 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
$22.4 million (discounted at 7%) or $30.2 million (discounted at 3%).
The break-even analyses show that, in all scenarios considered, it
would 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 proposed rule, the
frequency and severity of accidents together with the observed rising
incidence of improper use of cell phones and other electronic devices
strongly suggest that the elimination of improper electronic device
usage by railroad operating employees, as proposed in this rule, will
prevent more than one fatality every two years, and therefore, that the
benefits of the requirements proposed exceed the costs.

C. 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 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.

D. Legal Basis for the Rulemaking

    Congress required the Secretary of Transportation (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 Administrator of FRA. 49
CFR 1.49(oo). In addition, the Secretary has delegated general
rulemaking authority to the Administrator, which FRA also is relying on
for this proposed regulation. 49 CFR 1.49(m).

E. 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.\1\
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    \1\ Ranney, 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-Distraction-A-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/template.MAXIMIZE/
menuitem.8f0a414414e99092b477cb30343c44cc/
?javax.portlet.tpst=4670b93a0b088a006bc1d6b760008a0c_ws_
MX&javax.portlet.prp_4670b93a0b088a006bc1d6b760008a0c_
viewID=detail_
view&itemID=97b964d168516110VgnVCM1000002fd17898RCRD&overrideViewName
=Article.
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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.\2\ 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-and-a-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.
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    \2\ National Highway Traffic Safety Administration (2009).
``National Motor Vehicle Crash Causation Survey: Report to
Congress.'' DOT HS 811 059. Available online at: http://www-
nrd.nhtsa.dot.gov/Pubs/811059.PDF.
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    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 crash-associated 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, near-crashes, and crashes for 100 cars over a one-year
period.\3\ 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.'' \4\ 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.
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    \3\ 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.
    \4\ Neale et al., supra note 3.
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    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.\5\ 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.
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    \5\ 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.
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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.\6\
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 hand-held 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 hand-held cell
phone at any given daylight moment.\7\ 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.\8\
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    \6\ National Highway Traffic Safety Administration (2009).
``Driver Electronic Device Use in 2008.'' DOT HS 811 184. Available
online: http://www-nrd.nhtsa.dot.gov/Pubs/811184.PDF.
    \7\ National Highway Traffic Safety Administration (2008).
``Driver Electronic Device Use in 2007.'' DOT HS 810 963. Available
online at: http://www-nrd.nhtsa.dot.gov/Pubs/810963.PDF.
    \8\ NHTSA (2008) supra note 7 and NHTSA (2009) supra note 6.
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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.\9\ 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.
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    \9\ Boyle, 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.
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    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.

F. Other Efforts

1. State Action
    Rhode Island recently enacted a ban on text messaging, becoming the
19th State (in addition to the District of Columbia and Guam) to
prohibit all drivers from using a text messaging device to write or
send a text message while operating a motor vehicle in motion or in the
travel portion of a roadway. The law, effective November 10, 2009,
makes the activity a primary enforcement crime with the potential of a
civil penalty to be imposed and a fine if convicted.
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.

II. Summary of Proposed Rule

    The proposed rule largely codifies E.O. 26. Some substantive
changes have been made in response to comments from interested parties
and practical issues that FRA discovered since the Order was issued.
FRA is proposing to keep many of the same restrictions on personal and
railroad-supplied devices as in the Order, but has altered them
somewhat to account more appropriately for such issues as calculators,
cameras, and the usage of electronic devices by deadheading employees.

III. Comments from Interested Parties on Railroad Operating Employee
Use of Electronic Devices

A. General

    FRA has already received significant input from a Railroad Safety
Advisory Committee (RSAC) working group on the issue of railroad
operating employees using electronic devices. At the time that FRA
decided to issue an emergency order, FRA had already been working
within the RSAC's Operating Rules Working Group to create an FRA Safety
Advisory and was near a final draft. That proposed Safety Advisory and
the suggestions and concerns voiced by members of the RSAC were
instrumental in FRA's development of the Order.
    Despite these previous consultations and discussions with
stakeholders, there was still concern about some of the requirements of
the Order. On November 14, 2008, the United Transportation Union (UTU)
and the Brotherhood of Locomotive Engineers and Trainmen (BLET)
(collectively, ``Unions'') jointly filed a Petition for Review
(Petition) of the Order. The Petition cited four concerns:
    (1) The Order did not exempt deadheading employees who were in the
body of a passenger train or railroad business car, or inside of the
cab of locomotive that was not the lead locomotive of the train;
    (2) The Order prohibited employees from taking a picture or video
of a safety hazard with an electronic camera;
    (3) The Order prohibited the use of calculators;
    (4) The Order prohibited the use of Global Positioning System (GPS)
tracking devices, even to verify the accuracy of the speed indicator in
a controlling locomotive.
This proposed rule addresses the Unions' concerns and adopts the
substance of many of their suggestions.
    The Association of American Railroads (AAR) responded to the
Unions' Petition in a letter dated December 3, 2008. AAR asserted that
the changes suggested in the Petition are unnecessary, could create
distractions, or would make E.O. 26 ``difficult, if not impossible'' to
enforce. AAR recommended that the changes suggested in the Petition
should be ``scrutinized'' as part of the study of the use of ``personal
electronic devices, including cell phones, video games, and other
distracting devices'' that is required by Sec. 405 of RSIA or discussed
within the RSAC before being adopted. FRA shared some of these concerns
and considered the necessity and potential distractions of each of the
proposed exceptions of the Unions' Petition. Additionally, in this
proposed rule, FRA is endeavoring to protect the enforceability of
limits on the use of electronic devices.

