the statutory maximum where circumstances warrant. Further, a penalty
may be assessed against an individual only for a willful violation. FRA
did not solicit public comment on this appendix as it is a statement of
agency policy.

IV. Regulatory Impact

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This rule is a significant regulatory action within the meaning of
Executive Order 12866 and the U.S. Department of Transportation's
regulatory policies and procedures (DOT Order 2100.5 dated May 22,
1980; 44 FR 11034, Feb. 26, 1979). FRA has made this determination by
finding that, although the economic effects of the regulatory action
will not exceed the $100 million annual threshold as defined in
Executive Order 12866, the rule is significant because of substantial
public interest in transportation safety and because it is part of a
broader programmatic effort to address distracted transportation
operations. FRA has prepared and placed in the docket a regulatory
impact analysis (RIA) addressing the economic impact of restrictions on
traincrew use of electronic devices as well as the costs of this final
rule.
    The RIA details estimates of the costs likely to be induced over a
twenty year period. This analysis also includes break-even analyses, or
estimates of the monetized benefits that will be necessary to achieve
to offset the total costs of restricting use of electronic devices.
Informed by its analysis of the economic effects of both EO 26 and this
rule, FRA believes that this rule will achieve the same safety outcome
as EO 26 at a lower cost. This rule achieves this outcome more cost-
effectively relative to EO 26 by removing some restrictions on the
usage of electronic devices by deadhead status employees and on the
usage of calculators and cameras, under certain circumstances. These
restrictions in EO 26 likely achieved little to no safety benefits, but
they may have created substantial, unquantifiable opportunity costs,
the removal of which makes this rule more cost-effective. The costs
that may be induced by this rule over the 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 instructing employees on the requirements of
this rule; 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 twenty
years equals about $12.7 million at a 3 percent discount rate and about
$9.5 million at a 7 percent discount rate (in 2009 dollars).
Additionally, the indirect costs that may result are estimated to equal
about $30.2 million at a 3 percent discount rate and $22.4 million at a
7 percent discount rate. The majority of the costs associated with
implementation of the restrictions are for costs that are already being
incurred through the implementation of EO 26. The table below
summarizes both the direct and indirect costs of the restrictions as
considered in the RIA, summed over the twenty-year period analyzed and
discounted to present value using 3 percent and 7 percent discount
rates.

------------------------------------------------------------------------
                                Twenty-year total     Twenty-year total
                               (3% discount rate)    (7% discount rate)
------------------------------------------------------------------------
Direct costs:
    Revising programs *.....             $8,348.02             $6,175.35
    Revising programs for                39,659.62             39.659.62
     rule...................
    Performing operational              633,087.44            468,318.78
     tests..................
    Instruction *...........         11,339,537.79          8,388,404.44
    Instruction on rule.....            246,610.00            246,610.00
    Cameras (potential).....            334,951.39            252,434.85
    Calculators (potential).             75,080.95             74,083.90
                             -------------------------------------------
        Total direct costs..         12,677,415.21          9,475,686.94
Indirect Costs:
    Opportunity cost of              30,238,989.11         22,368,926.84
     additional time spent
     in safety briefings *..
                             -------------------------------------------
        Total indirect costs         30,238,989.11         22,368,926.84
------------------------------------------------------------------------
* Costs already being incurred under EO 26.

    FRA also modified some provisions of the Notice of Proposed
Rulemaking (NPRM) in this final rule. Two of these modifications were
to remove potentially costly provisions that were very unlikely to
yield net benefits. The first of these modifications was with respect
to a proposal in the NPRM, at Sec.  220.307(c), which had allowed a
limited set of railroad-supplied electronic devices to be used by
railroad operating employees not in deadhead status, other than
locomotive engineers, under certain circumstances and only following a
crew safety briefing and unanimous agreement amongst the crew that such
use would be safe.\13\ Specifically, in the NPRM, Sec.  220.307(c) had
limited the railroad-supplied electronic devices that could be used in
certain circumstances to ``a mobile phone or remote computing device.''
\14\ This limitation could have inadvertently stifled the development
or adoption of new technologies that could be used by railroads to
enhance productivity, safety, or for some other purpose. To avoid this
unintended cost of potentially hindering the growth or adoption of
technology, FRA removed the limitation, instead adopting language that
will allow the use of any railroad-supplied electronic device under
prescribed circumstances and following a safety briefing and unanimous
agreement amongst crewmembers that it is safe to use the device.
---------------------------------------------------------------------------

    \13\ Federal Railroad Administration. (2010). ``Notice of
Proposed Rulemaking: Restrictions on Railroad Operating Employees'
Use of Cellular Telephones and Other Electronic Devices.'' Federal
Register, May 18, Vol. 75, No. 95. Available online: http://
www.regulations.gov/search/Regs/
home.html#documentDetail?R=0900006480aef96d.
    \14\ Ibid., p. 27688.
---------------------------------------------------------------------------

