USE OF ELECTRONIC DEVICES ON THE RAILROAD
It is well documented that several recent tragic railroad accidents were caused in part by the usage of a
cell phone. The first reported case took place on May 28, 2002 when an engineer used his cell phone just
prior to the accident, which distracted the engineer and resulted in a head on collision.[1] As cell phone use
and texting increased other accidents occurred, including the tragic collision of September 12, 2008 between
a Metrolink passenger train and a Union Pacific freight train in Chatsworth, California where 25 people were
killed.[2] Immediately after this collision the Federal Railroad Administration promulgated Emergency Order
26, which basically prohibited the use of a cell phone and any electronic device by a trainman or engineer
while at work.[3]
On May 18, 2010 the Federal Railroad Administration (FRA) published a notice of Proposed Rule
Making in which FRA sought input on various aspects of the use of electronic devices and cell phones by
those engaged in a safety sensitive position at the railroad. After receiving input from the various labor
organizations including the Brotherhood of Locomotive Engineers and Trainmen and the United
Transportation Union, FRA published its final rule on September 27, 2010 which will become effective March
26, 2011.[4]
The new regulation establishes minimum standards and in some situations the railroads will be allowed
to impose more stringent standards by rule. The new regulation basically prohibits the use of a cell phone
while engaged in any safety sensitive duty. It does provide for the use of cell phone while deadheading, so
long as the person is not in the controlling cab of a locomotive and it does not interfere with the employee’s
safety related functions.[5] Also for the first time there is now a regulation that deals with taking pictures and
video of safety issues at the workplace. Employees may now take pictures and video to document a safety
hazard or a violation of a rail safety law, regulation, order, or standard.[6] However, photographs or video may
not be taken with a cell phone, but rather a stand-alone camera. Below is the regulation with explanatory
questions and answers to help any member who has to live with and abide by the new regulation.
DEFINITIONS
Earpiece means a small speaker that is inserted in or held next to the ear for use in transmitting related
to an electronic device.
Electronic Device means an electronic or electrical device used to conduct oral, written, or visual
communication; place or receive a telephone call; send or read an electronic mail message or text message;
look at pictures; read a book or other written material; play a game; navigate the Internet; navigate the physical
world; 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; execute a computational function;
or, 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 or another railroad operating employee from a safety-related task. The term
does not include-
(1) Electronic control systems and information displays with locomotive cab or on a a remote control
transmitter necessary for a locomotive engineer to operate a train or conduct switching, operations; or
(2) A digital watch whose only purpose is as a timepiece.
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.
In deadhead status means awaiting or in deadhead transport from one point to another as a result of a
railroad-issued verbal or written directive.
Medical device means an instrument, apparatus, implement, machine, contrivance, implant, or other
similar or related article (including a component part), or accessory that is intended for use in the diagnosis of
disease or other condition, or in the cure, mitigation, treatment, or prevention of disease or other conditions.
Personal electronic device means an electronic device that was not provided to the railroad operating
employee by the employing railroad for a business purpose.
Railroad operating employee means a person performing duties subject to-
(1) 49 U.S.C. 21103. “Limitations on duty hours of train employees” (i.e. an individual engaged in or
connected with the movement of a train, including a hostler);
(2) 49 U.S.C. 21103 as it was in effect on October 15, 2008 the day before the enactment of the Rail Safety
Improvement Act of 2008, Public Law 110-432, Div. A 122 Stat. 4848. October 16, 2008 (i.e. train employees
providing commuter rail passenger transportation or intercity rail passenger transportation as defined in 49 U.
S.C. 24102); or
(3) Any Federal Railroad Administration regulations prescribed pursuant to 49 U.S.C. 21109 governing hours
of service related to train employees.
Railroad supplied electronic device means an electronic device provided to a railroad operating
employee by the employing railroad for an authorized business purpose.
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 purposed 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.
Train for purposes of Subparts A and B, means one or more locomotives coupled with or without cars,
requiring an air brake test in accordance with 49 CFR Part 232 or Part 238, except during switching
operations or where the operation is that of classifying and assembling rail cars within a railroad yard for the
purpose of making or breaking up trains. The term, for purposes of Subpart C, means:
(1) A single locomotive,
(2) Multiple locomotives coupled together, or
(3) One or more locomotives coupled with one or more cars.
