Federal Railroad Administration Accident/Incident Investigation Policy for Gathering Information and Consulting With Stakeholders, 79767-79777 [2024-22326]
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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations
quality/hospice/hope and the
information collection request (OMB
control number 0938–1153/Expiration
date: 1/31/2026) associated with this
rule found at https://www.cms.gov/
medicare/regulations-guidance/
legislation/paperwork-reduction-act1995/pra-listing.’’
b. Third column, lines 15 through 21,
the sentence that reads ‘‘This increase in
incremental burden is explained further
in the Regulatory Impact Analysis (RIA)
section of this Rule, and is also
discussed in detail in the Information
Collection Request and PRA
accompanying this Rule.’’ is corrected to
read ‘‘This increase in incremental
burden is explained further in the
Regulatory Impact Analysis (RIA)
section of this rule, and is also
discussed in detail in the information
collection request accompanying this
rule (OMB control number (0938–1153/
Expiration date: 1/31/2026).’’
11. On page 64262, in Table 18, titled
‘‘Summary of Changes in Burden’’, the
entry ‘‘HUV Timepoint’’ is corrected to
read ‘‘HUV Timepoints’’.
Elizabeth J. Gramling,
Executive Secretary to the Department,
Department of Health and Human Services.
[FR Doc. 2024–22495 Filed 9–27–24; 4:15 pm]
BILLING CODE 4120–01–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA–2024–0034]
RIN 2130–AC98
Federal Railroad Administration
Accident/Incident Investigation Policy
for Gathering Information and
Consulting With Stakeholders
Federal Railroad
Administration (FRA), U.S. Department
of Transportation (DOT).
ACTION: Direct final rule.
AGENCY:
FRA is taking direct final
action to amend its Accident/Incident
Regulations governing reporting,
classification, and investigations by
codifying FRA’s policy for gathering
information from, and consulting with,
stakeholders during an accident/
incident investigation.
DATES:
Effective date: This final rule is
effective on October 31, 2024, without
further notice unless FRA receives
adverse, substantive comment by
October 31, 2024. If FRA receives
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SUMMARY:
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adverse, substantive comment on this
direct final rule, it will publish a timely
withdrawal in the Federal Register
informing the public the rule will not
take effect.
ADDRESSES:
Comments: Comments related to
Docket No. FRA–2024–0034 may be
submitted by going to https://
www.regulations.gov and following the
online instructions for submitting
comments.
Instructions: All submissions must
include the agency name and docket
number or Regulatory Identification
Number (RIN) for this rulemaking (RIN
2130–AC98). Note that all comments
received will be posted without change
to https://www.regulations.gov
including any personal information
provided. Do not submit electronically
any information you consider to be
Confidential Business Information (CBI)
or other information whose disclosure is
restricted by statute. For additional
submission methods and general
guidance on making effective
comments, please visit https://
www.transportation.gov/regulations/
rulemaking-process.
Docket: For access to the docket to
read comments received, go to https://
www.regulations.gov and follow the
online instructions for accessing the
docket.
FOR FURTHER INFORMATION CONTACT: Rick
Huggins, Supervisory Railroad Security
Specialist, Office of Railroad Safety,
FRA, telephone: 202–465–6922 or
email: ricky.huggins@dot.gov; or Senya
Waas, Senior Attorney, Office of the
Chief Counsel, FRA, telephone: 202–
875–4158 or email: senyaann.waas@
dot.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to 49 U.S.C. 20103, FRA, as
delegated by the Secretary of
Transportation,1 has authority to
‘‘prescribe regulations and issue orders
for every area of railroad safety
supplementing laws and regulations in
effect on October 16, 1970.’’ As part of
its mission to enforce and improve rail
safety, FRA investigates rail
transportation accidents/incidents
which result in serious injury to an
individual or to railroad property. See
49 U.S.C. 20902. In Section 22417 of the
Infrastructure Investment and Jobs Act
(IIJA), Congress mandated that the
Secretary of Transportation (Secretary)
create a standard process for
investigators to use during accident and
incident investigations conducted under
1 49
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CFR 1.89(a); 49 U.S.C. 103(g).
