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| Shapiro, Washburn & Sharp

In the wake of the Metrolink passenger rail collision-the worst and most deadly rail accident in over 10 years-the federal Railroad administration (FRA) issued an emergency order that takes effect October 27, 2008 and restricts the use of cell phones, PDAs and other wireless communication devices by operating train crews. On October 7, 2008 the emergency order, no. 26, outlined all of the emergency regulations.

As I reported in an earlier article/call to action I wrote on September 19, 2008, no federal regulations restricted the use of cell phones up until this emergency order. Amazing, but true.

The uses of electronic devices restricted by the Emergency Order include:

  • the use of a mobile telephone or another electronic or electrical device to conduct an oral communication;
  • placing or receiving a telephone call;
  • sending or reading an electronic mail message or text message;
  • playing a game;
  • navigating the Internet;
  • playing, viewing, or listening to a video;
  • playing, viewing, or listening to a television broadcast;
  • playing or listening to a radio broadcast other than a radio broadcast by a railroad;
  • playing or listening to music;
  • executing a computational function; and
  • performing 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.

All personal electronic devices; electronic devices not supplied by the railroad must be turned off and any electronic earpieces must be removed while a train is moving; the only exceptions cover when radio failure occurs, wireless communication devices may be used in accordance with railroad rules and instructions, and emergency use of such devices to report safety issues.

One exception among several is that an operating employee other than a locomotive engineer may use a railroad-supplied mobile telephone or remote computing device in the cab of a locomotive for an authorized business purpose, after a safety briefing, provided that all assigned personnel in the crew agree that it is safe to do so. Keep in mind that the nation’s railroads have been pushing for years to reduce the total crew members on trains–most trains are down to 2 crew members-even trains miles long! The railroads have been seeking to only have 1 crew member on many railroad jobs. I suppose if the crew is down to 1, that crew member can ask his or her alter ego if its safe to use the cell phone to contact management!

New rules even apply for train crew members not inside a locomotive, but working at ground level. 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.

The Emergency Order does not restrict uses electronic gauges or controls on a dashboard or control panel, and railroad supplied remote control devices have special provisions also.

Willful violations of the Emergency Order could subject the violator to substantial civil penalties. The FRA can move to disqualify a violator from performing safety-sensitive service temporarily or permanently.

The main rail union representing railroad engineers is the BLET, and the union’s National President Ed Rodzwicz said, "sadly, the use of electronic devices has literally become a life and death issue for all operating employees and compliance with the Emergency Order must be absolute."

Interestingly, the FRA had been considering cellphone regulations since at least as early as 2004. The FRA outlined in the Federal Register notice how suggested cell phone restrictions had been discussed by FRA with rail management and rail unionis between 2004 and as recently as May, 2008 in formal meetings. The FRA outlined a considerable number of incidents between 2000 and 2006 in which cell phone use was directly implicated in a train accident, or at least was a possible contributing cause. What I find notable is that the FRA enacted not one regulation during the four year period before the Metrolink disaster where the specifics about what exact regulations were needed, and only after this terrible disaster involving the engineer possibly texting during his train operation did FRA finally publish this Emergency Order, published at the Federal Register, October 7, 2008 at 58702 — 58708.

My take: everyone in the railroad industry involved in train operations was aware that cell phone use was rampant, and in need of control. The FRA needs to wake up and understand that sometimes federal agencies must do things that are not necessarily favored by any of its constituency, but that public safety demands. On a related front, wrecks like this involving one crew member missing a key signal underscore why its critical to have 2 crew in the locomotive-just like on a commercial jet.

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