1. Q. What part of the new regulation does Subpart C apply to?
A. Subpart C applies to the new regulation, meaning the definition of a train with respect to the use of an
electronic device means, a single or multiple locomotives coupled together with or without cars. This definition
is much broader and includes yard jobs, road switchers, local and road freight assignments and anything else
that has an engine and cars.
Subparts A and B of the regulation generally deal with railroad radio usage. These provisions were
promulgated with the inception of railroad radios.
Subpart C-Electronic devices
§ 220.301 Purpose and scope
(a) The purpose of this subpart is to reduce safety risks resulting from railroad operating employees being
distracted y the inappropriate use of electronic devices, such as mobile telephones (cell phones or cellular
phones) and laptop computers.
(b) The applicability of this subpart is governed by § 220.3; this subpart, however does not affect the use of
working wireless communications pursuant to Subparts A and B.
(c) The restriction of this Subpart C do not apply-
a. To the working radio; or
b. When a working radio failure occurs and an electronic device is used in accordance with railroad rules.
Q. Does section 220.301 apply to the engine radio or my walkie talkie?
A. No. This section applies to the use of cell phones and other electronic devices, but not to a working radio
on a locomotive or a railroad issued walkie talkie. None of the restrictions of Subpart C of this regulation apply
to working railroad issued radios.
§ 220.303 General Use of Electronic Devices
A railroad operating employee shall not use an electronic device if that use would interfere with the
employee’s or another employee’s performance of safety related duties.
Q. What does this provision mean?
A. There are really three definitions of electronic devices in the regulation: (a) electronic devices; (b) personal
electronic devices; and (c) railroad supplied electronic devices. This section is a catch all provision which
means that an operating employee must not use any type of electronic device if it would interfere with that
employee’s or another employee’s performance of a safety related duty.
§ 220.305 Use of Personal Electronic Devices
A railroad operating employee must have each personal electronic device turned off with any earpiece
removed from the ear-
(a) When on a moving train;
(b) When any member of the crew is-
a. On the ground; or
b. Riding rolling equipment during a switching operation; or
(c) When any railroad employee is assisting in the preparation of the train for movement.
Q. What does § 220.305 really mean?
A. This means that the use of a personal electronic device is prohibited any time the train is moving or there is
a safety related duty is being performed. This section is meant to be more restrictive than the next section
which deals with railroad supplied electronic devices.
§ 220.307 Use of Railroad Supplied Electronic Devices
(a) General Restriction. A railroad operating employee may use a railroad supplied electronic device only for
an authorized business purpose as specified by the railroad in writing.
(b) Use by locomotive engineers operating controls. A locomotive engineer operating the controls of a train
shall not use a railroad supplied electronic device-
1. When on a moving train;
2. When any member of the crew is –
i. On the ground, or
ii. Riding rolling equipment during a switching operation; or
3. When any railroad employee is assisting in the preparation of the train for movement.
(c) Use in freight and passenger locomotive cabs generally. In addition to the restrictions on locomotive
engineers described in paragraph (b) of this section, a railroad operating employee who is not in deadhead
status shall not use a railroad-supplied electronic device in the cab of a controlling locomotive except for a
mobile telephone or remote computing device which the employee may use only if, before use-
1. A safety briefing that includes all crewmembers is held; and
2. All crewmembers agree that it is safe to use the railroad supplied mobile telephone or remote computing
device.
(d) Use Outside Freight Locomotive Cabs. A freight train crewmember who is not in deadhead status may
use a railroad-supplied electronic device outside the cab of a controlling freight locomotive only if all of the
following conditions are met:
1. The crewmember is not fouling a track;
2. Operations are suspended; and
3. All members of the crew have been briefed that operations are suspended.
5. Q. Does this section apply to railroad supplied radios?
A. No. This section neither prohibits nor deals with working railroad supplied radios. This section prohibits
the engineer from using a railroad supplied electronic device while performing the listed activities. It also
prohibits other crew members from using railroad supplied electronic devices while in the cab of the
controlling locomotive, except for mobile phones and remote computing devices, unless a safety briefing is
held and all crewmembers agree it is safe. The idea is to limit distractions for the engineer, including using
some railroad supplied electronic device in order to prevent accidents.
