7 October 2008
[Federal Register: October 7, 2008 (Volume 73, Number 195)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[FRA Emergency Order No. 26, Notice No. 1]
Emergency Order To Restrict On-Duty Railroad Operating Employees'
Use of Cellular Telephones and Other Distracting Electronic and
SUMMARY: This is an emergency order to restrict on-duty railroad
operating employees from improperly using cellular telephones and other
distracting electronic and electrical devices.
FOR FURTHER INFORMATION CONTACT: Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of Safety Assurance and
Compliance, FRA, 1200 New Jersey Avenue, SE., RRS-11, Mail Stop 25,
Washington, DC 20590 (telephone 202-493-6255); or Ann M. Landis, Trial
Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue, SE.,
RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6064).
The Federal Railroad Administration (FRA) of the United States
Department of Transportation (DOT) has determined that public safety
compels issuance of this emergency order restricting the improper use
by railroad operating employees of certain electronic and electrical
devices. Based on the historical record, rail passenger transportation
in the United States is an extremely safe mode of transportation.
However, recent incidents, including one that has claimed 25 lives,
have caused DOT and FRA to have very serious concerns about the safety
of the improper usage of cellular telephones (cell phones) and other
electronic and electrical devices.
Authority to enforce Federal railroad safety laws has been
delegated by the Secretary of Transportation to the Federal Railroad
Administrator. 49 CFR 1.49. Railroads are subject to FRA's safety
jurisdiction under the Federal railroad safety laws, 49 U.S.C. 20102,
20103. FRA is authorized to issue emergency orders where an unsafe
condition or practice ``causes an emergency situation involving a
hazard of death or personal injury.'' 49 U.S.C. 20104. These orders may
impose such ``restrictions and prohibitions * * * that may be necessary
to abate the situation.'' (Ibid.)
Although most railroads have rules or procedures in place that
prohibit or restrict the use of electronic devices such as cell phones
and personal digital assistants (PDAs), these company rules and
procedures have not proven effective in preventing serious train
accidents caused by the unsafe use of such devices. That became clear
only very recently in a decade-long course of FRA regulatory activity.
When FRA amended 49 CFR Part 220-Radio Standards and Procedures on
January 4, 1999, it was re-titled to ``Railroad Communications,'' to
reflect its coverage of other means of wireless communications such as
cell phones, data radio terminals, and other forms of wireless
communications used to convey emergency and need-to-know information.
The revisions to Part 220 were the result of recommendations by the
Railroad Safety Advisory Committee's (RSAC) Working Group, which
consisted of a diverse group of subject matter experts representing a
wide array of railroad industry stakeholders.
In its deliberations, the Working Group examined extensive safety
data, discussed how to improve compliance with existing Federal
regulations on radio standards and procedures, and considered whether
to mandate radios and other forms of wireless communications to convey
emergency and need-to-know information. FRA sought comments on whether
non-radio wireless communications procedures paralleling the radio
procedures in Part 220 should be adopted for cell phones and other
wireless devices. Particularly, FRA wanted to know whether on-radio
wireless communications had the same opportunities for misunderstanding
as radio transmissions and how such procedures would be enforced. After
reviewing the comments, FRA decided, at that time, not to promulgate
non-radio wireless communications procedures, based primarily on the
fact that the Working Group did not consider in depth how to ensure the
accuracy and completeness of non-radio wireless communications.
Accordingly, in the final rule, FRA addressed only the testing and
failure of non-radio wireless communications equipment (see 49 CFR
220.37 and 220.38, respectively).
However, FRA emphasized in the preamble to the final rule that the
procedures in section 220.61 (radio transmission of mandatory
directives) should be followed even when a cell phone or other form of
wireless communication is used to transmit mandatory directives. FRA
stated at the time that it reserved the right to revisit the issue of
non-radio wireless communications procedures, if necessary.
On March 17, 2004, FRA met with the National Transportation Safety
Board (NTSB or Safety Board) at what they termed a ``Safety With A
Team'' (SWAT) meeting. As the result of Safety Recommendation R-03-1,
FRA told the Safety Board that it had instructed its inspectors to
increase its monitoring of unauthorized use of cell phones, but that
enforcement of any regulation in this area would be challenging. FRA
stated that it was in the process of gathering copies of enhanced
railroad operating rules that strengthened the restrictions railroads
placed on the use of cell phones and that it would review all of these
rules and procedures governing cell phone use to look for gaps, and
consider options, to include the issuance of a FRA Safety Advisory.
FRA also stated to the Board at the SWAT meeting that it would
discuss the subject of cell phone usage with members of the full RSAC,
and determine what actions, if any, FRA
should pursue in relation to this safety recommendation. At the full
RSAC meeting conducted on April 27, 2004, FRA asked that the members of
all organizations come to the next full RSAC meeting prepared to
discuss what their current instructions were for cell phone use,
whether they need to be improved, and whether this is a subject that
should be tasked to a new RSAC Working Group. At this time, FRA
explained to the Board that this new technology (cell phones and other
wireless forms of communication) aids in reducing overcrowding of radio
frequencies and that FRA wants to take advantage of the benefits that
cell phones provide to the railroad industry.
