September 29th, 2010 | 
Author: WASHINGTON, DC – On Monday, September 27, 2010, the U.S. Department of Transportation, Federal Railroad Administration (FRA) made a final ruling regarding cell phone usage by railroad employees.
FRA final ruling on cell phone usage by railroad employees.
Below are excerpts from the ruling published in the Federal Register. This post is a follow-up to a related story published here at the FELA Lawyer News Blog on May 18th, 2010.
Excerpt From FRA Ruling
Section 220.309(c) of this rule allows for the expanded use of cameras to document safety hazards. The FRA is trying to eliminate the use of distracting electronic devices by railroad operating employees. In the FRA’s experience, personal cell phone usage contributes to railroad accidents. By disallowing the use of a camera that is part of a personal cell phone, the FRA hopes to minimize use of cell phones during safety-critical times thereby preventing future accidents. If a rail employee wishes to report these hazards to the FRA or to the railroad, instead of photograph them, they may do so as the FRA is not prohibiting employees from carrying stand-alone cameras. Further, during the periods of time when cell phone cameras may be used, employees are free to use them in any manner they wish provided they use them in accordance with any applicable railroad operating rules.
Preemptive Effect
This final rule could have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes [specifically the former Federal Railroad Safety Act of 1970 (former FRSA), repealed and recodified at 49 U.S.C 20106], and the former Locomotive-Boiler Inspection Act [former LBIA repealed and recodified at 49 U.S.C. 20701–20703.See Pub. L. 103–272]. The former FRSA provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the ‘‘local safety or security hazard’’ exception to § 20106. Moreover, the former LBIA has been interpreted by the United States Supreme Court as preempting the entire field of locomotive safety. See, Napier v. Atlantic Coast R.R., 272 U.S. 605, 611; 47 S.Ct. 207, 209 (1926). In sum, FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this final rule has no federalism implications, other than the possible preemption of State laws under the former FRSA and the former LBIA. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this final rule is not required.
Related stories:
Proposed FRA Rule to Ban Use of Electronic Devices for Railroad Workers While on Duty
Published by FELA lawyer Gordon, Elias & Seely, LLP
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