    The second modification was with respect to Sec.  220.307(d)(2) in
the NPRM, which had required that, among other conditions, operations
be suspended when a crewmember not in deadhead status outside a cab of
a controlling locomotive used a railroad-supplied electronic device.
The requirement that operations be suspended could have inadvertently
prevented the development or adoption of technologies that potentially
enhance productivity or safety while performing operations. For
example, if some operations are currently performed using printed or
handwritten instructions, FRA recognizes that such instructions could
just as easily be followed on an electronic device--a device that might
also allow the automatic updating of data or instructions and through
such updating increase safety for crewmembers. Thus, in the final rule,
FRA removed the requirement that all operations be suspended before a
crewmember uses a railroad-supplied electronic device outside the cab
of a controlling locomotive, while still requiring that the crewmember
not be fouling a track and that all crewmembers agree that it is safe
to use the device prior to its use.
    Both of the modifications discussed above removed a potentially
costly provision of the NPRM. However, no change in expected costs,
vis-[agrave]-vis the preliminary RIA, is reflected in this final RIA
because the preliminary RIA accompanying the NPRM had not accounted for
these potential costs. FRA had not intended to create such burden.
    Although FRA has not estimated the total benefits associated with
the restrictions on use of electronic devices, FRA has performed break-
even analyses using differing assumptions regarding the frequency and
severity of future accidents caused by or linked to electronic device
usage. In most scenarios considered, it will not require an
unreasonable decrease in the annual probability of such an accident in
order for this rule to at least break even--in fact, for most cases
considered, decreases in relevant accident probability of less than
0.10 would make the rule cost-beneficial. As an alternative framework,
FRA compared the costs to the minimum number of statistical fatalities
that will need to be prevented for implementation to be cost-
beneficial. Considering direct costs alone, if the new regulation
prevented the loss of one-fifth of the value of a statistical life each
year of the twenty-year period examined, the restrictions will yield
positive net benefits. If considering direct and indirect costs, the
restrictions will yield positive net benefits if it prevents the loss
of just half of the value of a statistical life each year over the
twenty-year period examined. In other words, prevention of one fatality
every two years will justify the restrictions. For some perspective on
the achievability of such prevention, FRA notes that over the period
from 2000 to

2008, electronic device usage by train operating employees likely
caused or contributed to accidents resulting in approximately 30
fatalities and over 100 injuries--an average of over three deaths per
year, as well as significant train delay and property damages. The
table below lists the quantifiable benefits considered in the RIA.

------------------------------------------------------------------------
                                 Benefit
-------------------------------------------------------------------------
Fatalities avoided
Injuries avoided
Property damage avoided
------------------------------------------------------------------------

    Given the frequency and severity of accidents together with the
observed rising incidence of improper uses of cell phones and other
electronic devices, FRA is confident that the elimination of improper
electronic device usage by railroad operating employees, as required by
this rule, will yield total monetizable safety benefits that will
likely outweigh total monetized costs.
    Relative to the requirements of EO 26, the only additional burdens
produced by the requirements of this rule are those related to revising
programs and initial instruction focused on the exceptions that this
rule will introduce; the potential cost associated with purchasing
cameras and calculators or carrying ones previously purchased and
available for use should the need arise, which were banned under EO 26,
but are permitted under this rule; and nominal costs associated with
seeking FRA approval for use of railroad-supplied electronic devices
for taking photographs and videos.
    This added burden, estimated over a 20-year period, could total as
much as $696,000, discounted at an annual rate of 3%, or $613,000,
discounted at a rate of 7% and is broken down as follows.

------------------------------------------------------------------------
                                                    PV (3%)     PV (7%)
------------------------------------------------------------------------
Program revision................................     $39,660     $39,660
Initial instruction.............................     246,610     246,610
Potential cost of cameras.......................     334,951     252,435
Potential cost of calculators...................      75,081      74,084
                                                 -----------------------
    Total.......................................     696,302     612,789
------------------------------------------------------------------------

    Clearly, the benefits associated with a more cost effective program
will justify the additional costs associated with the program revisions
and initial training focused on the exceptions introduced by the rule.
The benefits associated with the allowance for use of cameras and
calculators will equal or exceed the costs associated with carrying and
using these devices in accordance with this regulation. Given that this
is not a mandatory requirement, but rather a permissive one, cameras
and calculators will only be used to the extent that perceived benefits
exceed perceived costs. The benefits of seeking FRA approval for use of
railroad-supplied electronic devices for taking photographs and videos
will be the avoidance of unwarranted use of such devices, which would
equal or exceed the nominal costs associated with meeting this
requirement.