Also at this time, FRA contacted the General Code of Operating
Rules (GCOR) Committee, concerning the enhancement of GCOR Rule 1.10
(use of electronic devices) in the next edition of the GCOR, due to be
published on April 3, 2005. The GCOR Committee, however, decided not to
amend the rule at that time. Rather, their position was that each
member road should address the cell phone issue in its individual
In a letter to the NTSB, dated May 26, 2004, FRA subsequently
provided copies of all relevant railroad operating rules and procedures
relating to the use of cell phones and other wireless communication
devices. FRA's initial review of this material indicated that, while
there is some disparity with respect to the detail of prohibitions
concerning cell phone use, all railroads canvassed did have a rule that
prevented and/or limited cell phone use.
In the above-referenced letter to the Safety Board, FRA recounted
its initial response to safety recommendation R-03-01, that it had
changed the title of Part 220 to ``Railroad Communications'' to reflect
coverage of other means of wireless communications such as cell phones,
data radio terminals, and other forms of wireless communications used
to convey emergency and need-to-know information. FRA also reminded the
Board that the revisions to Part 220 that were effective in 1999 were
the result of a recommendation by the full RSAC. Further, FRA
acknowledged that there are many distractions in the course of day-to-
day train operations that could momentarily divert a crewmember's
attention, and that cell phones were just one of those mentioned. FRA
still believed, at that time, that the operating rules of the railroad
adequately addressed these situations and that responsibility for
compliance rested with company officers and supervisors. Therefore, FRA
concluded that the railroads' enforcement of their operating rules
governing cell phone use was sufficient to address the issue without
the intrusiveness of Federal intervention.
In a letter from NTSB to FRA, dated August 19, 2004, the Board
classified safety Recommendation R-03-1 as ``Open-Acceptable
At the full RSAC meeting on September 22, 2004, members came
prepared to discuss the issue of cell phone use, whether their current
instructions were for cell phone use, whether they needed to be
improved, and whether this was a subject that should be tasked to a new
RSAC Working Group. This is an issue that appears in all forms of
transportation. FRA pointed out that the proliferation of cell phone
technology has now made the devices a necessity, also noting, though,
that there are many examples of how the use of these devices by
railroad employees in locomotive cabs of moving trains can be
FRA still believed, however, that Federal intervention in this area
was not warranted at that time. FRA also acknowledged at a previous
full RSAC meeting that, by the same token, there are many other
distractions in the course of normal everyday train operations that
could divert a crewmember's attention, for which there are likewise no
Federal regulations, pointing out that some of these are far more
invasive than cell phone use.
The RSAC members present at the meeting unanimously restated that
virtually all of them restrict cell phone use in one form or another,
but also acknowledge that the use of this, and related devices, allows
more effective communication among employees, and that many railroads
even provide cell phones to their employees. It was also mentioned that
redundant communication devices are now required by Federal regulation
(Part 220) and that cell phones are one acceptable example. The
consensus of those members present was that it was a complex issue and
that they were not yet prepared to consider a Federal regulation in
this area. Notwithstanding, while FRA had not yet decided what course
of action it would follow, FRA agreed to reexamine current railroad
operating rules and instructions on cell phone use and develop from
that review what ``best practices'' emerge. FRA would then circulate a
``best practices'' document among RSAC members for comments before
forwarding it on to the NTSB.
In a letter to NTSB, dated August 18, 2006, FRA provided the Safety
Board with an update on the status of its recommendation R-03-01 with
respect to cell phone use in the railroad industry. FRA noted that NTSB
had renewed its interest in the use of cell phones by railroad
employees as the result of a collision between two BNSF freight trains
near Gunter, Texas, on May 19, 2004. NTSB had determined that 25 calls
were made by crewmembers from both trains during the trip and up to the
time of the collision, and that 22 of those calls were of a personal
nature. FRA's update indicated to the Board that it had not yet decided
what final course of action it would follow, but that, with the
assistance and cooperation of the railroad's operating rules
departments, it was still developing a ``best practices'' document. It
was subsequently decided to task the RSAC Operating Rules Working Group
with developing this document.
At a meeting of the Operating Rules Working Group on September 27-
28, 2007, held in Fort Worth, Texas, also attended by a representative
of the NTSB, it was discussed and agreed that the railroad industry,
with a representative to facilitate the process from the FRA, a ``best
practices'' operating rule would be developed, and that if the industry
as a whole could adopt and enforce it, that approach would be
considered by the Board in lieu of Federal intervention.
