Notation 8215: The National Transportation Safety Board (NTSB) has reviewed the Federal Railroad Administration’s (FRA) notice of proposed rulemaking (NPRM), “Restrictions on Railroad Operating Employees’ Use of Cellular Telephones and Other Electronic Devices,” that was published at 75 Federal Register 27672 on May 18, 2010. The NPRM codifies most of the requirements of FRA Emergency Order No. 26, “Emergency Order to Restrict On-Duty Railroad Operating Employees’ Use of Cellular Telephones and Other Distracting Electronic and Electrical Devices,” published at 73 Federal Register 58702; however, the FRA proposes some substantive changes. The FRA also requests comments regarding whether violations of the proposed rule should be a basis for revoking a locomotive engineer’s certification. The NTSB notes that the proposed rule as written contains many elements that will improve railroad safety by eliminating significant distractions for railroad operating employees, but the NTSB also believes that some sections of the NPRM could be improved.
The NTSB investigated a collision of two Burlington Northern Santa Fe freight trains near Clarendon, Texas, on May 28, 2002. The NTSB determined that the probable cause of the collision was (1) 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 and (2) the unexplained failure of the conductor to ensure that the engineer complied with the track warrant restrictions. Contributing to the accident was the absence of a positive train control system that would have automatically stopped the coal train before it exceeded its authorized limits. The NTSB concluded that the engineer’s cellular telephone use likely distracted him to the extent that he did not take proper note of the after-arrival stipulations imposed by the track warrant and thus was unaware of the need to prepare to bring his train to a stop. Based on its investigation of this accident, the NTSB made the following safety recommendation to the FRA on June 13, 2003:
Promulgate new or amended regulations that will control the use of cellular telephones and similar wireless communication devices by railroad operating employees while on duty so that such use does not affect operational safety. (R-03-1) (Closed—Acceptable Alternate Action)
The NTSB investigated an accident that occurred on September 12, 2008, in which a Southern California Regional Rail Authority Metrolink passenger train collided head on with a Union Pacific Railroad freight train near Chatsworth, California. The accident resulted in 25 fatalities, including the engineer of the Metrolink train. Emergency response agencies reported transporting 102 injured passengers to local hospitals. The NTSB determined that the probable cause of the collision was the failure of the Metrolink engineer to observe and appropriately respond to the red signal aspect at a control point because he was engaged in prohibited use of a wireless device, specifically text messaging that distracted him from his duties. Contributing to the accident was the lack of a positive train control system that would have stopped the Metrolink train short of the red signal and thus prevented the collision. The NTSB’s investigation also showed that the conductor of the Union Pacific Leesdale Local had violated operating rules by sending and receiving text messages during times when he shared responsibility for the safe operations of his train; however, any distraction caused by such use did not cause or contribute to the accident.
Following the Chatsworth, California, accident, on October 7, 2008, the FRA issued Emergency Order No. 26 to restrict on-duty railroad operating employees’ use of cellular telephones and other distracting electronic and electrical devices. In a letter dated September 17, 2009, the NTSB stated that it was disappointed that the FRA had not taken action to address this long-recognized safety threat until 25 lives were lost at Chatsworth. However, the NTSB acknowledged that Emergency Order No. 26 constitutes an acceptable alternate means of addressing Safety Recommendation R-03-1 and classified it “Closed—Acceptable Alternate Action.”
State and Federal Restrictions on Cellular Telephone Use
Much attention has been given to the use of cellular telephones while driving a motor vehicle. As noted in the NTSB’s May 17, 2010, comments on the Federal Motor Carrier Safety Administration’s NPRM “Limiting the Use of Wireless Communication Devices,”
Nearly half of all the states (23, plus the District of Columbia and Guam) have enacted bans on texting while driving…. As of April 2010, seven states—California, Connecticut, New Jersey, New York, Oregon, Utah, and Washington—plus the District of Columbia—had laws banning the use of hand-held cellular telephones while driving. …
In September 2009, the NTSB issued an internal operations bulletin establishing a policy to prevent distracted driving by NTSB staff. That policy states that employees may not use any wireless or other electronic device while driving on NTSB business or use an NTSB-issued electronic device while driving their own vehicles while off duty. The NTSB is also aware that, following the [U.S. Department of Transportation] DOT summit on distracted driving on October 1, 2009, the President issued Executive Order 13513, which bans federal employees from texting when using a Government-issued electronic device while driving any vehicle, whether Government or private.
The NTSB believes that the NPRM contains many elements, similar to Emergency Order No. 26, that improve railroad safety by eliminating significant distractions for railroad operating employees when they should be performing their required duties. The NTSB agrees with many of the NPRM sections, including those about Title 49 Code of Federal Regulations (CFR) 220.301, 220.303, 220.305, 220.307, 220.311, and 220.313. The NTSB offers the following comments on other sections of the NPRM.