B. Deadheading Employees

    The Petition recommended adding an exception for deadheading
employees to use cell phones. The specific language proposed was as
follows:

    A railroad operating employee who is deadheading may use a cell
phone while within the body of a passenger train or railroad
business car, or while inside the cab of a locomotive that is not
the lead locomotive of the train on which the employee is
deadheading.

    FRA recognizes that the scope of the Order is far-reaching and in
some cases, covers employees in situations in which the safety hazards
that the Order was designed to prevent do not arise. The Order
currently states, ``Use of a personal electronic or electrical device
to perform any function other than voice communication while on duty is
prohibited.'' A railroad operating employee is on duty even when he or
she is simply deadheading to a duty station, even if the deadheading
takes places in a motor vehicle. He or she is not, however, on duty nor
off duty, but in limbo, if deadheading from a duty station to the point
of final release and so is not currently covered by the Order even if
he or she is distracting a locomotive engineer operating a train by
talking on a cell phone right next to him or her. FRA has decided to
address the issues in deadheading directly to guard against the hazards
of distractions by electronic devices in a more focused and consistent
manner.
    The proposed rule allows 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. The proposed rule would
require deadheading employees within the cab of a controlling
locomotive to have electronic devices turned off when the train is
moving or in other situations in which the crewmembers responsible for
operating the train need to be able to focus. FRA believes that these
proposed changes would restrict the use of electronic devices in a more
appropriate manner to address safety concerns.

C. Cameras

    The Petition also recommended that cameras be permitted to document
safety hazards. Specifically, it recommended the following language to
be added as an exception:

    An electronic still or video camera may be used to document a
safety hazard or a violation of a rail safety law, regulation, order
or standard; provided, that (1) the use of a camera in the cab of a
moving train may only be by a crew member other than the locomotive
engineer, and (2) the use of a camera by a train employee on the
ground is permissible only when (a) the employee is not fouling a
track, (b) no switching operation is underway, (c) no other safety
duties are presently required, and (d) all members of the crew have
been briefed that operations are suspended. The use of the
photographic function of a cell phone is permitted under these same
conditions.

    FRA believes that allowing employees to document safety hazards
could be useful in certain situations, but realizes that cameras can be
exceptionally distracting. To that end, FRA is proposing the following:
the camera may only be used to document a safety hazard or safety
violation; the camera must be a stand-alone device and turned off
immediately after the picture is taken; and the locomotive engineer
must not take pictures in the cab of the controlling locomotive of a
moving train.
    These conditions are reasonable. EO 26 currently has no exception
for cameras. They can, however, serve a useful purpose if used properly
but also create unsafe situations. To that end, FRA is proposing that a
camera may be used only by someone other than the locomotive engineer
and only to document safety hazards. In addition, the camera must be a
stand-alone device. Enforcement of restrictions on

electronic devices is already difficult because the prohibited use
often has to be witnessed first-hand for a violation to be discovered.
If the exception existed as recommended by the Petition, railroad
operating employees caught using their cell phones for sending a text
message might allege that they were using the camera function instead.
Requiring that the camera be a stand-alone device prevents this
enforcement problem.

D. Calculators

    The use of calculators was another desired exception contained
within the Petition. In particular, the Petition requested the
following exemption:

    When mathematical calculations are required for safe train
movement (e.g., managing correct horsepower per ton, calculating
tons per operative brake, dynamic brake and tractive effort
compliance, and correcting train length), it is permissible to
perform such calculations by using an electronic calculator, or by
using the calculator function of a cell phone or electronic
timepiece.

    FRA agrees that train crews can have a legitimate need for a
calculator in some instances. To that end, FRA has decided to exclude
stand-alone 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. The proposed rule, however, does not permit the use of
a calculator function of a cell phone or electronic timepiece, for the
same reason that cameras must be stand-alone devices; enforcing limits
on the use of electronic devices could be hampered by allowing some
uses but not others of a device at any given time.

E. GPS Devices

    Noting that FRA regulations require speed indicators of most
locomotives to be checked as soon as possible after departure, the
Petition requested that the use of Global Positioning System (GPS)
devices to be excluded from the Order for that purpose. The Petition
requested an exception that stated, ``A Global Positioning Satellite
(GPS) tracking device may be used in order to verify the accuracy of
the speed indicator in a controlling locomotive.''
    FRA is concerned that these devices could distract operating
employees and potentially create an unsafe situation. We do not believe
that any potential advantage of allowing these devices outweighs the
safety hazard involved and accordingly such use is proposed to be
prohibited.