At the next meeting of the GCOR Committee, on November 14-15, 2007,
also attended by rules officers from NORAC and other major eastern
railroads not signatory to the GCOR, and the ASLRRA, and facilitated by
a representative from FRA, just such a ``best practices'' operating
rule was developed and agreed upon by the GCOR Committee, the ASLRRA,
NORAC, and other railroads present.
At a meeting of the Operating Rules Working Group held in
Washington, DC, on January 17-18, 2008, a draft of the ``best
practices'' operating rule that was developed by the industry, was
shared with the Working Group and discussed at length. It was decided
at that meeting that while the proposed rule was acceptable, it needed
further enhancements. The suggestion was made that FRA develop a Safety
Advisory which would contain these additional enhancements, some of
which were proposed at the meeting. FRA accepted this task and
subsequently developed a proposed Safety Advisory on the use of cell
phones and similar wireless communications devices by railroad
At a meeting of the Operating Rules Working Group held in
Texas, on May 21-22, 2008, the proposed Safety Advisory on cell phone
use was discussed and the document was further refined and enhanced to
include many valuable suggestions. A final draft was then prepared for
discussion at the next Working Group meeting.
In the meantime, the course of events recited below was developing
into the emergency situation FRA now addresses, persuading FRA to
change its view of the necessity of immediate action.
At a meeting of the Operating Rules Working Group held in Chicago,
Illinois, on September 25-26, 2008, a draft of FRA's proposed Emergency
Order on the use of cell phones, and other forms of wireless
communication, was discussed and much valuable input received.
Fatal Railroad Accidents During 2008 Involving Cell Phone Use That Are
Currently Under Investigation by National Transportation Safety Board,
FRA, or Both
(1) The National Transportation Safety Board (NTSB or Safety Board)
and the FRA are currently investigating the September 12, 2008 head-on
collision between a Southern California Regional Rail Authority
(Metrolink) commuter train and a Union Pacific Railroad Company (UP)
freight train at Chatsworth, California, which resulted in the deaths
of 25 people, the injury of numerous others, and more than $7,100,500
in damages. Although NTSB has not yet determined the probable cause of
the accident, preliminary information indicates that the locomotive
engineer of the Metrolink commuter train may have passed a stop signal.
NTSB stated that a cell phone owned by the locomotive engineer was
being used to send a text message within 30 seconds of the time of the
(2) On June 8, 2008, a UP brakeman was struck and killed by the
train to which he was assigned. FRA's investigation, which has not yet
been completed, indicates that the brakeman instructed the locomotive
engineer via radio to back the train up and subsequently walked across
the track, into the path of the moving train. Information indicates
that the brakeman was talking on his cell phone at the time of the
Train Collisions Between 2000 and 2006 in Which Cell Phone Use Was
(1) Marshall, Texas. 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,
damages were estimated at $413,194. Both trains had two-person crews.
The striking train had passed a ``Stop and Proceed at Restricted
Speed'' signal and was moving at 20 mph. FRA determined (1) that the
collision was caused by the failure of the locomotive engineer of the
striking train to comply with restricted speed and (2) that the
locomotive engineer of the striking train was engaged in cell phone
conversations immediately prior to the accident.
(2) San Antonio, Texas. On May 27, 2006 an eastward UP freight
train collided head on with a westward UP freight train at San Antonio,
Texas. There were four injuries, and damages were estimated at
$401,779. Both trains had two-person crews. FRA determined that the
collision was caused by the eastward train locomotive engineer's
inattentiveness because he was engaged in a cell phone conversation and
by the conductor's failure to supervise safe operations.
(3) Gunter, Texas. On May 19, 2004, one locomotive engineer died,
and a train conductor suffered serious burns when two BNSF freight
trains collided head on near Gunter, Texas. The southbound train was
traveling approximately 37 mph and the northbound train was traveling
about 40 mph when the collision occurred. The trains were being
operated under track warrant control rules on non-signaled single track
territory. The collision resulted in the derailment of five locomotives
and 28 cars, with damages estimated at $ 2,615,016. Approximately 3,000
gallons of diesel fuel were released from the locomotives, which
resulted in a fire.
The General Code of Operating Rules and the BNSF System General
Order Number 37 dated March 7, 2004, restricted the use of cell phones
and other electronic devices. Cell phones were not to be used by
crewmembers while the train or engine was moving. However, cell phone
use was allowed while the train or engine was stopped, providing that
such use did not interfere with required duties. Safety Board
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. During this time, a total of 25 cell
phone calls were made or received by the five crewmembers on both
trains while the trains were in motion. Three of these calls were
related to railroad business. The southbound engineer made two of the
business-related calls, and the northbound conductor made the third.