B. Regulatory Flexibility Act and Executive Order 13272

    To ensure potential impacts of rules on small entities are properly
considered, FRA developed this rule in accordance with Executive Order
13272 (``Proper Consideration of Small Entities in Agency Rulemaking'')
and DOT's procedures and policies to promote compliance with the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
    The Regulatory Flexibility Act requires agencies to review
regulations to assess their impact on small entities. An agency must
conduct a regulatory flexibility analysis unless it determines and
certifies that a rule is not expected to have a significant impact on a
substantial number of small entities.
    As discussed in earlier sections of this preamble, FRA has
discovered numerous examples proving the danger of distracting
electronic devices. This rulemaking is intended to limit distractions
caused by the use of cellular telephones and other electronic devices
in an effort to improve railroad safety and prevent incidents where
loss of human life, injuries, and property damage may have been
attributable to distraction by these devices. In 2008, FRA issued
Emergency Order No. 26 restricting the on-duty use of cellular
telephones and other electronic devices. This FRA action was in part a
response to the September 12, 2008, Chatsworth accident, which resulted
in 25 deaths, numerous injuries, and more than $7 million in damages.
The BLET and the UTU filed a Petition for Review of that Emergency
Order, citing some valid concerns. FRA then issued an NPRM on May 18,
2010, in which FRA proposed to codify most of the requirements of the
Order with some modifications to accommodate changes that had been
previously recommended by a Petition for Review of that Order as well
as a number of amendments that FRA believed appropriate. FRA reviewed
and responded to comments on its NPRM in this preamble. With this rule,
which is slightly different from the NPRM version, as discussed above,
FRA is finalizing the codification of its restrictions on the unsafe
usage of electronic devices by railroad operating employees.
    FRA is certifying that this rule will result in ``no significant
economic impact on a substantial number of small entities.'' The
following section explains the reasons for this certification.
1. Description of Regulated Entities and Impacts
    The ``universe'' of the entities under consideration includes only
those small entities that can reasonably be expected to be directly
affected by the provisions of this rule. In this case, the ``universe''
comprises solely small railroads.
    ``Small entity'' is defined in 5 U.S.C. 601. Section 601(3) defines
a ``small entity'' as having the same meaning as ``small business
concern'' under section 3 of the Small Business Act. This includes any
small business concern that is independently owned and operated, and is
not dominant in its field of operation. Section 601(4) likewise
includes within the definition of ``small entities'' not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their fields of operation. Additionally, 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 classify as a ``small
entity'' is 1,500 employees for ``Line-Haul Operating'' railroads, and
500 employees for ``Short-Line Operating'' railroads.\15\
---------------------------------------------------------------------------

    \15\ ``Table of Size Standards,'' U.S. Small Business
Administration, January 31, 1996, 13 CFR Part 121. See also NAICS
Codes 482111 and 482112.
---------------------------------------------------------------------------

    Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to the authority provided to it by SBA, FRA has
published a final policy that formally establishes small entities as
railroads that meet the line haulage revenue requirements of a Class
III railroad.\16\ Currently, the revenue requirement is $20 million or
less in annual operating revenue, adjusted annually for inflation
($32,113,449 for 2008). This threshold is based on the Surface
Transportation Board's (STB) threshold of a Class III railroad carrier,
which is adjusted by applying the railroad revenue deflator
adjustment.\17\

FRA is using the STB's threshold in its definition of ``small
entities'' for this rule.
---------------------------------------------------------------------------

    \16\ See 68 FR 24891 (May 9, 2003).
    \17\ For further information on the calculation of the specific
dollar limit, please see 49 CFR Part 1201.
---------------------------------------------------------------------------