IV. Other Considerations

A. Medical Devices

    Beyond the suggestions and concerns formally addressed in the
Petition, FRA has realized that the Order, in some instances, covered
more situations and devices than was intended or desired. For example,
some diabetics use electronic devices to monitor glucose. These devices
arguably do not fall under the Order's exception for devices that
enhance an individual's ability to perform safety-related tasks. FRA is
proposing an exception for medical devices to encompass both devices
that enhance an ability to perform safety-related tasks, such as
hearing aid, and other devices that protect an employee's health and
well-being.

B. Exception for Working Wireless Communication Devices for Train
Movements

    The Order has an exception for railroad operating employees to use
a railroad-supplied or railroad-authorized electronic device to conduct
train or switching operations ``under conditions authorized under 49
CFR Part 220.'' This exception was included to reflect the reality that
many small railroads use cell phones or similar devices instead of a
working radio and to allow those railroads to continue to do so. The
proposed rule clarifies that this exception was only intended for small
railroads.

C. Locomotive Engineer Certification Revocation

    FRA is considering amending 49 CFR part 240 (part 240) to add
violations of this subpart as a basis for revoking a locomotive
engineer's certification. See 49 CFR 240.117(e). FRA specifically
invites comments on this issue and based on the comments received may
include a revision of part 240 in the final rule issued in this
rulemaking.

V. Enforcement Issues

    One of the concerns FRA had before issuing the Order was that it is
difficult to enforce violations of restrictions on electronic devices
by railroad employees. Unlike equipment or track problems, which can be
readily seen, or even training violations, which must be documented, it
is difficult to detect unauthorized use of cell phones and other
personal electronic devices. FRA inspectors only ride with train crews
a fraction of the time as part of the inspection process. It is
unlikely that a locomotive engineer operating a moving train would
begin to text message or call friends while an FRA inspector was
present. Of course, personal cell phone records, combined with the
operating record of the locomotive, would be able to indicate that the
locomotive engineer was improperly calling someone while the engineer
was supposed to be fully focused on operating a train.
    Because of the evidentiary difficulties associated with
establishing violations of restrictions on use of electronic devices,
and the help that personal phone records would provide, FRA considered
adding a provision regarding those records. FRA debated requiring
railroads to require their operating employees to allow the railroads
access to the employees' personal cell phone records if the employees
were involved in any accident for which the employer has a reasonable
belief that the employees' acts or omissions contributed to the
occurrence or severity of the accident. FRA declines to add such a
provision at this time. A significant factor in this determination is
the broad statutory authority that FRA has to investigate accidents,
including the issuance of subpoenas, under 49 U.S.C. 20107 or 20902.
When there is a reasonable belief that an accident was caused or
affected by a railroad operating employee's actions or omissions, FRA
will subpoena that employee's cell phone records or other personal
records if they are related to FRA's investigation. FRA does so now.
However, FRA is requesting comment on the utility of such a provision
and whether it would be useful in gathering data on safety incidents
that do not result in accidents. FRA also seeks comment on the privacy
concerns implicated by such a measure and on any suggested procedures
or limitations that should be followed in the event FRA ever proposed
such a provision.
    FRA understands that this rulemaking covers a wide range of devices
and that many of these electronic devices have become ingrained in our
contemporary culture. FRA also understands that, in a genuine personal
emergency, employees of some railroads have an advantage in their
ability to be contacted through channels that the railroad has created.
FRA did not, however, expressly include an exception for personal
emergencies. FRA requests comments on whether an express exception
should be created to address personal emergency situations and, if so,
how it should be expressed.

VI. Section-by-Section Analysis

    All section references below refer to sections in Title 49, Part
220 of the Code of Federal Regulations (CFR). FRA seeks comments on all
proposals made in this NPRM. Proposed Amendments to 49 CFR part 220
(part 220).

Section 220.1 Scope

    FRA proposes to amend the scope of Sec.  220.1 to include the new
subpart C proposed by this NPRM. The proposed 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 220.5 Definitions

    FRA proposes to amend the existing ``definitions'' section for Part
220 by both adding new definitions and amending an existing definition.
FRA proposes to add new definitions for the following terms: earpiece;
fouling a track; in deadhead status; medical device; electronic device;
personal electronic device; railroad operating employee; railroad-
supplied electronic device; and switching operation. FRA also proposes
to amend Part 220's existing definition of ``train.''
    Of the new terms that FRA proposes to add to this section, all but
two had been previously defined in the Order. Some of those definitions
have been amended slightly to be more efficiently focused toward
accomplishing the goals of this proposed rule. For example, in
describing ``electronic device,'' FRA broadens that description from
that found in the Order to ensure that the definition in the proposed
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. This rule instead
obviously intends to address electronic devices that are not part of
those systems. 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 stop watch function in order
to verify the train's speed, but then might proceed to use that device
in an otherwise impermissible manner.
    FRA has also chosen to refer to an ``electronic or electrical
device'' as only an ``electronic device'' in the proposed rule. We have
done so both for the purposes of complying with plain language
directives and for brevity. We have also done so because, based on our
research, ``electronic device'' is a more accurate descriptor of the
devices meant to be subject to this proposed 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 proposed 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. FRA has slightly changed that definition in order to focus
more narrowly on which devices will be considered railroad-supplied.
    The only truly new definitions that were not established in some
form in the Order are for the terms ``earpiece,'' ``in deadhead
status,'' and ``medical device.'' FRA proposes to add a definition for
the term ``in deadhead status'' because below in proposed Sec.  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 proposed is similar to and
consistent with the existing definition of ``deadheading'' found in
existing 49 CFR 228.5. FRA also proposes adding 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. After having had additional time since the publication of
the Order to contemplate its effect, 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.
    Next, FRA proposes to amend the existing definition of a ``train''
in Sec.  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 have proposed that the definition of a
``train'' for purposes of subpart C would go beyond locomotive or
locomotives coupled to one or more cars that are subject to the
requirements of an air brake test. We propose 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 proposed 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 Sec.  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 proposed rule.