The southbound engineer's cell phone record showed activity between
3:12 p.m. and 3:16 p.m. This time period coincides with the time that
track warrant authority was being received by the conductor on the
southbound train. (Track Warrant No. 3583 was made effective at 3:17
p.m.) BNSF track warrant procedures required the receiver (the
conductor on the southbound train in this case) to repeat back verbatim
certain critical portions of the track warrant. In this instance, the
track warrant had to be repeated back to the dispatcher several times
before it was considered correct.
Following the 3:17 p.m. effective time on Track Warrant No. 3583,
the dispatcher asked the engineer on the southbound train to use his
cell phone to call him at the Network Operations Center. The engineer
had to call the dispatcher twice because of poor transmission or
reception during the first call. The first call to the dispatcher was
made at 3:22 p.m., and the second call was made at 4:02 p.m. Both calls
were recorded. The dispatcher asked the engineer to provide additional
assistance to the conductor in future track warrant communications.
Event recorder data indicate that both calls were made while the train
was in motion. The conductor on the northbound train's cell phone
records showed a call to the BNSF work order reporting line 27 at 5:04
p.m. Event recorder data indicate that the train was in motion at that
time. The last cell phone activity for the southbound crew was recorded
at 5:31 p.m. The call lasted about 2 minutes while the train was
stopped. The last cell phone activity for the northbound crew before
the collision was recorded at 5:24 p.m. The call lasted about 3 minutes
while the train was moving. A 911 call was originated from the BNSF
6351 northbound brakeman's cell phone at 5:48 p.m; the accident took
place at approximately 5:46 p.m.
(4) Clarendon, Texas. 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. Both trains had two-member crews, and all
crewmembers jumped from their trains before the impact. The conductor
and engineer of the coal train received critical injuries. The
conductor of the intermodal train received minor injuries; the engineer
of the intermodal train was fatally injured. The collision resulted in
a fire that damaged or destroyed several of the locomotives and other
railroad equipment. The cost of the damages exceeded $8,000,000.
NTSB found that all four crewmembers involved in this accident
had personal cell phones. According to cell phone records obtained by
the Safety Board, the conductor of the coal train used his cell phone
for brief calls before the train departed Amarillo. The cell phone
belonging to the engineer of the coal train was used for two calls
during the morning of the accident. At 8:05 a.m., a 23-minute call
originated from the engineer's cell phone. After the completion of this
call, and after about 16 minutes of non-use, another call originated
from the engineer's phone at 8:44 a.m. This time corresponds to the end
of the last track warrant, which was given to the coal train at 8:43
a.m. This call, which lasted about 10 minutes, was to the same number
as the previous call. The engineer said, and telephone company records
confirm, that the number called was that of a family member. The
engineer said that he could not recall the substance of the telephone
calls that day. He added that he usually called this family member, who
was in failing health, each morning. The coal train passed the east end
of Ashtola Siding, the location at which it should have waited for the
arrival of the intermodal train, at about 8:47 a.m. The engineer said
he did not remember specifically being on the phone at the time his
train passed the east end of Ashtola Siding.
In its investigation of the Clarendon accident, NTSB 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. NTSB
consequently issued recommendation R-03-1 to FRA: ``Promulgate new or
amended regulations that will control the use of cell telephones and
similar wireless communication devices by railroad operating employees
while on duty so that such use does not affect operational safety.''
After the Clarendon accident and as a result of a two additional
collisions, BNSF, on June 18, 2002, issued instructions to operating
employees that specifically prohibited the use of cell phones and
laptop computers while on duty, with certain exceptions. Under these
instructions, locomotive engineers are prohibited from using cell
phones or laptop computers while operating the controls of a
Fatal Train Incidents Between 2000 and 2005 Linked With Cell Phone
(1) Copeville, Texas. On December 21, 2005, a contractor working on
The Kansas City Southern Railway Company's (KCS) property 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. (2)
Gillette, Wyoming. On December 29, 2000, a BNSF freight train operating
on the UP was stopped on a siding at Gillette, Wyoming to allow another
train to pass. The conductor of the stopped train exited the leading
locomotive and crossed over the track immediately in front of the
passing train and was struck and killed. The FRA investigation revealed
the strong possibility that the conductor may have been distracted by
his cell phone use.
Unsafe Behavior Observed or Otherwise Witnessed by FRA Inspectors
During the course of regular inspection and enforcement activities,
FRA railroad safety inspectors have observed railroad employees using
cell phones in an unsafe manner, often in contravention of existing
railroad rules and instructions. The inspectors took action to prevent
an accident from occurring, but did so under FRA's general railroad
safety authority, not pursuant to any Federal order, rule, standard or
The following are examples of the unsafe behavior that FRA
inspectors observed and corrected:
An FRA operating practices specialist observed a
locomotive engineer at the controls of a moving passenger train answer
a cell phone call from his conductor. The conductor asked the
locomotive engineer to order a taxi cab for the crew and the locomotive
engineer placed such a call.
