September 17, 2014

FRA to make cell-phone ban permanent

WASHINGTON — The Federal Railroad Administration has announced it will make permanent its Emergency Order No. 26 restricting the use by on-duty train crews of cell phones and other electronic devices.

Some changes, as described below, are to be included in the permanent ban.

The emergency order was issued in October 2008, and the permanent ban will go into effect in late March 2011, following mandatory carrier instruction of train and engine workers covered under the ban.

During the interim, Emergency Order No. 26 will remain in effect.

The emergency order and the permanent ban prohibit the use of an electronic device — whether personal or railroad supplied — if it interferes with that employee’s or another employee’s performance of safety-related duties.

The permanent ban, going into effect in six months, contains some different provisions from the 2008 emergency order and/or the FRA’s May draft final of the permanent ban:

Engineer and conductor certification

The final rule will not immediately subject engineers or conductors (when conductor certification, required by the Railroad Safety Improvement Act of 2008, is implemented) to revocation of their certification for a violation of the ban.

However, the FRA said it “may be appropriate” in the future to revoke such certification following a violation.

After the FRA unveiled its draft final rule in May, the UTU and other rail labor organizations filed written comments in June, strongly objecting to making such violations subject to revocation of certification.

Personal cellphone records

The final rule scraps an FRA suggestion in its draft final rule that train and engine workers provide railroads access to their personal cellphone records in the event of an accident. The FRA said it already has such authority under the law. The UTU and other rail labor organizations had argued that such a provision would “result in harassment of our members by accessing their personal phone records for any and every incident.”

Personal emergencies

The final rule will not create an exception for personal emergencies. The FRA said such an exception “would present significant obstacles,” as an operating employee “found with a cellphone turned on while on a moving train could easily say the phone was on because of a sick family member, whether true or not.”

The UTU and other rail labor organizations had urged adoption of a personal emergency exception. But as the rule is now written, an employee will be prohibited from contacting health care providers or sick family members in emergency situations no matter how serious the situation is and even if their railroad employer would have permitted them to do so.

GPS devices

In the final rule, the use of personal global positioning service (GPS) devices is not permitted. “Locomotive engineers,” said the FRA, “are required to be familiar with the physical characteristics of the routes over which they operate. Thus, engineers should already be aware of where sidings, road crossings, and other physical characteristics are located.”

Calculators

The FRA’s final rule does permit calculators to be used to determine formulas such as train stopping calculations or tons per operative brake.

Cameras

The final rule allows for stand-alone cameras (not part of a cellphone or other electronic device) to document a safety hazard or a violation of a rail safety law, regulation order, or standard. However, the FRA final rule will permit the use of railroad-supplied multi-functional devices that include a camera for “authorized business purposes as specified by the railroad in writing” and only after being approved by the FRA.

The UTU and other rail labor organizations had argued that it “is unnecessary to require employees to carry several separate electronic devices on a daily basis to effectively and safety perform their duties.” The labor organizations recommended — but the FRA rejected — that a cellphone camera be allowed to document a hazard or violation of a regulation and then be turned off immediately.

To read the FRA’s Sept. 27 final rule, which is more than 40 pages when printed out, click on the following link:

http://edocket.access.gpo.gov:80/2010/2010-23916.htm

To read the June 17 joint filing by the UTU and other rail labor organizations to the draft final rule, which is 17 pages when printed out, click here.