Subpart C--Electronic Devices

Section 220.301 Purpose and Application
    FRA proposes to amend part 220 by adding a new subpart C. FRA's
purpose for promulgating this new 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 proposed 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 proposed
Sec.  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 new proposed subpart describes both its purpose
and application. Paragraph (a) of this section merely restates the new
subpart's purpose as described above. Paragraph (b) makes clear that
the new proposed 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 proposed
regulation also does not in any way propose to 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. Proposed 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 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 220.303 General Use of Electronic Devices
    FRA is proposing to add Sec.  220.303 to this new subpart to set
forth general guidance regarding the use of electronic devices. This
proposed 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 proposed rule or by railroad operating rules.
Section 220.303 is intended to be restrictive, as FRA views any use of
electronic devices not contemplated in this proposed subpart as capable
of distracting employees while on duty.
Section 220.305 Use of Personal Electronic Devices
    This section is being proposed to prohibit 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-suppled electronic devices. See proposed Sec.
220.307 discussed below. Provisions (a) through (c) of this proposed
section dictate certain safety-critical 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 proposed 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 Railroad-Supplied Electronic Devices
    This section is proposed to address the use of electronic devices
that are supplied by the railroad to employees, other than a working
railroad radio. 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.
    Paragraph (b) sets forth the specific instances where FRA proposes
to prohibit 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 Sec.  220.305, paragraph (b) of Sec.  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 it considers paragraph
(b)(3) of this section to encompass those times when passengers are
boarding or alighting from a train. For example, if a locomotive
engineer at the controls of a passenger train was using a railroad-
supplied electronic device while the train was stopped and passengers
were boarding, FRA views that conduct as a violation of this proposed
regulation. 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. This paragraph (c)
states that it only proposes to permit use of a mobile telephone or
remote computing device. These two devices may only be used if a safety
briefing is held by all crewmembers in the locomotive, who must then
also 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. FRA has also chosen to restrict the number of devices that may
be used to only two. By limiting the type of devices that are permitted
to be used under the authority of this paragraph, FRA is attempting to
ensure minimum distractions and narrow the scope of this provision.
This provision and the provision found in paragraph (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 Sec.  220.311.
    Paragraph (d) of proposed Sec.  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 three 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 proposed
section, states that all operations must be suspended. For example,
this provision requires that no switching operations are being
performed, no portion of an air brake test is in progress, or
essentially that no duties are presently required of the crewmember,
including railroad radio communications. The third condition is that
all crewmembers must be briefed that operations have been suspended
before use of a device under this provision is permissible. 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.
Section 220.309 Permitted Uses
    This section proposes to establish 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 BLET and UTU's proposed GPS device exception 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. However, we welcome additional comment
and input on this subject. 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 proposed rule, and also specifically
with the general prohibition established by proposed Sec.  220.303
discussed above.
    Paragraph (a) of Sec.  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. Importantly, FRA also notes
that this exception must not be read to permit a locomotive engineer at
the controls of a moving train, or in any of the situations described
in proposed Sec.  220.307(b), to use one of these devices.
    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 proposed 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 Sec.  220.303(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) sets forth the proposed guidelines under which an
employee may take a photograph or video to document a safety hazard or
violation of a rail safety regulation, order, or standard, subject to
several requirements. This permitted use was suggested by the BLET and
UTU, as discussed above. This proposed provision dictates that only
cameras whose primary function is for taking still pictures or videos
may be used. As stated in the rule text, a camera that is part of a
cell phone or other electronic device is not included in this exception
for the reasons explained above. 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 safety-related 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.
While FRA realizes the importance of documenting potential hazardous
conditions, we emphasize that such documentation should only be made
when the taking of the documentation itself would not create a
hazardous situation.
    Paragraph (d) permits the use of a calculator, as also suggested by
the BLET and UTU in response to the Order. 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 safety-related 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 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, to be used. The temptation afterward to then use that device
for another non-permissible electronic activity might be too great, and
again could cause enforceability problems for FRA. It should be noted,
however, that this exception should not be read to permit a locomotive
engineer to use a calculator on a moving train, or in any of the
situations described in proposed Sec.  220.307(b).
    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 Sec.  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 Sec.  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 proposes 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 proposed 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 proposes to establish 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 Sec.  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
that employee's personal safety or any other employee's performance of
safety related duties. FRA proposes this loosened restriction on
employees in deadhead status as we recognize that while deadheading,
operating employees typically do not have any safety-related
responsibilities. As stated above, these proposed 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 proposed 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 Sec.  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 proposed provision more strictly prohibits the use of
any railroad-supplied device than does Sec.  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 proposed section would require railroads to provide
instruction to its operating employees on the substance of this
proposed regulation if adopted. This instruction is obviously a
necessary requirement if employees would be operationally tested by
railroad supervisors on the substance of this regulation, as FRA has
proposed in Sec.  220.315(a). Very simply, by requiring such training
we also hope also to ensure that both railroads and their employees are
fully aware of the requirements of the final regulation.
    In paragraph (a), FRA proposes that each railroad maintain a
written program that will qualify its operating employees for
compliance with operating rules implementing the requirements of the
final rule. The written program may be consolidated with the program of
instruction required under 49 CFR 217.11. Paragraph (a)(1) would
specifically require that the program include instruction on both the
requirements of this subpart as well as consequences of non-compliance.
Paragraph (a)(2) proposes that the written program be required to
include instruction on specific provisions of this rule. FRA notes that
proposed paragraph (a)(2)(iii) would specifically require that
instruction be provided on the distinctions between the requirements of
the final rule and any more stringent railroad operating rules. FRA
proposes to mandate this instruction because of 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 the
final rule had 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 quite different, and in some instances much
more severe than those that a railroad might take against an individual
employee for a violation of its operating rules. The distinction is
also important given FRA's request for public comment above on whether
violations of the final rule should be considered for purposes of
locomotive engineer certification revocation in the future.
    Paragraph (b) sets the proposed implementation schedule for this
section. Paragraph (b) states that within 120 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. Under paragraph (b)(1), after 120 days from the publication
date of the final rule FRA proposes no further grace period and
requires that employees receive recurrent training at least every three
years. FRA expects that new operating employees would receive the
proper training before being allowed to perform duties subject to the
requirements of this subpart. FRA proposes a three-year recurrent
training window in this paragraph because it is a standard industry
practice to re-qualify employees on operating rules at least every
three years. Finally, in paragraph (b)(2), FRA proposes that records
maintenance of the training required by this section shall serve as
documentation that employees have been qualified on the requirements of
this subpart.
    In paragraph (c), FRA proposes that training records discussed in
paragraph (b)(2) 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 trained 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 also would allow for railroads 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 proposed paragraph
would require that the Associate Administrator for Railroad Safety/
Chief Safety Officer only disapprove programs of instruction, training,
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 proposes that its notification of such disapproval 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
would be 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) proposes
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.
    The approach as proposed in paragraph (d) recognizes that FRA will
want to review such written programs during audits or investigations,
and that FRA should have the authority to request changes to the
program if it does