Two FRA operating practices inspectors observed a remote-
control locomotive operator walking across the tracks with his head
down and talking on a cell phone. The inspectors approached him, and he
admitted that the call was not work-related.
An FRA operating practices inspector observed a locomotive
engineer receive a call on a cell phone while operating the train. The
engineer answered the call and told the caller he would return his call
later. When the inspector questioned the engineer about his actions,
the engineer stated that he was a union representative and he needed to
be available to his constituents.
On at least two occasions, an FRA Regional Administrator
received telephone calls from locomotive engineers with concerns about
safety issues. During the course of the telephone calls, the Regional
Administrator heard a train horn and asked the locomotive engineers if
they were operating a train. When they replied in the affirmative, the
Regional Administrator terminated the telephone calls. An FRA
headquarters specialist recently reported having the same experience.
On at least two other occasions, FRA field personnel observed remote-
control locomotive operators talking on a cell phone while operating
the remote control locomotive.
An FRA Deputy Regional Administrator was conducting an
initial pre-employment interview over the telephone with a locomotive
engineer who was applying for an FRA operating practices inspector
position. The deputy regional administrator heard a train horn in a two
long, one short, and one long pattern and asked the candidate if he was
operating a locomotive. The candidate replied that he was, and the
deputy regional administrator terminated the telephone call. The
candidate was not selected.
An FRA chief inspector observed an engineer on a passenger
train use his cell phone to take a call from his conductor who was
trying to find out what channel the engineer was working on. The train
was operating at 5 mph in yard limits.
An FRA hazardous materials inspector observed a remote
control locomotive operator talking on a cell phone while operating the
controls of a remote control locomotive during switching operations.
A hazardous materials inspector observed a locomotive
engineer initiate a phone call to the dispatcher on his personal cell
phone for the purpose of copying a track warrant while operating the
controls of a locomotive. Additionally, the same engineer was observed
initiating a cell phone call to the dispatcher, while at the controls
of a moving locomotive, releasing a track warrant, during a shoving
move with the conductor on the point of the equipment.
FRA inspectors report that they frequently observe cell
phones or PDAs within reach of locomotive engineers operating trains.
If the devices ring, the locomotive engineers rarely answer in the
presence of the FRA inspector, but the circumstances lead a responsible
person to conclude that they would answer if the FRA inspector were not
On at least two occasions, FRA personnel have observed
railroad employees on locomotives watching digital video disc (DVD)
Three days after the head-on collision in Chatsworth, an
FRA operating practices observed a commuter rail engineer on another
railroad answer a cell phone while awaiting a signal to depart the
initial passenger station for his trip. The
locomotive engineer answered the phone after the FRA inspector had
The incidents noted above occurred in various parts of the country,
and involved both freight and passenger trains.
Scientific Research on Cell Phones as a Distraction\1\
\1\ References for this section: Brown, I.D., and Poulton, E.C.
(1961). Measuring the spare mental capacity of car drivers by a
subsidiary task. Ergonomics, 4, 35-40.
Burns, P.C., Parkes, A, Burton, S., Smith, R.K., and Burch, D.
(2002). How dangerous is driving with a mobile phone? Benchmarking
the impairment to alcohol (TRL Report RL547). Berkshire, United
Kingdom: TRL Limited.
Hosking, S., Young, K.L., and Regan, M.A. (2006). The effects of
text messaging on young novice driver performance (Report No. 246).
Victoria, Australia: Monash University Accident Research Centre.
McCartt, A.T., Hellinga, L.A., and Braitman, K.A. (2006). Cell
phones and driving: Review of research. Traffic Injury Prevention,
McEvoy, S.P., Stevenson, M.R., McCartt, A.T., Woodward, M.,
Haworth, C., Palamara, P., and Cercarelli, R. (2005). Role of mobile
phones in motor vehicle crashes resulting in hospital attendance: A
case-crossover study. British Medical Journal, 331, 428-432.
National Transportation Safety Board (2003a). Railroad accident
report. Collision of two Burlington Northern Santa Fe freight trains
near Clarendon, Texas. May 28, 2002 (Report No. PB2003-916301).
Washington, DC: National Transportation Safety Board.
National Transportation Safety Board (2003b). Highway accident
report. Ford Explorer Sport collision with Ford Windstar minivan and
Jeep Grand Cherokee on Interstate 95/495 near Largo, Maryland.
February 1, 2002 (Report No. PB2003-916202). Washington, DC:
National Transportation Safety Board.
National Transportation Safety Board (2007). Highway accident
report. Motorcoach collision with the Alexandria Avenue bridge
overpass, George Washington Memorial Parkway, Alexandria, Virginia.
November 14, 2004 (Report No. PB2007-916201). Washington, DC:
National Transportation Safety Board.
Parkes, A.M., Luke, T., Burns, P.C., and Lansdown, T. (2007).