    Approximately 700 railroads meet the criteria for small entities
and report operational data to FRA. FRA is using this as our estimate
of the universe of small entities that could be directly impacted by
this rule. Many of these railroads rely on cell phones for train
operations.
    Like EO 26, this rule contains exceptions that would allow
railroads that have fewer than 400,000 annual employee hours and that
rely on wireless communication devices for certain train operations to
continue to do so, with the same restriction that such usage be limited
to performing the employees' railroad duties. The primary benefactors
of this flexibility are small railroads. FRA is clarifying that the
exception in the Order for railroad operating employees to use
railroad-supplied or railroad-authorized electronic devices to conduct
train or switching operations ``under conditions authorized under 49
CFR Part 220'' was intended to accommodate small railroad operations.
The locomotives of the trains exempt from the requirement to have a
working radio on the lead locomotive do not operate at high speeds, do
not handle regular passenger traffic, are only permitted to operate
over joint territory in specific low-speed circumstances, and must have
working wireless communications aboard the controlling locomotive of
trains containing placarded hazardous material loads.
    This rule contains additional flexibility that would reduce the
impact relative to EO 26. With this rule, FRA will: (1) Allow
deadheading railroad operating employees who are not in the cab of a
controlling locomotive to use electronic devices if that use does not
interfere with an employee's personal safety or performance of safety-
related duties; (2) allow use of cameras to document safety hazards or
violations, except in the cab of the controlling locomotive of a moving
train; and (3) exclude standalone calculators from all restrictions
within this subpart as long as the calculator is used for an authorized
business purpose and does not interfere with the performance of any
employee's safety-related duties. In addition, FRA is creating an
exception for medical devices to encompass both devices that enhance an
ability to perform safety-related tasks, such as a hearing aid, and
other devices that protect an employee's health and well-being.
    In general, small railroad costs associated with compliance with EO
26 would continue to accrue under FRA's rule. Additional burden to such
railroads would come from the requirement to provide instruction to its
operating employees on the substance of the regulation as well as the
need to update their written programs to qualify its operating
employees for compliance with operating rules implementing the new
requirements. FRA anticipates that this instruction will be achieved
through means such as distribution of written materials to employees,
job briefings by supervisors or roving instructors, and question-and-
answer services. FRA estimates that the time cost of such instruction
will come to about 15 minutes per employee in the first year of the
rule. Approximately 91,000 train and engine employees will be impacted,
and about 20 percent of these will be small railroad employees.
Assuming a cost per hour of employee instructed of $43.37, the total
cost of this additional instruction will be approximately $200,000 for
small railroads or an average of $300 per railroad. Revision of
programs is not expected to entail more than 1 labor hour per railroad.
These two costs--that of additional instruction and that of revising
programs--will likely not significantly burden any small railroads.
    Additional railroad costs transferred from EO 26 include the costs
associated with performing operational tests and conducting periodic
instruction. Given that operational tests and instruction associated
with this regulation will be conducted with other required operational
testing and instruction, the additional annual cost will total about as
much as the cost in the first year for instruction and program
revision. Again, this cost will likely not significantly burden small
railroads.
    Because this rule will apply to all small railroads, FRA has
concluded that a substantial number of small entities will be impacted.
However, the overall impact on small railroads is not expected to be
significant. FRA believes that the costs to small railroads associated
with this rule are not significant and are very similar to those
currently incurred under EO 26.
    In the NPRM, FRA certified that the proposal would likely not
result in a significant economic impact on a substantial number of
small entities and requested comments on all aspects of its supporting
analysis. No comments were received.
2. Certification
    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 605(b), the FRA Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. Although a substantial number of small railroads could be
affected by the rule, they will not be significantly impacted.

C. Paperwork Reduction Act

    The information collection requirements in this final rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.
The sections that contain the new and current information collection
requirements, and the estimated time to fulfill each requirement are as
follows:

----------------------------------------------------------------------------------------------------------------
                                      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
----------------------------------------------------------------------------------------------------------------
220.302--Operational Rules That   728 Railroads.....  Burden Incl. Under  Burden Incl. Under  Burden Incl. Under
 Comply with this Subpart.                             OMB No. 2130-0035.  OMB No. 2130-0035.  OMB No. 2130-
                                                                                0035.
    --Revision of RR Operational
     Rules in Part 217 to Comply
     with this Supart.
220.307--Use of Railroad-         728 Railroads.....  728 amended RR Op.  1 hour............  728 hours.
 Supplied Electronic Device As                         codes, 50
 Specified in Writing.                                 documents.
    --Written documents           728 Railroads.....                      1 hour............  50 hours.
     submitted to FRA specifying
     authorized business purpose
     for taking photo/video w/
     railroad-supplied
     electronic device.
    --Engineer and Train Crew     91,000 hours......  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.                                          OMB 2130-  OMB 2130-  OMB 2130-
                                                       0579.               0579.               0579.
    --Revision of RR Program of
     Operational Tests and
     Inspections under Part 217
     to Include This Subpart.
----------------------------------------------------------------------------------------------------------------

    All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. For information or a copy of the
paperwork package submitted to OMB, contact Robert Brogan at 202-493-
6292 or Ms. Kimberly Toone at<PHONE_NUMBER> or via e-mail at the
following addresses<EMAIL_ADDRESS><EMAIL_ADDRESS>    Organizations and individuals desiring to submit comments on the
collection of information requirements should direct them to the Office
of Management and Budget, 725 17th St., NW., Washington, DC 20590;
Attention: FRA OMB Desk Officer. Comments may also be sent via e-mail
to the Office of Management and Budget at the following address: oira_
<EMAIL_ADDRESS>    OMB is required to make a decision concerning the collection of
information requirements contained in this final rule between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication.
    FRA is not authorized to impose a penalty on persons for violating
information collection requirements which do not display a current OMB
control number, if required. FRA intends to obtain current OMB control
numbers for any new information collection requirements resulting from
this rulemaking action prior to the effective date of the final rule.
The OMB control number, when assigned, will be announced by separate
notice in the Federal Register.