Thus, this section really limits the use of railroad supplied electronic devices while in the cab of a controlling
locomotive (whether moving or stopped) to two devices, mobile phones and remote computing devices
(laptops, hammerheads) that are supplied by the railroad. Further, these devices can only be used for an
authorized purpose, such as calling a dispatcher or yardmaster and/or arranging transportation for a
deadhead, etc. Presumably this would allow a conductor to use a railroad supplied mobile phone to arrange
for deadhead transportation while the train is moving. Use of railroad supplied electronic devices for personal
use is prohibited. Finally, the provisions of this section do not apply to those in deadhead service. Section
220.311 deals with this issue.
§ 220.309 Permitted Uses
Notwithstanding any other limitations in the is subpart, a railroad operating employee may use the
following, if that use does not interfere with any employee’s performance of safety related duties-
(a) The digital storage and display function of an 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.
(b) An electronic device as necessary to respond to an emergency situation involving the operation of the
railroad or encountered while performing a duty for the railroad.
(c) An electronic device to take a photograph or video to document a safety hazard or a violation of rail safety
law, regulation, order or standard, provided that-
1. The device’s primary function is as a camera for taking still pictures or videos. (A camera that is part of a
cell phone or other multi-functional electronic device is not included in this exception.);
2. The camera, unless otherwise permitted, is turned off immediately after the documentation has been made;
and
3. If the camera is used in the cab of a moving train, the use is only by a crewmember other than the
locomotive engineer.
(d) A stand-alone calculator if used for an authorized business purpose.
(e) A medical device that is consistent with the railroad’s standards for medical fitness for duty.
(f) A wireless communication device to conduct train or switching operations if the railroad operating
employee is part of a crew assigned to a train that is exempt from the requirement of a working radio under §
220.9(b) when the employing railroad has less than 400,000 annual employee work hours.
6. Q. Are these the only exceptions to the general prohibition of electronic devices?
A. Yes. The regulation basically provides six exceptions to the prohibition of electronic devices.
The use of an electronic storage device to retrieve operating documents is permitted by the regulation,
but use of the device must first be authorized by a railroad operating rule, but its use is permissible. Note for
example, that BNSF prohibits the use of this kind of a device to look up a rule, so long as the train is moving.
Further, this exception does not apply to a locomotive engineer who is at the controls of a moving train or any
other situation as set forth in § 220.307(b).
The use of a personal electronic device is permitted to respond to an emergency situation. This refers to
situations where there is a radio failure, but it includes broader situations, such as a derailment. It does not
refer to nor does it involve some type of personal emergency, such as a sick child at home.
A stand-alone camera, including a video camera may be used to take pictures or video of a safety
hazard or a violation of a rail safety regulation, order or standard. This is a new provision that has never been
a part of any Federal Regulation or agreement. Thus, it is now permissible for any operating employee to take
pictures or video of any safety hazard or violation of a rail safety regulation, order or standard. However, it
must be done in accordance with the stringent provisions set forth above.
A stand-alone calculator can be used for safety related purposes, such as computing train tonnage, train
length and stopping distances and thus the regulation provides for its use. However, this does not include a
cell phone calculator. Also this does mean that an engineer can use a calculator on a moving train or in any of
the situations described in § 220.307(b).
The regulation also permits the use of a medical device consistent with the railroad standards for fitness
for duty. This includes blood sugar monitors for those with a diabetic condition or for those using hearing
aids.
Paragraph (f) exempts smaller railroads from being required to have a working radio on the controlling
locomotive of certain trains so long as such usage is limited to performing the employees’ railroad duties.
§ 220.311 Railroad employees in deadhead status.
(a) Notwithstanding other restrictions in this subpart, a railroad operating employee who is in deadhead
status and not inside the cab of a controlling locomotive may use an electronic device only if the employee is
not using the device in such a way that interferes with any employee’s personal safety or performance of
safety-related duties.
(b) A railroad employee who is in deadhead status and located inside the cab of a controlling locomotive
must have each electronic device turned off with any earpiece removed from the ear-
1. When on a moving train;
2. When any member of the crew is-
i. On the ground, or
ii. Riding rolling equipment during a switching operation; or
3. When any railroad employee is assisting in preparation of the train for movement.
7. Q. Can I use my personal cell phone while waiting on a deadhead?
A. Yes. The definition of a deadhead is “awaiting or in deadhead transport from one point to another as a
result of a railroad-issued verbal or written directive.” Thus, one who is waiting to deadhead could use his/her
personal cell phone, so long as they are not in the cab of a controlling locomotive. Clearly one can use their
personal cell phone while riding in a van, so long as the use does not interfere with another employee’s
personal safety or a safety related duty.