Conversations in cars: The relative hazards of mobile phones (Report
TRL 664). Crowthorne, England: TRL Limited.
Ranney, T. (2008). Driver distraction: A review of the current
state-of-knowledge (Report No. DOT HS 810 704). Washington, DC: U.S.
Department of Transportation.
Reed, N. and Robbins, R. (2008). The effect of text messaging on
driver behaviour. A simulator study (PPR 367). Berkshire, United
Kingdom: TRL Limited.
Trezise, I., Stoney, E.G., Bishop, B., Eren, J., Harkness, A.,
Langdon, C., and Mulder, T. (2006). Report of the road safety
committee on the inquiry into driver distraction (Report No. 209).
Melbourne, Australia: Road Safety Committee, Parliament of Victoria.
Motor Vehicle Operation
There is considerable scientific evidence that cell phone use, both
for oral conversation and for text messaging, increases the risk of
highway accidents as a result of driver distraction (Brown and Poulton,
1961; Burns, Parkes, Burton, Smith and Burch, 2002; McCartt, Hellinga,
and Braitman, 2006; Parkes, Luke, Burns and Lansdown, 2007; Ranney,
2008; Reid and Robbins, 2008). ``Driver distraction'' is defined by the
Australian Road Safety Board (Trezise, Stoney, Bishop, Eren, Harkness,
Langdon, and Mulder, 2006) as follows:
Driver distraction is the voluntary or involuntary diversion of
attention from the primary driving tasks not related to impairment
(from alcohol, drugs, fatigue, or a medical condition) where the
diversion occurs because the driver is performing an additional task
(or tasks) and temporarily focusing on an object, event, or person
not related to the primary driving tasks. The diversion reduces a
driver's situational awareness, decision making, and/or performance
resulting, in some instances, in a collision or near-miss or
corrective action by the driver and/or other road user.
Use of cell phones (voice communication) while driving increases
reaction times, causes failures to detect hazards, and to have more
variability in lane position. A driver's use of cell phones up to 10
minutes before a crash, or at the time of a collision, was found to be
associated with a fourfold increased likelihood of being involved in a
crash (McCartt et al., 2006; McEvoy, Stevenson, McCartt, Woodward,
Haworth, Palamara, and Cercarelli 2005).
Text messaging has similar effects on driving performance. For
instance, Hosking, Young, and Regan (2006) found that text messaging
caused a 400-percent increase in time looking away from the road as
compared to driving without text messaging. Reed and Robbins (2008)
found increased reaction times, failures to detect hazards, and large
increases in lane position variability. The increased reaction times
observed were greater than that caused by alcohol consumption (to legal
limit) and cannabis. They concluded that increased mental workload,
loss of motor control caused by holding the phone, and constant
shifting of visual gaze resulted in significantly impaired ability to
maintain a safe road position while text messaging.
These research studies are bolstered by two highway accident
investigations conducted by NTSB (NTSB, 2003b, 2007). In 2002, a Ford
Explorer Sport landed on top of a Ford Windstar minivan that was
subsequently hit by a Jeep Cherokee (see NTSB, 2003b). The accident
resulted in five fatalities. NTSB determined that the probable cause of
the collision was ``the Explorer driver's failure to maintain
directional control of her high-profile, short-wheel base vehicle in
the windy conditions due to a combination of inexperience,
unfamiliarity with the vehicle, speed, and distraction caused by the
use of handheld wireless telephone.'' (Emphasis added to original text.
NTSB, 2003b, p. 62). In 2004, the driver of a motorcoach on the George
Washington Memorial Parkway collided with the side and underside of an
overpass while talking on a hands-free cell telephone (see NTSB, 2007).
NTSB determined that the probable cause of this collision ``was the bus
driver's failure to notice and respond to posted low-clearance warning
signs and to the bridge itself due to cognitive distraction resulting
from conversing on a hands-free cellular telephone while driving.''
(NTSB, 2007, p. 33). It should be noted that the research studies cite
increased variability in lane position, which corresponds to the
failure to maintain directional control of the vehicle in the 2002
accident, and failures to detect hazards, which corresponds to the bus
driver's lack of response to the low-clearance warnings.
While there are no research studies of locomotive engineer
distraction and safety performance, we can easily draw parallels
between operating a motor vehicle and operating a train. Failures to
detect hazards in either operating environment would result from the
increase in heads-down time, constant shift of visual gaze and
increased mental workload. In the railroad environment, this could
result in the failure to detect signals, whistle boards, rear end
marking devices, broken rails and other conditions that could cause
derailments or collisions. The increased mental workload and heads-down
time could also degrade situation awareness and result in speeding,
excessive braking, missed radio communications, and poor train
A railroad accident report by NTSB (2003a) confirms the parallels
noted above. As noted above, in 2002, two freight trains had a head-on
collision near Clarendon, Texas. NTSB determined that the probable
cause of this accident was ``the coal train engineer's use of a cell
phone during the time he should have been attending to the requirements
of the track warrant his train was operating under.'' (NTSB, 2003a, p.