D. Environmental Impact

    FRA has evaluated this final rule in accordance with its
``Procedures for Considering Environmental Impacts'' (FRA's Procedures)
(64 FR 28545, May 26, 1999) as required by the National Environmental
Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes,
Executive Orders, and related regulatory requirements. FRA has
determined that this action is not a major FRA action (requiring the
preparation of an environmental impact statement or environmental
assessment) because it is categorically excluded from detailed
environmental review pursuant to section 4(c)(20) of FRA's Procedures.
64 FR 28547, May 26, 1999. In accordance with section 4(c) and (e) of
FRA's Procedures, the agency has further concluded that no
extraordinary circumstances exist with respect to this final rule that
triggered the need for a more detailed environmental review. As a
result, FRA finds that this final rule is not a major Federal action
significantly affecting the quality of the human environment.

E. Federalism Implications

    Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, the agency consults with State and local governments, or
the agency consults with State and local government officials early in
the process of developing the regulation. Where a

regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
    This final rule has been analyzed in accordance with the principles
and criteria contained in Executive Order 13132. FRA has determined
that the final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, nor on the distribution of power and responsibilities among the
various levels of government. In addition, FRA has determined that the
final rule will not impose substantial direct compliance costs on State
and local governments. Therefore, the consultation and funding
requirements of Executive Order 13132 do not apply.
    However, this final rule could have preemptive effect by operation
of law under certain provisions of the Federal railroad safety
statutes, specifically the former Federal Railroad Safety Act of 1970
(former FRSA), repealed and recodified at 49 U.S.C 20106, and the
former Locomotive-Boiler Inspection Act (former LBIA), repealed and
recodified at 49 U.S.C. 20701-20703. See Pub. L. 103-272. The former
FRSA provides that States may not adopt or continue in effect any law,
regulation, or order related to railroad safety or security that covers
the subject matter of a regulation prescribed or order issued by the
Secretary of Transportation (with respect to railroad safety matters)
or the Secretary of Homeland Security (with respect to railroad
security matters), except when the State law, regulation, or order
qualifies under the ``local safety or security hazard'' exception to
Sec.  20106. Moreover, the former LBIA has been interpreted by the
Supreme Court as preempting the entire field of locomotive safety. See
Napier v. Atlantic Coast R.R., 272 U.S. 605, 611; 47 S.Ct. 207, 209
(1926).
    In sum, FRA has analyzed this final rule in accordance with the
principles and criteria contained in Executive Order 13132. As
explained above, FRA has determined that this final rule has no
federalism implications, other than the possible preemption of State
laws under the former FRSA and the former LBIA. Accordingly, FRA has
determined that preparation of a federalism summary impact statement
for this final rule is not required.

F. Unfunded Mandates Reform Act of 1995

    Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless
otherwise prohibited by law, assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private sector
(other than to the extent that such regulations incorporate
requirements specifically set forth in law).'' Section 202 of the Act
(2 U.S.C. 1532) further requires that ``before promulgating any general
notice of proposed rulemaking that is likely to result in the
promulgation of any rule that includes any Federal mandate that may
result in the expenditure by State, local, and tribal governments, in
the aggregate, or by the private sector, of $140,800,000 or more in any
1 year, and before promulgating any final rule for which a general
notice of proposed rulemaking was published, the agency shall prepare a
written statement'' detailing the effect on State, local, and tribal
governments and the private sector. This final rule will not result in
the expenditure, in the aggregate, of $140,800,000 or more in any one
year, and thus preparation of such a statement is not required.

G. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' See
66 FR 28355 (May 22, 2001). Under the Executive Order a ``significant
energy action'' is defined as any action by an agency that promulgates
or is expected to lead to the promulgation of a final rule or
regulation, including notices of inquiry, advance notices of proposed
rulemaking, and notices of proposed rulemaking: (1)(i) That is a
significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse
effect on the supply, distribution, or use of energy; or (2) that is
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action. FRA has evaluated
this final rule in accordance with Executive Order 13211. FRA has
determined that this final rule is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
Consequently, FRA has determined that this final rule is not a
``significant energy action'' within the meaning of the Executive
Order.

H. Privacy Act Statement

    Anyone is able to search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc). You may review DOT's
complete Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477-78), or you may visit http://
DocketsInfo.dot.gov.

I. Executive Order 12988 (Civil Justice Reform)

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

List of Subjects in 49 CFR Part 220

    Communications, Penalties, Railroads, Railroad safety.

The Rule

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In consideration of the foregoing, FRA amends chapter II, subtitle B of
title 49, Code of Federal Regulations, as follows:

PART 220--[AMENDED]

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1. The authority citation for Part 220 is revised to read as follows:

    Authority:  49 U.S.C. 20102-20103, 20103, note, 20107, 21301-
21302, 20701-20703, 21304, 21311; 28 U.S.C. 2461, note; and 49 CFR
1.49.

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2. Section 220.1 is revised 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.

Sec.  220.2  [Removed and Reserved]

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3. Section 220.2 is removed and reserved.

