Accident/Incident Investigation Policy for Gathering Information and Consulting With Stakeholders

<RULE> DEPARTMENT OF TRANSPORTATION <SUBAGY>Federal Railroad Administration</SUBAGY> <CFR>49 CFR Part 225</CFR> <DEPDOC>[Docket No. FRA-2024-0034]</DEPDOC> <RIN>RIN 2130-AC98</RIN> <SUBJECT>Accident/Incident Investigation Policy for Gathering Information and Consulting With Stakeholders</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Federal Railroad Administration (FRA), Department of Transportation (DOT). <HD SOURCE="HED">ACTION:</HD> Final rule; withdrawal. <SUM> <HD SOURCE="HED">SUMMARY:</HD> FRA is withdrawing the direct final rule titled “Federal Railroad Administration Accident/Incident Investigation Policy for Gathering Information and Consulting with Stakeholders,” (the Rule) which was published on October 1, 2024. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective on January 17, 2025, FRA withdraws the direct final rule published at 89 FR 79767 on October 1, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Rick Huggins, Supervisory Railroad Security Specialist, Office of Railroad Safety, FRA, telephone: 202-465-6922 or email: <E T="03">ricky.huggins@dot.gov;</E> or Senya Waas, Senior Attorney, Office of the Chief Counsel, FRA, telephone: 202-875-4158 or email: <E T="03">senyaann.waas@dot.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> On October 1, 2024, FRA published the Rule in the <E T="04">Federal Register</E> amending 49 Code of Federal Regulations (CFR) 225.31 to, in accordance with Section 22417 of the Infrastructure Investment and Jobs Act (IIJA), create a standard process for investigators to use during accident and incident investigations conducted under that section. <SU>1</SU> <FTREF/> This process was to be used to determine when it was appropriate to collect information and the appropriate method for gathering that information about an accident or incident under investigation from railroad carriers, contractors or employees of railroad carriers, or representatives of employees of railroad carriers, and others, as determined relevant by the Secretary. The process was also to be used to determine when it was appropriate to consult with railroad carriers, contractors or employees of railroad carriers, or representatives of employees of railroad carriers, and others, as determined relevant by the Secretary, for technical expertise on the facts of the accident or incident under investigation. <E T="03">See</E> Public Law 117-58, Section 22417, Nov. 15, 2021, 135 Stat. 748. <FTNT> <SU>1</SU>  89 FR 79767. A correction to the Rule was published on October 28, 2024 (89 FR 85450). </FTNT> The Rule generated two adverse, substantive comments. Accordingly, as described in more detail below, FRA has decided to withdraw the Rule. <HD SOURCE="HD1">II. Reasons for Withdrawal</HD> FRA is withdrawing the Rule, which took effect on November 15, 2024. FRA received two adverse, substantive comments which opposed the Rule. There were no comments submitted in support of the Rule. <SU>2</SU> <FTREF/> <FTNT> <SU>2</SU>  As stated in the Rule: “If FRA receives an adverse, substantive comment on any of the provisions, it will publish in the <E T="04">Federal Register</E> a timely withdrawal, informing the public that the direct final rule will not take effect.” 89 FR 79767 at 79768. </FTNT> Commenters objecting to the Rule stated that the Rule was insufficient as it needed to be expanded to include the outside review of accidents/incidents by professionals, such as physicists or highly-qualified industrial engineers, as independent reviews of findings. Commenters also alleged that FRA's outreach to the Class I railroads was limited and insufficient, and nonexistent to short line railroads. As such, it was the position of the commenters that FRA did not account for how the Rule would fully affect the railroad industry in the following ways: (1) FRA's “catch-all” provision for determining which accidents trigger the information gathering and stakeholder consultation requirements is vague and fails to properly implement the IIJA mandate; (2) FRA's description of “stakeholders” fails to properly implement the IIJA mandate; (3) FRA fails to explain substantive regulatory changes in 49 CFR 225.31(a); (4) loopholes allow for information to be shared with third parties during an investigation; (5) it is unclear how FRA's web-based document sharing site will protect against the disclosure of confidential information; (6) there are no protections against post-investigation disclosures of confidential information; (7) the identity of a stakeholder should not be kept confidential from other stakeholders; (8) FRA's investigation policy would create untenable conflicts with NTSB practice in situations where NTSB and FRA conduct