28). NTSB's findings noted that the cell phone use probably distracted
the engineer and caused him not to take note of an after-arrival
stipulation in the track warrant that required him to prepare his train
to stop. Again, this is a failure to detect a hazard.
Findings and Order
Based on the evidence recited above, I find that railroad operating
employees are increasingly using cell phones and other electronic and
electrical devices during railroad operations, in violation of railroad
operating rules, in a manner and to an extent that these practices
constitute an emergency situation involving a hazard of death or
personal injury because use of these devices distracts the users'
attention from safety-critical duties. These obviously unsafe practices
reflect the powerful influence of pervasive private use of cell phones
and other electronic and electrical devices; powerful intervention, in
the form of this Emergency Order, is necessary to counteract that
influence and to eliminate this source of extremely dangerous
distraction in the railroad operating environment. I find that the
unsafe conditions previously discussed create an emergency situation
involving a hazard of death or personal injury. Accordingly, pursuant
to the authority of 49 U.S.C. 20104, delegated to me by the Secretary
of Transportation (49 CFR 1.49), it is hereby ordered that, on and
after October 27, 2008, the prohibitions and restrictions described
below shall be observed by railroad operating employees and railroads.
(a) Scope. This order sets forth prohibitions and restrictions that
apply to railroad operating employees' use of mobile telephones
(commonly called cell telephones or cell phones), other electronic
devices or electrical devices, and other portable electronic devices
(such as portable digital video disc (DVD) players, radio receivers,
and audio players) capable of distracting a railroad operating employee
from a safety-critical duty (by railroad operating employees either
while in the cab of a moving locomotive, while working on the ground in
proximity to a live track) or while another employee of the railroad is
assisting in preparation of the train (e.g., during an air brake test).
This order does not restrict use of the railroad radio nor does it
affect the use of working wireless communications under 49 CFR Part
(b) Definitions. In this order--
(1) 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.
(2) Personal electronic or electrical device means an electronic or
electrical device that was not provided to the railroad operating
employee by the employing railroad for one or more business purposes.
(3) Railroad operating employee means a person performing duties
subject to 49 U.S.C. 21103, ``Limitation on duty hours of train
employees,'' an individual engaged in or connected with the movement of
a train, including a hostler.
(4) Railroad-supplied electronic or electrical device means an
electronic or electrical device provided to a railroad operating
employee by the employing railroad for one or more business purposes.
(5) 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.
(6) Train means (i) a single locomotive, (ii) multiple locomotives
coupled together, or (iii) one or more locomotives coupled with one or
(7) Use of an electronic or electrical device means use of a mobile
telephone or another electronic or electrical device to conduct an oral
communication; place or receive a telephone call; send or read an
electronic mail message or text message; play a game; navigate the
Internet; 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; to execute a
computational function, or to 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 from a safety-critical task. An
electronic or electrical device that enhances the individual's physical
ability to perform these tasks, such as a hearing aid, is not covered
by this order.
(8) Wireless communication device means an electronic device
capable of communicating remotely. Examples include cell phones,
personal digital assistants (PDAs) and portable computers (commonly
called laptop computers). References to use of a wireless communication
device include oral conversations, text messaging, electronic mail, and
transmission or receipt of a file and one or more media.
(c) Personal electronic and electrical devices. (1) Each personal
electronic or electrical device must be turned off with any earpieces
removed from the ear while on a moving train, except that, when radio
failure occurs, a wireless communication device may be used in
accordance with railroad rules and instructions.
(2) Each personal electronic or electrical device must be turned
off with any earpieces removed from the ear when a duty requires any
railroad operating employee to be on the ground or to ride rolling
equipment during a switching operation and during any period when
another employee of the railroad is assisting in preparation of the
train (e.g., during an air brake test).
(3) Use of a personal electronic or electrical device to perform
any function other than voice communication while on duty is
prohibited. In no instance may a personal electronic or electrical
device interfere with the railroad operating employee's performance of
(d) Railroad-supplied electronic and electrical devices. (1) The
use of a railroad-supplied electronic or electrical device by a
locomotive engineer (including a remote-control locomotive operator) is
prohibited while on a moving train, or when a duty requires any member
of the crew to be on the ground or to ride rolling equipment during a
switching operation, or during any period when another employee of the
railroad is assisting in preparation of the train (e.g., during an air
(2) A railroad operating employee other than a locomotive engineer
operating the controls of a moving train may use a railroad-supplied
mobile telephone or remote computing device in the cab of a moving
locomotive for an authorized business purpose, after a safety briefing,
provided that all assigned personnel on the crew agree that it is safe
to do so. Any other use is prohibited in the cab.