not meet the minimum requirements of this rule. FRA does not intend to
have each railroad submit its program for review and explicit approval.
Rather, FRA intends to review the qualification programs of the major
railroads over a multi-year cycle, in connection with review of the
overall program of operating rules, to determine if they are effective.
Section 220.315 Operational Tests and Inspections; Further Restrictions
on Use of Electronic Devices
    This section proposes to mandate that railroads perform operating
tests to ensure operating employees' compliance with proposed Subpart
C. FRA also proposes this requirement to both help ensure that
railroads provide employee instruction on the conditions of this
subpart and to verify that the requirements of the subpart are being
adhered to.
    Paragraph (a) sets forth specific guidelines on the minimum number
of operational tests that must be performed by referring to the
guidelines established in 49 CFR part 217, Railroad Operating Rules.
Per part 217, railroads are already required to perform regular
operating tests on employees. This paragraph would merely add the
proposed Subpart C to that existing requirement.
    Paragraph (b) of this section proposes to prohibit railroad
supervisors from calling or sending a text message to an electronic
device of a locomotive engineer during an operating test while the
train to which the engineer is assigned is moving. This is 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, paragraph (c) also proposes to prohibit the use of
electronic devices by operating employees during an operating test.
This necessarily requires that for this prohibition to apply, that
employees be aware that an operating test is being conducted, as FRA
recognizes that during certain operating tests employees might not be
aware a test is in progress. FRA proposes this section so that during
operating tests employees do not attempt what might otherwise be a
permissible use of devices.
    Operating tests present valuable learning opportunities that help
to facilitate railroad safety. Therefore, it is FRA's goal that during
operating tests both employees and railroad supervisors utilize the
process in a way most beneficial to promoting rail safety. FRA proposes
this section to help minimize employee distraction to ensure that those
opportunities are fully utilized.

VII. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This proposed 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
preliminary determination by finding that, although the economic
effects of the proposed regulatory action would 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 the first 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 this final rule.
    The RIA details estimates of the costs likely to be induced over
the first twenty years after promulgation. This analysis also includes
break-even analyses, or estimates of the monetized benefits that would
be necessary to achieve to offset the total costs of the proposed rule.
Informed by its analysis of the economic effects of both EO 26 and this
proposed rule, FRA believes that this proposed rule will achieve the
same safety outcome as EO 26 at a lower cost. The proposed 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 proposed rule more cost-effective. The costs that may be
induced by this proposed rule over the twenty-year 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 training employees; and the cost of
calculators and cameras for train crew use. Indirect costs may include
the opportunity cost of railroad operating employees' time spent in
safety briefings. The summed total of the estimated direct costs over
the first twenty years of the proposed rule 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 from this proposed rule 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 proposed rule would be costs that are already being incurred
through the implementation of EO 26. The table below summarizes both
the direct and indirect costs 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%   Twenty-year total  (7%
                                                                     discount rate)           discount rate)
----------------------------------------------------------------------------------------------------------------
Direct costs:
    Revising programs.........................................               $48,007.64               $45,834.97
    Performing operational tests..............................               633,087.44               468,318.78
    Training..................................................            11,586,287.79             8,635,014.44
    Cameras...................................................               334,951.39               252,434.85
    Calculators...............................................                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                   30,238,989.11            22,368,926.84
     briefings................................................
                                                               -------------------------------------------------
        Total indirect costs..................................            30,238,989.11            22,368,926.84
----------------------------------------------------------------------------------------------------------------