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4. Section 220.5 is amended by revising the introductory text; adding
definitions in alphabetical order for ``Associate Administrator for
Railroad Safety/Chief Safety Officer,'' ``Authorized business
purpose,'' ``Earpiece,'' ``Electronic device,'' ``Fouling a track,''
``FRA,'' ``In deadhead status,'' ``Medical device,'' ``Personal
electronic device,'' ``Railroad operating employee,'' ``Railroad-
supplied electronic device,'' and ``Switching operation''; and revising
the definition of ``Train'' to read as follows:

Sec.  220.5  Definitions.

    As used in this part, the term--
* * * * *

    Associate Administrator for Railroad Safety/Chief Safety Officer
means either the Associate Administrator for Railroad Safety/Chief
Safety Officer, Federal Railroad Administration, 1200 New Jersey Ave.,
SE., Washington, DC 20590 or that person's delegate.
    Authorized business purpose means a purpose directly related to the
tasks that a crewmember is expected to perform during the current tour
of duty as specified by the railroad in writing.
* * * * *
    Earpiece means a small speaker that is inserted in, or held next
to, the ear for use in transmitting sounds related to an electronic
device.
    Electronic device means an electronic or electrical device used to
conduct oral, written, or visual communication; place or receive a
telephone call; send or read an electronic mail message or text
message; look at pictures; read a book or other written material; play
a game; navigate the Internet; navigate the physical world; play, view,
or listen to a video; play, view, or listen to a television broadcast;
play or listen to a radio broadcast other than a radio broadcast by a
railroad; play or listen to music; execute a computational function;
or, perform any other function that is not necessary for the health or
safety of the person and that entails the risk of distracting the
employee or another railroad operating employee from a safety-related
task. This term does not include--
    (1) Electronic control systems and information displays within the
locomotive cab (whether the displays or systems be fixed or portable)
or on a remote control transmitter necessary to operate a train or
conduct switching operations; or
    (2) A digital watch whose only purpose is as a timepiece.
* * * * *
    Fouling a track means the placement of an individual in such
proximity to a track that the individual could be struck by a moving
train or other on-track equipment, or in any case is within four feet
of the nearest rail.
    FRA means the Federal Railroad Administration.
* * * * *
    In deadhead status means awaiting or in deadhead transport from one
point to another as a result of a railroad-issued verbal or written
directive.
* * * * *
    Medical device means an instrument, apparatus, implement, machine,
contrivance, implant, or other similar or related article (including a
component part), or accessory that is intended for use in the diagnosis
of disease or other conditions, or in the cure, mitigation, treatment,
or prevention of disease or other conditions.
    Personal electronic device means an electronic device that was not
provided to the railroad operating employee by the employing railroad
for a business purpose.
    Railroad operating employee means a person performing duties
subject to--
    (1) An individual engaged in or connected with the movement of a
train, including a hostler, as defined in 49 U.S.C. 21101(5), who is
subject to 49 U.S.C. 21103 effective July 16, 2009;
    (2) A train employee providing commuter rail passenger
transportation or intercity rail passenger transportation as defined in
49 U.S.C. 24102 who, pursuant to 49 U.S.C. 21102(c), is subject to 49
U.S.C. 21103 as it was in effect on October 15, 2008; or
    (3) An individual subject to any Federal Railroad Administration
regulations prescribed pursuant to 49 U.S.C. 21109 governing the hours
of service of train employees.
* * * * *
    Railroad-supplied electronic device means an electronic device
provided to a railroad operating employee by the employing railroad for
an authorized business purpose. A railroad-supplied device will be
considered a personal electronic device when it is being used by the
employee for a purpose other than an authorized business purpose.
* * * * *
    Switching operation means the classification of rail cars according
to commodity or destination; assembling of cars for train movements;
changing the position of cars for purposes of loading, unloading, or
weighing; placing of locomotives and cars for repair or storage; or
moving of rail equipment in connection with work service that does not
constitute a train movement.
* * * * *
    Train, for purposes of subparts A and B of this part, means one or
more locomotives coupled with or without cars, requiring an air brake
test in accordance with 49 CFR part 232 or part 238, except during
switching operations or where the operation is that of classifying and
assembling rail cars within a railroad yard for the purpose of making
or breaking up trains. The term, for purposes of subpart C of this
part, means--
    (1) A single locomotive,
    (2) Multiple locomotives coupled together, or
    (3) One or more locomotives coupled with one or more cars.
* * * * *

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5. Add a new subpart C to part 220 to read as follows:
Subpart C--Electronic Devices
Sec.
Sec.  220.301 Purpose and application.
Sec.  220.302 Operating rules implementing the requirements of this
subpart.
Sec.  220.303 General use of electronic devices.
Sec.  220.305 Use of personal electronic devices.
Sec.  220.307 Use of railroad-supplied electronic devices.
Sec.  220.309 Permitted uses; exceptions to other restrictions.
Sec.  220.311 Railroad operating employees in deadhead status.
Sec.  220.313 Instruction.
Sec.  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 of this part.
    (c) The restrictions of this subpart C do not apply--
    (1) To the working radio; or
    (2) When a working radio failure occurs and an electronic device is
used in accordance with railroad rules.