49 CFR 220.309 “Permitted Uses”
The NTSB acknowledges the fact that there are limited instances when the use of an electronic device is necessary. The NTSB believes that the six uses of electronic devices that the FRA finds to be permissible are an acceptable means of permitting this limited use while preventing unsafe distraction. As technology exists today, the NTSB does not envision a need for any other permitted use of electronic devices other than those described in this section.
49 CFR 220.315 “Operational Tests and Inspections; Further Restrictions on Use of Electronic Devices”
The NTSB notes that the FRA addresses operational testing by restricting how those tests are performed and by providing railroads with guidance about including operational test requirements in the railroads’ operational testing programs. However, this section does not address acceptable ways for railroad managers to perform operational tests to identify violations of the proposed rule. The NTSB believes that more guidance is necessary to develop a uniform standard of testing across the railroad industry.
During its investigation of the previously mentioned September 12, 2008, railroad accident near Chatsworth, California, the NTSB concluded that a train crew performance monitoring program that includes the use of in-cab audio and image recordings would serve as a significant deterrent to the types of noncompliance with safety rules engaged in by the Metrolink engineer and the Union Pacific Leesdale Local conductor in that accident and would provide railroads with a more comprehensive means to evaluate the adequacy of their safety programs.
As a result of the Chatsworth, California, accident investigation, the NTSB issued the following recommendations to the FRA:
Require the installation, in all controlling locomotive cabs and cab car operating compartments, of crash- and fire-protected inward- and outward-facing audio and image recorders capable of providing recordings to verify that train crew actions are in accordance with rules and procedures that are essential to safety as well as train operating conditions. The devices should have a minimum 12-hour continuous recording capability with recordings that are easily accessible for review, with appropriate limitations on public release, for the investigation of accidents or for use by management in carrying out efficiency testing and systemwide performance monitoring programs. (R-10-1) (Open—Await Response)
Require that railroads regularly review and use in-cab audio and image recordings (with appropriate limitations on public release), in conjunction with other performance data, to verify that train crew actions are in accordance with rules and procedures that are essential to safety. (R-10-2) (Open—Await Response)
Although the NTSB is concerned about not unduly invading individual privacy, we continue to believe that monitoring train crew compliance with safety rules and procedures via in-cab audio and image recordings is critical. The NTSB Chatsworth, California, accident investigation report notes
Concerns about individual privacy have typically influenced decisions about the installation and use of audio or image recorders to record crewmembers at work. However, the NTSB does not believe that employee privacy should take precedence over public safety given the many accidents and incidents, in all transportation modes, that the NTSB has investigated that involved vehicle operator distraction. Workers in safety-critical positions in all industries should expect to be observed in the workplace, just as most employees should expect their employers to be able to monitor such activities as e-mail and Web browsing during work hours. The argument for complete privacy in settings such as a locomotive cab, where lives of many are entrusted to the care of one, is not persuasive.
IV. C “Locomotive Engineer Certification Revocation”
The FRA requested comments about amending 49 CFR Part 240 to add violations of the proposed restrictions on using cellular telephones or other electronic devices as a basis for revoking a locomotive engineer’s certification. The NTSB believes that this deterrent is a necessary addition and that applicable revisions to 49 CFR Part 240 should be made. The NTSB also believes that any future FRA rulemakings that address certification of safety-critical positions, such as a conductor certification program, should include similar deterrent enforcement provisions.
V. “Enforcement Issues”
The NPRM discusses the possibility of railroads requiring operating employees to allow access to their personal cellular telephone records if they are involved in an accident and there is reasonable belief that the employees’ acts or omissions contributed to the accident. The FRA has declined to pursue this route, choosing instead to rely on its investigative authority to issue subpoenas to obtain such records. The NTSB believes that a requirement for employee consent would allow the timely retrieval of cellular telephone use records. At the same time, the NTSB acknowledges that there could be concerns about the impact of such required consent on the ability of law enforcement authorities to prosecute criminal offenses that may be embodied in the accident’s circumstances. The NTSB, however, is concerned about the ability to obtain consent prospectively, to enforce a consent requirement after an accident or incident or when an employee is killed or injured, and to issue a subpoena within the context of current telecommunications laws. The NTSB is also concerned that the FRA’s current subpoena authority may not permit the FRA to obtain all relevant records, such as actual text messages, following an accident. Nevertheless, attempting to determine improper cellular telephone use can be a critical part of an accident investigation, and the NTSB would support an effort to amend current telecommunications legislation to permit an investigative body, such as the FRA or the NTSB, to subpoena all relevant cellular telephone records.
The NTSB also notes that the FRA’s Emergency Order No. 26 identifies various sanctions for noncompliance with the order. The NTSB believes that similar sanctions should be identified when this NPRM becomes a final rule.
The NTSB appreciates the opportunity to comment on this proposed rule. Should you require any additional information or clarification, please contact us.