    Although FRA has not estimated the benefits of this rule, 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 would not
require an unreasonable decrease in the annual probability of such an
accident in order for the proposed 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 proposed rule cost-
beneficial. As an alternative framework, FRA compared the costs of the
proposed rule to the minimum number of statistical fatalities that
would need to be prevented for the rule 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
twenty-year period examined, the regulation would yield positive net
benefits. If considering direct and indirect costs, the regulation
would yield positive net benefits if it prevented 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 fatal accident every
two years would justify the requirements of the proposed rule. For some
perspective on the achievability of such prevention, FRA notes that
over the period from 2000 to 2008, electronic device usage in trains
likely caused or contributed to accidents resulting in at least 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 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 proposed in
this rule, will yield safety benefits that will exceed the costs. FRA
requests comments on the Regulatory Impact Analysis.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, FRA developed this NPRM 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 an agency 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 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 Order citing some valid concerns.
FRA is now proposing to codify most of the requirements of the Order
with some modifications to accommodate changes previously recommended
by a Petition for Review of that Order as well as a number of
amendments that FRA believes are appropriate.
    FRA is certifying that the proposed rule will result in ``no
significant economic impact on a substantial number of small
entities.'' The reasons for this certification are explained in the
following section of this preamble.
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 NPRM. In this case, the ``universe''
is comprised solely of small railroads.
    ``Small entity'' is defined in 5 U.S.C. 601 (Sec. 601). Sec. 601(3)
defines ``small entity'' as having the same meaning as ``small business
concern'' under Sec. 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. Sec. 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 field of operations. Additionally, Sec.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 be classified as a
``small entity'' is 1,500 employees for ``Line-Haul Operating''
railroads, and 500 employees for ``Short-Line Operating''
railroads.\10\
---------------------------------------------------------------------------

    \10\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS
Codes 482111 and 482112.
---------------------------------------------------------------------------

    SBA size standards may be altered by Federal agencies 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, which formally establishes small entities as railroads that
meet the line haulage revenue requirements of a Class III railroad.\11\
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
threshold for a Class III railroad carrier, which is adjusted by
applying the railroad revenue deflator adjustment.\12\ FRA is using
this definition for this rulemaking.
---------------------------------------------------------------------------

    \11\ See 68 FR 24891, May 9, 2003.
    \12\ For further information on the calculation of the specific
dollar limit, see 49 CFR part 1201.
---------------------------------------------------------------------------

    Approximately 700 railroads meet the criteria for small entity and
report operational data to FRA. We are using this as our estimate of
the universe of small entities that could be directly impacted by the
proposed rule. Many of these railroads rely on cell phones for train
operations.
    Like EO 26, the proposed rule contains exceptions that would allow
railroads that have less 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 a
railroad-supplied or railroad-authorized electronic device to conduct
train or switching operations ``under conditions authorized under 49
CFR Part 220'' is 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.
    The proposed rule contains additional flexibility that would reduce
the impact relative to EO 26. Having considered the Petition for Review
of the Order, FRA is proposing to (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 stand-alone 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 proposing an exception for
medical devices to encompass both devices that enhance an ability to
perform safety-related tasks, such as hearing aid, and other devices
that protect an employee's health and well-being.
    In general, small railroad costs associated with compliance with EO
26 would continue to accrue under FRA's proposal. Additional burden to
such railroads would come from the requirement to provide instruction
to its operating employees on the substance of the proposed regulation
as well as the need to update their written programs to qualify its
operating employees for compliance with operating rules implementing
the requirements proposed. 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 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 would
be impacted, and about 20 percent of these would be small railroad
employees. Assuming a cost per hour of employee trained of $43.37, the
total cost of this additional instruction would be approximately
$200,000 for small railroads or an average of $300 per railroad.
Revision of programs is not expected to entail more than one labor hour
per railroad. These two one-time costs would likely not significantly
burden any small railroads.
    Additional railroad costs transferred from EO26 include the costs
associated with performing operational tests and conducting periodic
training. Given that operational tests and training associated with
this regulation would be conducted with other required operational
testing and training, the additional annual cost will total about as
much as the cost in the first year for instruction and program
revision. Again, this cost would likely not significantly burden small
railroads.
    Because this rule would apply to all small railroads, we have
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 the proposed rule are not significant and are very similar to
those currently incurred under EO 26. FRA requests comments on all
aspects of this analysis.
2. Certification
    Pursuant to the Regulatory Flexibility Act, the Federal Railroad
Administration Administrator certifies that this proposed rule would
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 proposed rule, they would not be significantly
impacted.

