FRA Emergency Order No. 26, Notice No. 1

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considered environmentally acceptable
for supersonic flight over land.
The FAA is leading a panel
discussion entitled, ‘‘State of the Art of
Supersonics Aircraft Technology—What
has progressed in science since 1973?’’
The purpose of this panel session is to
raise public awareness on advances in
supersonic technology, and for the FAA,
the National Aeronautics and Space
Administration (NASA), and industry to
get feedback from interested persons.
Public involvement is essential in any
future definition of an acceptable new
standard that would allow supersonic
flights over land. We anticipate that this
will be the first of many meetings
informing the public on developments
in the research of shaped sonic booms
and other technical and environmental
challenges that need to be addressed in
developing a new supersonic airplane.
The FAA’s presentation and panel
discussion will take place on Friday,
October 24, 2008, as part of the O’Hare
Noise Compatibility Commission
Symposium. It will be held at the Hyatt
Rosemont Hotel, 6350 N. River Road,
Rosemont, Illinois.
More information about the O’Hare
Noise Compatibility Commission can be
found at its Web site,
www.oharenoise.org.
Issued in Washington, DC, on September
24, 2008.
Lynne Pickard,
Acting Director of Environment and Energy.
[FR Doc. E8–22898 Filed 10–6–08; 8:45 am]
BILLING CODE 4910–13–M

DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[FRA Emergency Order No. 26, Notice
No. 1]

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Emergency Order To Restrict On-Duty
Railroad Operating Employees’ Use of
Cellular Telephones and Other
Distracting Electronic and Electrical
Devices
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).

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Introduction
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
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.)
Background
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.
FRA Activity
When FRA amended 49 CFR Part 220Radio 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.

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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 nonradio 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

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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
special instructions.
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

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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 Response.’’
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 distracting.
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

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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
operating employees.
At a meeting of the Operating Rules
Working Group held in Grapevine,

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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.

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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
accident.
(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 accident.
Train Collisions Between 2000 and 2006
in Which Cell Phone Use Was Involved
(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

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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 businessrelated calls, and the northbound
conductor made the third.

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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

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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 locomotive.
Fatal Train Incidents Between 2000 and
2005 Linked With Cell Phone Usage
(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

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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 regulation.
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

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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
present.
• On at least two occasions, FRA
personnel have observed railroad
employees on locomotives watching
digital video disc (DVD) players.
• 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

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locomotive engineer answered the
phone after the FRA inspector had
identified himself.
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
Distraction1

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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;
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, 7, 89–106.
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.

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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 400percent 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,

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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 lowclearance warnings.
Train Operations
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 handling.
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.

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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 safetycritical 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 220.
(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.

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(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 more
cars.
(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 safetycritical 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

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58707

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 safetyrelated duties.
(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 brake test).
(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

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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 railroadsupplied 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;
(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 railroadsupplied 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
indicators.

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(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 U.S.C. 20111.
(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.
Relief
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 electronic devices.
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.

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Review
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,
Administrator.
[FR Doc. E8–23755 Filed 10–6–08; 8:45 am]
BILLING CODE 4910–06–P

DEPARTMENT OF TRANSPORTATION
Research and Innovative Technology
Administration
[Docket: RITA 2008–0002 BTS Paperwork
Reduction Notice]

Agency Information Collection; Bureau
of Transportation Statistics; Activity
Under OMB Review; Submission of
Audit Reports—Part 248
Bureau of Transportation
Statistics (BTS), DOT.
ACTION: Notice.
AGENCY:

SUMMARY: In compliance with the
Paperwork Reduction Act of 1995,
Public Law 104–13, the Bureau of
Transportation Statistics invites the
general public, industry and other
governmental parties to comment on the
continuing need for and usefulness of
BTS requiring U.S. large certificated air
carriers to submit two true and complete
copies of its annual audit that is made
by an independent public accountant. If
a carrier does not have an annual audit,
the carrier must file a statement that no
audit has been performed. Comments
are requested concerning whether (1)
The audit reports are needed by BTS
and DOT; (2) BTS accurately estimated
the reporting burden; (3) there are other
ways to enhance the quality, utility and
clarity of the information collected; and
(4) there are ways to minimize reporting
burden, including the use of automated
collection techniques or other forms of
information technology.
DATES: Written comments should be
submitted by December 8, 2008.
ADDRESSES: You may submit comments
identified by DOT Docket ID Number
RITA 2008–0002 by any of the following
methods:
Federal eRulemaking Portal: Go to
http://www.regulations.gov. Follow the
online instructions for submitting
comments.

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