(3) A railroad operating employee may use a railroad-supplied
electronic or electrical device for an approved business purpose while
on duty within the body of a passenger train or railroad business car.
Use of the device shall not excuse the individual using the device from
the responsibility to call or acknowledge any signal, inspect any
passing train, or perform any other safety-sensitive duty assigned
under the railroad's operating rules and special instructions.
(4) For freight train crewmembers, a railroad operating employee
may not use a railroad-supplied electronic or electrical device for an
approved business purpose while on duty outside the cab unless the
following conditions are met: (1) The employee is not fouling a track;
(2) no switching operation is underway; (3) no other safety duties are
presently required; and (4) all members
of the crew have been briefed that operations are suspended.
(e) Operational testing. (1) The railroad's program of operational
tests and inspections under 49 CFR Part 217 shall be revised as
necessary to include the requirements of this order and shall
specifically include a minimum number of operational tests and
inspections, subject to adjustment as appropriate.
(2) When conducting tests and inspections under 49 CFR Part 217, a
railroad officer, manager or supervisor is prohibited from calling the
personal electronic or electrical device or the railroad-supplied
electronic or electrical device used by a locomotive engineer while the
train to which the locomotive engineer is assigned is moving.
(3) When an operational test involves stopping a train,
interrupting a switching operation, or interrupting an activity
involving other employees of the railroad (e.g., through use of a
banner, signal, or radio communication), the limitations set forth in
this order regarding use of electronic and electrical devices shall
continue to be in effect even though the train movement, switching
operation, or other activity is temporarily suspended.
(f) Exceptions. Notwithstanding any other provision of this order--
(1) A railroad operating employee may use the digital storage and
display function of a personal or railroad-supplied 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
(2) Railroad operating employees may use a personal or railroad-
supplied wireless communication device as necessary to respond to an
emergency situation involving the operation of the railroad or
encountered while performing a duty for the railroad;
(3) A locomotive engineer (including a remote-control locomotive
operator) may use electronic control systems and informational displays
presented to the locomotive engineer within the locomotive cab or on a
remote control transmitter to operate a train or conduct a switching
operation, including functions associated with controlling switches;
(4) Under conditions authorized under 49 CFR Part 220, a railroad
operating employee may use a railroad-supplied or railroad-authorized
working wireless communication device, in lieu of the railroad radio,
to conduct train or switching operations;
(5) A railroad employee may refer to a digital timepiece to
ascertain the time of day or to verify the accuracy of speed
(g) Training. Each railroad shall instruct each of its railroad
operating employees and supervisors of railroad operating employees
concerning the requirements of this order and implementing railroad
rules and instructions. Such instruction shall be sufficient to ensure
that the requirements of this order are understood, including any
relevant distinctions between the minimum requirements of this rule and
any more stringent requirements implemented by the railroad.
(h) Sanctions. (1) Any individual who willfully violates a
prohibition stated in this order or uses any of the described devices
without observing any of the restrictions stated in this order is
subject to civil penalties under 49 U.S.C. 21301.
(2) In addition, such an individual whose violation of this order
demonstrates the individual's unfitness for safety-sensitive service
may be removed from safety-sensitive service on the railroad under 49
(3) A railroad that violates this order may be subject to civil
penalties under 49 U.S.C. 21301.
(4) FRA may, through the Attorney General, also seek injunctive
relief to enforce this order. 49 U.S.C. 20112.
A railroad may obtain relief from this order by adopting other
means of ensuring that railroad operating employees are not distracted
from their duties by use of electronic or electrical devices or by
implementing technology that will prevent inappropriate acts and
omissions from resulting in injury to persons. Such relief may be
obtained by petition to the FRA Associate Administrator for Safety
establishing that the alternative means provide equivalent safety.
FRA anticipates that it will utilize the existing Railroad Safety
Committee Operating Practices Working Group in the formulation of an
amendment to 49 CFR Part 220 to address comprehensively the safety
implications of the use of electronic devices by railroad employees.
Until that is accomplished, this emergency order is necessary to reduce
the likelihood of additional accidents caused by the unsafe use of
Effective Date and Notice To Affected Persons
On and after October 27, 2008, the prohibitions and restrictions
described above shall be observed by railroads and railroad operating
employees. Notice of this Emergency Order will be provided by
publishing it in the Federal Register.
Opportunity for formal review of this emergency order will be
provided in accordance with 49 U.S.C. 20104(b) and section 554 of title
5 of the United States Code. Administrative procedures governing such
review are found at 49 CFR part 211. See 49 CFR 211.47, 211.71, 211.73,
211.75, and 211.77.
Issued in Washington, DC, on October 1, 2008.
Joseph H. Boardman,
[FR Doc. E8-23755 Filed 10-6-08; 8:45 am]
BILLING CODE 4910-06-P