Sec.  220.302  Operating rules implementing the requirements of this
subpart.

    Each railroad shall adopt operating rules that implement the
requirements of this subpart.

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 railroad
operating employee's performance of safety-related duties. No
individual in the cab of a controlling locomotive shall use an
electronic device if that use would interfere with a railroad operating
employee's performance of safety-related duties.

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. An authorized business
purpose involving the taking of a photograph or video must be approved
by FRA. A railroad subject to this subpart must submit to FRA's
Associate Administrator for Railroad Safety/Chief Safety Officer a
document specifying in writing the authorized business purpose(s)
involving the taking of a photograph or video for which a railroad-
supplied electronic device may be used by the carrier's railroad
operating employees.
    (b) Use by locomotive engineers operating controls. A locomotive
engineer operating the controls of a train shall not use a railroad-
supplied electronic device--
    (1) When on a moving train;
    (2) When any member of the crew is--
    (i) On the ground, or
    (ii) Riding rolling equipment during a switching operation; or
    (3) When any railroad employee is assisting in preparation of the
train for movement.
    (c) Use in freight and passenger locomotive cabs generally. In
addition to the restrictions on locomotive engineers described in
paragraph (b) of this section, a railroad operating employee who is not
in deadhead status shall not use a railroad-supplied electronic device
in the cab of a controlling locomotive unless--
    (1) A safety briefing that includes all crewmembers is held; and
    (2) All crewmembers agree that it is safe to use the device.
    (d) Use outside freight locomotive cabs. A freight train crewmember
who is not in deadhead status may use a railroad-supplied electronic
device outside the cab of a controlling freight locomotive only if all
of the following conditions are met:
    (1) The crewmember is not fouling a track; and
    (2) All crewmembers agree it is safe to use the device.

Sec.  220.309  Permitted uses; exceptions to other restrictions.

    Notwithstanding any other limitations in this subpart, a railroad
operating employee may use the following, if that use does not
interfere with any employee's performance of 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 of a safety hazard or
a violation of a rail safety law, regulation, order, or standard,
provided that--
    (1) A camera that is part of a cell phone or other similar multi-
functional electronic device is not included in this exception unless
it is a railroad-supplied device and is used for an authorized business
purpose;
    (2) The camera, unless otherwise permitted, is turned off
immediately after the documentation has been made; and
    (3) If the camera is used in the cab of a moving train, the use is
only by a crewmember other than the locomotive engineer.
    (d) A stand-alone calculator if used for an authorized business
purpose.
    (e) A medical device that is consistent with the railroad's
standards for medical fitness for duty.
    (f) A wireless communication device to conduct train or switching
operations if the railroad operating employee is part of a crew
assigned to a train that is exempt under Sec.  220.9(b) from the
requirement of a working radio when the employing railroad has fewer
than 400,000 annual employee work hours.

Sec.  220.311  Railroad operating employees in deadhead status.

    (a) Notwithstanding any other restrictions in this subpart, a
railroad operating employee who is in deadhead status and not inside
the cab of a controlling locomotive may use an electronic device only
if the employee is not using the device in such a way that interferes
with any railroad operating employee's personal safety or performance
of safety-related duties.
    (b) A railroad operating employee who is in deadhead status and
located inside the cab of a controlling locomotive must have each
electronic device turned off with any earpiece removed from the ear--
    (1) When on a moving train;
    (2) When any member of the crew is--
    (i) On the ground, or
    (ii) Riding rolling equipment during a switching operation; or
    (3) When any railroad employee is assisting in preparation of the
train for movement.

Sec.  220.313  Instruction.

    (a) Program. Beginning December 27, 2010, each railroad shall
maintain a written program of instruction and examination of each
railroad operating employee and each supervisor of the railroad
operating employee on the meaning and application of the railroad's
operating rules implementing the requirements of this subpart if these
requirements are pertinent to the employee's duties. If all
requirements of this subpart are satisfied, a railroad may consolidate
any portion of the instruction or examination required by this subpart
with the program of instruction required under Sec.  217.11 of this
chapter.
    (1) The written program of instruction and examination shall
address the requirements of this subpart, as well as consequences of
noncompliance.
    (2) The written program of instruction and examination shall
include, but is not limited to, an explanation of the following:
    (i) When a railroad operating employee must have personal
electronic devices turned off with the earpiece removed from the ear as
required by this subpart.
    (ii) If a railroad supplies an electronic device to its railroad
operating employees, when a railroad operating employee may use such a
device. The employee must be instructed on what constitutes an
authorized business purpose.
    (iii) The potential penalties and other consequences of committing
a violation of this subpart, both those imposed by the Federal Railroad
Administration (FRA) and those imposed by the railroad, as well as any
distinction between the requirements of this subpart and any more
stringent requirements imposed by the railroad and the related
distinction between the two sets of potential consequences.
    (b) Implementation schedule. Each employee performing duties
subject to the requirements in this subpart shall be initially
instructed prior to March 28, 2011.
    (1) Beginning March 28, 2011, no employee shall perform work
requiring compliance with the operating rules implementing the
requirements of this subpart unless the employee has been instructed on
requirements of this subpart within the previous three years.
    (2) The records of successful completion of instruction and
examination required by this section

