FRA Electronic Device Regulation

presented by Joseph St. Peter Trial Attorney Federal Railroad Administration U.S. Department of Transportation Transportation Research Board July 22, 2013

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Brief FRA Overview

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Federal Railroad Administration

• FRA is the DOT agency responsible for regulating railroad safety in the U.S.

• FRA’s Office of Railroad Safety (RRS) employs approximately 600 safety inspectors, specialists, and other staff who work out of eight regional field offices. RRS inspectors investigate railroad accidents and inspect railroad facilities, equipment, and operations for compliance with applicable Federal railroad safety statutes and regulations.

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Federal Railroad Administration

• FRA’s Office of Chief Counsel (Safety Law Division), in conjunction with the railroad subject matter experts in RRS, draft the Federal Railroad safety regulations found at Title 49 of the Code of Federal Regulations.

• Safety Law Division attorneys also handle

administrative enforcement actions against railroads and regulated hazardous materials entities when FRA Inspectors discover violations of applicable Federal statutes and regulations.

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Railroad Employee Distraction

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Inattention to duty is not a new issue in the railroad industry. Below are examples of railroad employee behaviors that can lead to such inattention that both the railroad industry and

FRA have more traditionally battled:

• Fatigue/sleeping (hours of service laws/regulations 49 CFR part 228)

• Drug & alcohol use (49 CFR Part 219)

• Reading newspapers, magazines or engaging in otherwise distracting activities while operating trains (prohibitions via longstanding railroad operating rules).

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Electronic Device Distraction

Inattention due to electronic device distraction, however, is a relatively new problem in the railroad

industry. This problem parallels the onslaught of cell phone technology that has occurred during the last two decades (and corresponds with distraction

in all modes of transportation, e.g., distracted driving).

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Notable Railroad Incidents With Potential Electronic Device Distraction Involvement

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• Clarendon, TX, 2002- Freight train collision resulted in one fatality and three injuries. NTSB found that cell phone use by the engineer on one of the trains may have distracted him to the extent that he was unaware of the train dispatcher’s instructions to stop his train at a designated point. (NTSB Recommendation R-03-1 regarding cell phones and railroad operating employees.)

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• Gunter, TX, 2004- Freight train collision resulted in one fatality and one serious injury. Investigation discovered that there was extensive personal cell phone use by both train crews in advance of the collision.

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• San Antonio, TX, 2006- Freight train collision resulted in four injuries. FRA found that the cause of the accident was a locomotive engineer’s inattentiveness because he was engaged in a cell phone conversation (and the conductor’s failure to supervise a safe operation).

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CHATSWORTH

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• September 12, 2008- Head-on collision between Metrolink commuter train and Union Pacific Freight train near Chatsworth, California. The accident resulted in 25 fatalities, 102 injuries, and over $12 million in damages. NTSB Report NTSB/RAR-10/01.

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NTSB Probable Cause

“……failure of the Metrolink engineer to observe and appropriately respond to the red signal

aspect at Control Point Topanga because he was engaged in prohibited use of a wireless device, specifically text messaging, that distracted him

from his duties.”

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At the time of the accident, GCOR Rule 1.10 and Metrolink Notice No. 17.08, which governed the Metrolink engineer’s duties, both prohibited the engineer from using a personal cell phone while

on a moving train.

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FRA Emergency Order No. 26

• Shortly thereafter, on October 1, 2008, FRA issued its 26th Emergency Order (EO 26, Order). Among other prohibitions, EO 26 Federalized requirements prohibiting the use of personal cell phones by railroad operating employees on moving trains. 73 Fed. Reg. 58702.

• On October 16, 2008, the Rail Safety Improvement Act of 2008 (RSIA) was signed into law (requiring positive train control).

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Rulemaking

• In accordance with RSIA, FRA completed a study on the safety impacts of the use of personal electronic devices by railroad employees.

• The study found that railroad operating employees were increasingly using personal electronic devices in a manner that created hazards, e.g., while operating trains (Volpe Center and Veolia have also undertaken an FRA-sponsored distraction study).

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Rulemaking

• Based on the conclusions of the study, RSIA authorized FRA to prohibit the use of electronic devices that may distract railroad employees from safely performing their duties.

• On May 18, 2010, relying on both the results of the study and its general railroad safety rulemaking authority, FRA published an NPRM proposing to largely codify EO 26’s restrictions at subpart C of 49 CFR part 220.

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Rulemaking

Coinciding with Secretary LaHood’s DOT distracted driving campaign, FRA published a final rule on

September 27, 2010, which supplanted EO 26 and codified in Federal regulation electronic device use

prohibitions for on-duty railroad operating employees (train crewmembers such as locomotive engineers and

conductors). 75 Fed. Reg. 59580.

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Rulemaking

• The final rule, which took effect in March, 2011, requires that railroad operating employees be trained on the final rule’s requirements and also requires railroads to regularly check operating employee compliance with the rule’s requirements (operational tests).

• The final rule, similar to many Federal railroad safety

regulations, also provides for possible Federal civil penalties and disqualification from safety-sensitive duties for railroad operating employees who are found to have violated the final rule’s requirements.

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FRA Enforcement

• During the approximately 29 months that EO 26 was in effect, FRA undertook 69 civil penalty actions against railroads for violations of the Order.

• After certain railroad accident investigations, FRA has

both disqualified and taken civil penalty enforcement action against individual railroad employees who were found to have violated the prohibitions of EO 26 or subpart C of part 220.

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FRA Enforcement FRA largely enforces the prohibitions on the use of electronic devices via:

• FRA inspector observations of operating employees using electronic

devices or with electronic devices turned on (not uncommon for a cell phone to ring while an FRA inspector is present on a locomotive).

• Information given to FRA from railroad employees or from the general public. (Facebook photos of employees violating the regulation while on moving trains. Yes, this actually happens.)

• Post-accident subpoenas for cell phone records indicating time/date a cell phone was used to make a call, send a text message, or access the internet.

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FRA Enforcement Questions arise regularly regarding electronic devices, and it is clear that FRA’s challenge will be to keep up with technological advances. Interesting inquiries received by FRA to date: • Is an e-cigarette a prohibited “electronic device” under part 220?

• Is a court-ordered electronic alcohol monitoring device a

prohibited “electronic device.”

• Is a recording device used to record confrontational conversations between railroad management and railroad employees a prohibited “electronic device.”

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Going Forward……..

• FRA, with the Railroad Safety Advisory Committee, has created an electronic device distraction (EDD) working group aimed at developing strategies to combat the use of distracting electronic devices in the railroad industry.

• FRA held an EDD outreach event in 2012 in Chicago, Illinois.

• Ongoing studies of electronic device distraction (Volpe/Veolia, FRA inspection/investigation statistics).

• FRA’s continued vigilant enforcement of electronic device regulation.

• Railroads have also undertaken efforts to stem electronic device distraction. A recent example involves a large railroad conducting operational tests to ensure employees do not access the railroad’s employee management website while on-duty during prohibited periods of time via personal electronic device.

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Questions?

Contact: Joe St. Peter, FRA Office of Chief Counsel, (202) 525-0202, joseph.st.peter@dot.gov