§ 220.313 Instruction.
(a) Program. Each railroad shall maintain a written program of instruction, training, and examination of each
railroad operating employee and each supervisor of the railroad operating employee on the meaning
application of the railroad’s operating rules implementing the requirements of this subpart if these
requirements are pertinent to the employee’s duties. If all requirements of this subpart are satisfied, a railroad
may consolidate any portion of the instruction, train or examination required by this subpart with the program of
instruction required under § 217.11 of this chapter.
1. The written program of instruction, training, and examination shall address the requirements of this
subpart, as well as consequences of noncompliance.
2. The written program of instruction, training and examination shall include, but is not limited to, an
explanation of the following;
i. When a railroad operating employee must have personal electronic
devices turned off with the earpiece removed for the ear as required by this subpart.
ii. If a railroad supplies an electronic device to its railroad operating
employee, when a railroad operating employee may use such a device. The employee must be trained on
what constitutes an authorized business purpose.
iii. The potential penalties and other consequences of committing a
violation of this subpart, both those imposed by FRA and those imposed by the railroad, as well as any
distinction between the requirements of this subpart and any more stringent requirements imposed by the
railroad and the related distinction between the two set of potential consequences.
(b) Implementation Schedule: Each employee performing duties subject to the requirements in this subpart
shall be initially trained.
1. No employee shall perform work requiring compliance with the operating rules implementing the
requirements of this subpart unless the employee has been trained on these rules within the previous three
years.
2. The records of successful completion of instruction, examination, and training require by this section shall
document the instruction of each employee under this subpart.
(c) Records. Written records documenting successful completion of instruction, training, and examination of
each employee and of his or her supervisors shall be made and shall be retained at the railroad’s system
headquarters and at the division headquarters for each division where the employee is assigned for three
calendar years after the end of calendar year to which they relate and made available to representatives of
FRA for inspection and copying during normal business hours. Each railroad to which this part applies is
authorized to retain a program, or any records maintained to prove compliance with such a program, by
electronic recordkeeping in accordance with §§ 217.9(g) and 217.11 (c) of this section.
(d) Approval process. Upon review of the program of instruction, training and examination required by this
section, the Associate Administrator for Railroad Safety/Chief Safety Officer may, for cause stated,
disapprove the program. Notification of such disapproval shall be made in writing and specify the basis for
the disapproval.
1. If the Associate Administrator for the Railroad Safety/Chief Safety officer disapproves the program, the
railroad has 35 days from the date of the written notification of such disapproval to-
i. Amend its program and submit it to the Associate Administrator for
Railroad Safety/Chief Safety Officer for approval; or
ii. Provide a written response in support of the program to the Associate
Administrator for Railroad Safety/Chief Safety Officer, who informs the railroad of FRA’s final decision in
writing.
2. A failure to submit the program with the necessary revisions to the Associate Administrator for Railroad
Safety/Chief Safety Officer in accordance with this paragraph is considered a failure to implement a program
under this subpart.
§ 220.315 Operational tests and inspections; further restriction on use of electronic
devices.
(a) The railroad’s program of operational tests and inspections under Part 217 of this chapter shall be revised
as necessary to include this subpart and shall specifically include a minimum number of operational tests and
inspections, subject to adjustment as appropriate.
(b) When conducting a test or inspection under Part 217 of this chapter, a railroad officer, manager, or
supervisor is prohibited from calling the personal electronic device or the railroad supplied electronic device
used by a locomotive engineer while the train to which the engineer is assigned is moving.
(c) When an operational test involves stopping a train, interrupting a switching operation, or interrupting an
activity involving another employee involved with the movement of the train (e.g. through the use of a banner,
signal, or radio communication), the limitations on the use of electronic devices set forth in this subpart
continue to be in effect although the train movement, switching operation, or other activity is temporarily
suspended.
8. Q. Does section 220.315 prohibit a manager from sending a text message to an engineer while he is
running a train?
A. Yes. The regulation prohibits a manager from calling or texting an engineer the train to which the engineer
is assigned is moving. This would not prohibit a manager from calling or texting an engineer who is stopped. It
would also not prohibit a manager from calling or texting a conductor on a moving train.