shall document the instruction of each employee under this subpart.
    (c) Records. Written records documenting successful completion of
instruction and examination of each employee and of his or her
supervisors shall be made and shall be retained at the railroad's
system headquarters and at the division headquarters for each division
where the employee is assigned for three calendar years after the end
of the calendar year to which they relate and made available to
representatives of FRA for inspection and copying during normal
business hours. Each railroad to which this part applies is authorized
to retain a program, or any records maintained to prove compliance with
such a program, by electronic recordkeeping in accordance with
Sec. Sec.  217.9(g) and 217.11(c) of this chapter.
    (d) Approval process. Upon review of the program of instruction and
examination required by this section, the Associate Administrator for
Railroad Safety/Chief Safety Officer may, for cause stated, disapprove
the program. Notification of such disapproval shall be made in writing
and specify the basis for the disapproval.
    (1) If the Associate Administrator for Railroad Safety/Chief Safety
Officer disapproves the program, the railroad has 35 days from the date
of the written notification of such disapproval to--
    (i) Amend its program and submit it to the Associate Administrator
for Railroad Safety/Chief Safety Officer for approval; or
    (ii) Provide a written response in support of the program to the
Associate Administrator for Railroad Safety/Chief Safety Officer, who
informs the railroad of FRA's final decision in writing.
    (2) A failure to submit the program with the necessary revisions to
the Associate Administrator for Railroad Safety/Chief Safety Officer in
accordance with this paragraph is considered a failure to implement a
program under this subpart.

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 railroad operating employee while the
railroad officer, manager, or supervisor knows or should have known
that--
    (1) The train to which the employee is assigned is moving;
    (2) The employee is--
    (i) On the ground;
    (ii) Riding rolling equipment during switching operations; or
    (iii) Assisting in preparation of the train to which the employee
is assigned for movement.

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6. Appendix C to part 220 is amended by adding footnote 2 to the first
column heading ``Section,'' and adding an entry for subpart C to read
as follows:

         Appendix C to Part 220--Schedule of Civil Penalties \1\
------------------------------------------------------------------------
                                                                Willful
                    Section \2\                     Violation  violation
------------------------------------------------------------------------

                                * * * * *
           Subpart C--Electronic Devices
220.302 Operating rules...........................     9,500     17,000
220.303 General; interfering with safety-related       9,500     17,000
 duties...........................................
220.305 Personal electronic device turned on while     5,500     10,000
 prohibited.......................................
     (a)-(c) Personal device in use while              9,500     17,000
     prohibited...................................
220.307 Railroad-supplied device turned on while       5,500     10,000
 prohibited.......................................
    (a) Use not authorized by railroad in writing.     9,500     17,000
     (b)-(d) Railroad-supplied devices in use          9,500     17,000
     while prohibited.............................
220.311 Railroad operating employees in deadhead
 status:
     (a)..........................................     9,500     17,000
    (b) Devices turned on while prohibited; or....     5,500     10,000
    device in use while prohibited................     9,500     17,000
220.313 Program of instruction:
     (a)-(d)......................................     9,500     17,000
220.315 Operational tests and inspections:
     (a)-(b)......................................     9,500     17,000
------------------------------------------------------------------------
\1\ A penalty may be assessed against an individual only for a willful
  violation. The Administrator reserves the right to assess a penalty of
  up to $100,000 for any violation where circumstances warrant. See 49
  CFR part 209, appendix A.
\2\ The penalty schedule uses section numbers from 49 CFR part 220. If
  more than one item is listed as a type of violation of a given
  section, each item is also designated by a ``penalty code,'' which is
  used to facilitate assessment of civil penalties, and which may or may
  not correspond to any subsection designation(s). For convenience,
  penalty citations will cite the CFR section and the penalty code, if
  any. FRA reserves the right, should litigation become necessary, to
  substitute in its complaint the CFR citation in place of the combined
  CFR and penalty code citation, should they differ.

    Issued in Washington, DC, on September 17, 2010.
Karen J. Hedlund,
Chief Counsel, Federal Railroad Administration.
[FR Doc. 2010-23916 Filed 9-21-10; 4:15 pm]
BILLING CODE 4910-06-P