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 July 22, 2025. </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, in accordance with section 22417 of the Infrastructure Investment and Jobs Act (IIJA), to 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 fully for how the Rule would 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 implement the IIJA mandate properly; (2) FRA's description of “stakeholders” fails to implement the IIJA mandate properly; (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 limits improperly 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. <HD SOURCE="HD1">III. Regulatory Impact and Notices</HD> <HD SOURCE="HD2">A. Executive Order (E.O.) 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures</HD> FRA has evaluated this final rule in accordance with E.O. 12866, Regulatory Planning and Review (58 FR 51735, Oct. 4, 1993), and DOT Order 2100.6B, Policies and Procedures for Rulemaking (Mar. 10, 2025). The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866. 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 in light of concerns raised by commenters. In the Rule, FRA estimated total costs of approximately $0.8 million (Present Value (PV)  <SU>3</SU> <FTREF/> in 2023 dollars, 7-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>3</SU>  The present value of costs is calculated at the time of analysis. Present value provides a way of converting future costs into equivalent dollars of the base year. The formula used to calculate this is: $1/(1+ r) <E T="53">t</E> , where “r” is the discount rate, and “t” is the base year. Discount rates of 3 percent and 7 percent are used in this analysis. </FTNT> <GPOTABLE COLS="6" OPTS="L2,nj,i1" CDEF="s50,12,12,12,12,12"> <TTITLE>Table 1—Total Cost Savings of the Final Rule </TTITLE> [2023 Dollars]  <SU>4</SU> <CHED H="1">Year</CHED> Table may not sum due to rounding. </TNOTE> </GPOTABLE> <HD SOURCE="HD2"> B. E.O. 14192 (Unleashing Prosperity Through Deregulation) <FTREF/> </HD> <FTNT> <SU>4</SU>  All figures are presented in a 2023 base year unless otherwise noted. </FTNT> E.O. 14192, Unleashing Prosperity Through Deregulation (90 FR 9065, Jan. 31, 2025), requires that for “each new [E.O. 14192 regulatory action] issued, at least ten prior regulations be identified for elimination.”  <SU>5</SU> <FTREF/> Implementation guidance for E.O. 14192 issued by OMB (Memorandum M-25-20, March 26, 2025) defines two different types of E.O. 14192 actions: an E.O. 14192 deregulatory action, and an E.O. 14192 regulatory action. <SU>6</SU> <FTREF/> <FTNT> <SU>5</SU>  Executive Office of the President. <E T="03">Executive Order 14192 of January 31, 2025. Unleashing Prosperity Through Deregulation.</E> 90 FR 9065-9067. Feb. 6, 2025. </FTNT> <FTNT> <SU>6</SU>  Executive Office of the President. Office of Management and Budget. <E T="03">Guidance Implementing Section 3 of Executive Order 14192, Titled “Unleashing Prosperity Through Deregulation.”</E> Memorandum M-25-20. Mar. 26, 2025. </FTNT> An E.O. 14192 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” This final rule is expected to have total costs less than zero, and therefore it would be considered an E.O. 14192 deregulatory action. <HD SOURCE="HD2">C. Regulatory Flexibility Act and E.O. 13272</HD> 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 to 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. FRA has determined that this rule is exempt from notice and comment rulemaking. Therefore, a regulatory flexibility analysis is not required for this rule. <HD SOURCE="HD2">D. Paperwork Red ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 15k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━