C. Paperwork Reduction Act

    The information collection requirements in this proposed 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:

----------------------------------------------------------------------------------------------------------------
                                      Respondent         Total annual      Average time per      Total annual
           CFR Section                 universe            responses           response          burden hours
----------------------------------------------------------------------------------------------------------------
220.8--Waivers..................  728 Railroads.....  6 petitions.......  1 hour............  6 hours.
220.25--Instruction in Proper     728 Railroads.....  91,000 trained      30 minutes........  45,500 hours.
 Use of Radio Communication.                           Employees.
    --Subsequent Years..........  728 Railroads.....  12,540 trained      30 minutes........  6,270 hours.
                                                       Employees.
    --Operational Testing of      728 Railroads.....  100,000 tests.....  5 minutes.........  8,333 hours.
     Employees.
220.37--Testing of Radios and     728 Railroads.....  780,000 tests.....  30 seconds........  6,500 hours.
 Wireless Devices.
220.61--Transmission of
 Mandatory Directives:
    --Copying of Mandatory        728 Railroads.....  7,200,000 copies..  1.5 minutes.......  180,000 hours.
     Directives.
    --Marking Mandatory           728 Railroads.....  624,000 marks.....  15 seconds........  2,600 hours.
     Directives.
----------------------------------------------------------------------------------------------------------------
                                                NEW REQUIREMENTS
----------------------------------------------------------------------------------------------------------------
220.307--Use of Railroad-         728 Railroads.....  728 amended RR Op.  1 hour............  728 hours.
 Supplied Electronic Device as                         codes.
 Specified in Writing.
    --Engineer and Train Crew     91,000 Employees..  5,460,000           1 minute..........  91,000 hours.
     Briefings To Use RR-                              briefings.
     Supplied Electronic Device
     Inside/Outside of
     Locomotive Cab.
220.313--Instruction: Railroad    728 Railroads.....  728 amended         1 hour............  728 hours.
 Written Program of Instruction.                       programs.
    --Implementation: Training    91,000 Employees..  91,000 trained      15 minutes........  22,750 hours.
     of Employees.                                     Employees.
    --Records: Successful         728 Railroads.....  91,000 records....  5 minutes.........  7,583 hours.
     Completion of Training.

    --Approval Process:           728 Railroads.....  6 revised programs/ 60 minutes........  6 hours.
     Disapproval of RR Written                          written resp.
     Program of Instruction or
     Written Response in Support
     of Program.
220.315--Operational Tests/       728 Railroads.....  Burden Incl. Under  Burden Incl. Under  Burden Incl. Under
 Inspections--Revision of RR                           OMB No. 2130-0035.  OMB No. 2130-0035.  OMB No. 2130-
 Program of Operational Tests                                                                  0035.
 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.
    Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments
concerning: Whether these information collection requirements are
necessary for the proper performance of the functions of FRA, including
whether the information has practical utility; the accuracy of FRA's
estimates of the burden of the information collection requirements; the
quality, utility, and clarity of the information to be collected; and
whether the burden of collection of information on those who are to
respond, including through the use of automated collection techniques
or other forms of information technology, may be minimized.
    For information or a copy of the paperwork package submitted to
OMB, contact Mr. Robert Brogan, FRA Office of Safety, Information
Clearance Officer, at<PHONE_NUMBER>, or Ms. Kimberly Toone, FRA Office
of Administration, Information Clearance Officer, at<PHONE_NUMBER>.
    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to Mr. Robert
Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New
Jersey Avenue, SE., 3rd Floor, Washington, DC 20590. Comments may also
be submitted via e-mail to Mr. Brogan or Ms. Toone at the following
addresses<EMAIL_ADDRESS><EMAIL_ADDRESS>    Written comments may also be sent to the Office of Information and
Regulatory Affairs (OIRA) of the Office of Management and Budget at 725
17th St., NW., Washington, DC 20503 or sent electronically via e-mail
at the following address<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this proposed 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. The final rule will
respond to any OMB or public comments on the information collection
requirements contained in this proposal.
    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 NPRM 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 NPRM that might trigger the need for a more detailed
environmental review. As a result, FRA finds that this NPRM 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 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.
    Section 20106 of Title 49 of the United States Code provides that
all regulations prescribed by the Secretary related to railroad safety
preempt any State law, regulation, or order covering the same subject
matter, except a provision necessary to eliminate or reduce an
essentially local safety or security hazard that is not incompatible
with a Federal law, regulation, or order, and that does not
unreasonably burden interstate commerce. This NPRM proposes a
regulation that is related to railroad safety and, accordingly, is
intended to result in a final rule that has preemptive effect pursuant
to section 20106. The requirements of the final rule would be intended
to establish a uniform Federal safety standard that must be met, and
State requirements covering the same subject would be displaced,
whether those standards are in the form of State statutes, regulations,
local ordinances, or other forms of State law, including common law.
This is consistent with past practice at FRA, and within the Department
of Transportation.
    When FRA prescribes a final rule in this rulemaking, the final rule
would not preempt an action under State law

seeking damages for personal injury, death, or property damage alleging
that a party has failed to comply with the Federal standard of care
that would be established by the final rule, including a plan or
program that would be required by the final rule. Provisions of a plan
or program that exceed the requirements of the final rule would not be
included in the Federal standard of care. This is also consistent with
past practice at FRA, and within the Department of Transportation.
    FRA has analyzed this NPRM in accordance with the principles and
criteria contained in Executive Order 13132. This NPRM will not have a
substantial effect on the States, on the relationship between the
Federal government and the States, or on the distribution of power and
responsibilities among various levels of government. This NPRM will not
have federalism implications that impose any direct compliance costs on
State and local governments. Consequently, FRA concludes that this NPRM
has no federalism implications.