overlapping investigations; (9) FRA improperly limits the basis for restricting stakeholder access to an accident site; (10) FRA does not have the authority to grant a stakeholder “virtual” access to railroad property; (11) the investigation policy will result in undue delays in clearing accident sites; (12) FRA adopts an incident command model but fails to provide details on its structure and tasks; and (13) FRA underestimates the cost of compliance of the new regulation. Given the extent of the commenters' substantive issues with the Rule, FRA is withdrawing the Rule at this time in order to re-assess its components and work further with stakeholders to evaluate potential changes. <HD SOURCE="HD1">III. Regulatory Impact and Notices</HD> <HD SOURCE="HD2">A. Executive Order 12866 as Amended by Executive Order 14094 and DOT Regulatory Policies and Procedures</HD> This withdrawal is a non-significant regulatory action within the meaning of Executive Order (E.O.) 12866, as amended by E.O. 14094, “Modernizing Regulatory <FTREF/> Review  <SU>3</SU> ” and DOT's Order, “Rulemaking and Guidance Procedures,” DOT 2100.6A (June 7, 2021). <SU>4</SU> <FTREF/> FRA made this determination because the economic effects of this regulatory action will not exceed the $100 million annual threshold as defined by E.O. 12866. <FTNT> <SU>3</SU>  88 FR 21879 (Apr. 6, 2023) available at <E T="03">https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.</E> </FTNT> <FTNT> <SU>4</SU>  DOT-2100.6A-Rulemaking and Guidance (Jun. 7, 2021) available at <E T="03">https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf.</E> </FTNT> FRA is amending its Accident/Incident Regulations, covering reporting, classification, and investigations, by withdrawing its regulation ( <E T="03">i.e.,</E> the Rule) for gathering information from and consulting with stakeholders during an accident/incident investigation. Through this withdrawal of the Rule, FRA is revising its accident investigation process by removing the changes made by the Rule that established procedures for stakeholder participation in investigation, including notifying stakeholders of an accident investigation; permitting the assistance of stakeholders in investigations; and allowing stakeholders to submit information to FRA to assist with the investigation. FRA anticipates the primary benefit of withdrawing the Rule will be the ability to re-assess and ultimately re-issue a rule addressing Section 22417 of IIJA and concerns raised by commenters. In the Rule, FRA estimated costs of approximately $1.0 million (Present Value (PV), <SU>5</SU> <FTREF/> 2-percent) over the ten-year analysis. By withdrawing the Rule, FRA estimates this will now incur a cost savings. Table 1 displays the cost savings of withdrawing the Rule from the Accident/Incident regulations in 49 CFR part 225. <FTNT> <SU>5</SU>  The present value of costs are calculated in this analysis. Present value provides a way of converting future costs into equivalent DOT-2100.6A-Rulemaking and Guidance (Jun. 7, 2021) available at <E T="03">https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf.</E> </FTNT> <GPOTABLE COLS="7" OPTS="L2,p7,7/8,i1" CDEF="s25,12,12,12,8,8,8"> <TTITLE>Table 1—Total Cost Savings of the Final Rule </TTITLE> [2023 Dollars]  <SU>6</SU> <CHED H="1">Year</CHED> Table may not sum due to rounding. </TNOTE> </GPOTABLE> <HD SOURCE="HD2"> B. Regulatory Flexibility Act <FTREF/> </HD> <FTNT> <SU>6</SU>  All figures are presented in a 2023 base year unless otherwise noted. </FTNT> The Regulatory Flexibility Act of 1980 ((RFA), 5 U.S.C. 601 <E T="03">et seq.</E> ) and E.O. 13272 (67 FR 53461, Aug. 16, 2002) require an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities ( <E T="03">i.e.,</E> small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is exempt from notice-and-comment rulemaking. <HD SOURCE="HD2">C. Paperwork Reduction Act</HD> There are no new or additional information collection requirements associated with this withdrawal. Therefore, FRA is not required to provide an estimate of a public reporting burden in this document. <HD SOURCE="HD2">D. Environmental Assessment</HD> FRA has evaluated this withdrawal in accordance with the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 <E T="03">et seq.</E> ), the Council of Environmental Quality's NEPA implementing regulations (40 CFR parts 1500 through 1508), FRA's regulations implementing NEPA (23 CFR part 771), and other environmental statutes, executive orders, and related regulatory requirements. FRA has determined that this withdrawal is categorically excluded from environmental review and therefore does not require the preparation of an environmental assessme ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 17k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━