9. Q. Can the FRA subpoena my cell phone records?
A. Yes. The FRA has authority to subpoena cell phone records of any employee subject to this regulation.
This means the FRA can obtain one’s cell phone records without the person’s permission. Of course if the
FRA finds a violation, the records can be given to the railroad for disciplinary action.
10. Q. What are the penalties for improper use of an electronic device?
A. The FRA can fine an employee up to $25,000.00 for a willful violation. A willful violation generally means
the person is aware of law and blatantly disregards the law. The FRA could remove the person from service
as the FRA has the authority to remove any employee from a safety sensitive position for a violation of a
Federal regulation. Of course the railroad can discipline an employee for improper use of an electronic
device as well.
11. Q. Can a railroad manager force me to produce/inspect my cell phone?
A. No. The regulation does not require that the employee submit his/her cell phone to a manager for
inspection. This raises many invasion of privacy issues such as those provided under the Electronic
Communications Privacy Act, 18 U.S.C. § 2510, et. seq. and/or the Stored Communications Act 18 U.S.C. §
2701, et. seq. However, in many ways this is a moot point as the records of cell phone use are certainly
attainable through the subpoena powers of FRA.
Note also that most railroad operating rules require that a cell phone be turned off and stored out of sight.
Therefore if a cell phone was turned off, but lying on the conductor’s desk during normal operations, the
railroad GCOR rule would be violated, even though the Federal regulation was not.
12. Q. I am the engineer on a train. My train is stopped and the conductor is lining a switch for our movement;
can I make a call on my cell phone?
A. No. Cell phones and other personal electronic devices must not be turned on while any member of the crew
including the engineer is on the ground performing safety related duties.
13. Q. May I have my cell phone or other approved personal electronic device powered on while my train is
stopped during an air brake test?
A. No. Cell phones and other personal electronic devices must not be powered on while any employee is
assisting in preparation of your train or engine for movement.
14. Q. May a manager, such as a road foreman or MTO have a cell phone turned on and/or use it while riding
in the controlling locomotive?
A. No. Supervisors are required to comply with the regulation in the same manner as an operating employee.
15. Q. We are stopped in a siding waiting to meet an opposing train. May I use my cell phone?
A. Yes, so long as no member of the crew will foul any track and all crewmembers confirm the call or text
messaging will not interfere with any safety related or required duties.
16. Q. While operating a moving train as an engineer, may I use a digital watch to check the accuracy of my
speedometer?
A. Yes. A digital watch whose only purpose is a timepiece is not restricted or prohibited for this use.
17. Q. While operating the controls of a moving locomotive, may I use an electronic device to control remote
locomotives in my train?
A. Yes. Electronic control systems and information displays within the locomotive cab or on a remote control
transmitter necessary to operate a train or conduct switching operations are not prohibited or restricted.
Steve Young, Esq.
Designated Legal Counsel
1300 Post Oak Blvd. Ste. 1750
Houston, Texas 77056
888 565 7245
www.tavorminayoung.com
© Copyrighted Material
Steve Young is a second generation railroad worker, having hired on with the Southern Pacific as a track laborer in
1970. He subsequently worked for Southern Pacific as a Clerk, Train Order Operator, Train Dispatcher, Chief Train
Dispatcher, Brakeman, Fireman and Locomotive Engineer. He was also an elected union officer, serving as Local
Chairman, General Chairman and Alternate Vice President.
Steve was admitted to the state bar in 1993 and limits his law practice to representing injured railroad workers. He has
the unique honor of being the only attorney in Texas designated by both the BLET and UTU. He is AV rated with the
highest possible legal and ethical standards in the legal profession.
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[1] May 28, 2002 – accident at Clarendon, Texas - The engineer of the train at fault was on his cell phone as the train
exited a siding and thus overran a meet causing a head on collision in dark territory. One engineer died and the other
three crew members were injured.
[2] September 12, 2008 – the engineer was texting a young woman and ran a red signal, proceeding into the path of an
oncoming Union Pacific freight train.
[3] Emergency Order 26 was placed into effect on October 1, 2008
[4] The new regulation is codified as 49 CFR Part 220, Electronic Devices
[5] See 49 C.F.R. 220.311
[6] See 49 C.F.R. 220.209