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 $141,300,000 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 NPRM will not result in the
expenditure, in the aggregate, of $141,300,000 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 NPRM in accordance with Executive Order 13211. FRA has determined
that this NPRM is not likely to have a significant adverse effect on
the supply, distribution, or use of energy. Consequently, FRA has
determined that this NPRM 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 Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend
part 220 of 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, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR 1.49.

    2. Revise Sec.  220.1 to read as follows:

Sec.  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.
    3. Section Sec.  220.5 is amended by adding definitions for
``Earpiece,'' ``Electronic device,'' ``Fouling a track,'' ``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:

Sec.  220.5  Definitions.

* * * * *
    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 or on a remote control transmitter necessary for a
locomotive engineer 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.
* * * * *
    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) 49 U.S.C. 21103, ``Limitation on duty hours of train
employees'' (i.e., an individual engaged in or connected with the
movement of a train, including a hostler);
    (2) 49 U.S.C. 21103 as it was in effect on October 15, 2008, the
day before the enactment of the Rail Safety Improvement Act of 2008,
Public Law 110-432, Div. A, 122 Stat. 4848, October 16, 2008 (i.e.,
train employees providing commuter rail passenger transportation or
intercity rail passenger transportation as defined in 49 U.S.C. 24102);
or
    (3) Any Federal Railroad Administration regulations prescribed
pursuant to 49 U.S.C. 21109 governing hours of service related to 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.
* * * * *
    Switching operation means the classification of freight 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, 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, means:
    (1) A single locomotive,
    (2) Multiple locomotives coupled together, or
    (3) One or more locomotives coupled with one or more cars.
* * * * *
    4. Add a new Subpart C to part 220 to read as follows:
Subpart C--Electronic Devices
Sec.
220.301 Purpose and application.
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.
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

Sec.  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 Sec.  220.3;
this subpart, however, does not affect the use of working wireless
communications pursuant to Subparts A and B.
    (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.

Sec.  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 employee's
performance of safety-related duties.

Sec.  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--
    (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.

Sec.  220.307  Use of railroad-supplied electronic devices.

    (a) General restriction. A railroad operating employee may use a
railroad-supplied electronic device only for an authorized business
purpose as specified by the railroad in writing.
    (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 except for a mobile telephone or
remote computing device which the employee may use only if, before
use--
    (1) A safety briefing that includes all crewmembers is held; and
    (2) All crewmembers agree that it is safe to use the railroad-
supplied mobile telephone or remote computing 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;
    (2) Operations are suspended; and
    (3) All members of the crew have been briefed that operations are
suspended.

Sec.  220.309  Permitted uses.

    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 safety-related 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 or video to document
a safety hazard or a violation of a rail safety law, regulation, order,
or standard, provided that--
    (1) The device's primary function is as a camera for taking still
pictures or

videos (A camera that is part of a cell phone or other multi-functional
electronic device is not included in this exception.);
    (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 from the requirement of a working
radio under Sec.  220.9(b) when the employing railroad has fewer than
400,000 annual employee work hours.

Sec.  220.311  Railroad operating employees in deadhead status.

    (a) Notwithstanding 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
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.

Sec.  220.313  Instruction.

    (a) Program. Beginning [90 (or 120 where indicated) DAYS FROM THE
DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], each
railroad shall maintain a written program of instruction, training, 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, training, or examination
required by this subpart with the program of instruction required under
Sec.  217.11 of this chapter.
    (1) The written program of instruction, training, and examination
shall address the requirements of this subpart, as well as consequences
of noncompliance.
    (2) The written program of instruction, training, 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 trained 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 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 trained
prior to [90 (or 120 where indicated) DAYS FROM THE DATE OF PUBLICATION
OF THE FINAL RULE IN THE FEDERAL REGISTER].
    (1) Beginning [90 (or 120 where indicated) DAYS FROM THE DATE OF
PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], no employee
shall perform work requiring compliance with the operating rules
implementing the requirements of this subpart unless the employee has
been trained on these rules within the previous three years.
    (2) The records of successful completion of instruction,
examination and training required by this section shall document the
instruction of each employee under this subpart.
    (c) Records. Written records documenting successful completion of
instruction, training, 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
Sec. Sec.  217.9(g) and 217.11(c) of this chapter.
    (d) Approval process. Upon review of the program of instruction,
training, 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.

Sec.  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 locomotive engineer while the train to
which the locomotive engineer is assigned is moving.
    (c) When an operational test involves stopping a train,