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79767
this section. This process is to be used
to determine when it is appropriate and
the appropriate method for gathering
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
will also be used to determine when it
is 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. See Public Law 117–58,
section 22417, Nov. 15, 2021, 135 Stat.
748.
In developing this standard process,
the Secretary must also factor in ways
to maintain the confidentiality of any
entity if:
(1) The entity requests confidentiality;
(2) The entity was not involved in the
accident or incident; and
(3) Maintaining the entity’s
confidentiality does not adversely affect
FRA’s investigation.
The IIJA specifies that any process
developed under section 22417 applies
only to FRA investigations and does not
apply to any investigation carried out by
the National Transportation Safety
Board (NTSB).
In response to the IIJA mandate, FRA
worked with stakeholders, including
both labor and rail organizations, to
develop a Policy for Gathering
Information and Consulting with
Stakeholders (Policy Document). The
resulting Policy Document is available
on FRA’s website 2 and includes
guidelines for:
• When FRA will provide the
opportunity for stakeholders to
participate in FRA accident/incident
investigations;
• How FRA will notify stakeholders
of an accident investigation in which
they may participate;
• The expectations of stakeholders;
• How stakeholders can participate in
FRA’s accident investigation process;
• How stakeholders can submit
information to FRA to assist with the
investigation; and
• How confidentiality of individuals
and requests for confidentiality by
entities will be addressed and
maintained.
This rule codifies the process
contained in the Policy Document.
2 https://railroads.dot.gov/elibrary/bipartisaninfrastructure-law-section-22417-fra-accident-andincident-investigations-0.
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Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations
FRA is publishing this rule without a
prior proposed rule because it views
this as a noncontroversial action that
generally codifies FRA’s current process
for accident investigations. As noted
above, FRA has already worked with
stakeholders (both labor and the rail
organizations) to develop the Policy
Document which is posted on FRA’s
website. Accordingly, FRA anticipates
no adverse, substantive comment on any
of the provisions of the rule. If FRA
receives an adverse, substantive
comment on any of the provisions, it
will publish in the Federal Register a
timely withdrawal, informing the public
that the direct final rule will not take
effect.
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II. Section-by-Section Analysis
Part 225 Investigations
FRA is amending 49 CFR 225.31 by
consolidating existing paragraphs (a)
through (f) into numbered paragraphs
(a)(1) through (6) and adding new
paragraph (b) addressing stakeholder
participation in certain FRA accident/
incident investigations. FRA is also
revising existing paragraph (a) (now
paragraph (a)(1)) to clarify that FRA’s
policy is to investigate rail accidents/
incidents which result in the serious
injury or death of a railroad employee
or passenger and other accidents/
incidents where FRA determines
investigation would substantially serve
to promote railroad safety.
New paragraph (b) codifies the
process contained in the Policy
Document. Specifically, paragraph (b)
codifies the procedures for FRA
investigators to gather information from,
and consult with, various stakeholders
as part of certain accident/incident
investigations. Consistent with the
Policy Document, paragraph (b)
includes guidelines for when FRA will
provide stakeholders the opportunity to
participate in investigations, how FRA
will notify stakeholders of an accident
investigation, how stakeholders will
participate in the accident investigation
process, and how stakeholders can
submit information to FRA to assist
with the investigation.
Paragraph (b) explains that, based on
initial information, for accidents or
incidents involving an on-duty
employee fatality, an on-duty employee
amputation, or an on-duty employee
suffering a life-threatening injury), and
other accidents or incidents FRA’s Chief
Safety Officer (or their delegate)
determines appropriate, FRA will
provide an opportunity for stakeholder
involvement in the agency’s accident
investigation. Paragraph (b) further
provides that those stakeholders may
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include railroads, contractors,
employees, representatives of
employees, industry associations,
academia, the Volpe National
Transportation Systems Center, and
others, as FRA determines relevant.
Paragraphs (b)(1) through (6) set forth
the procedures both FRA and involved
stakeholders must follow when
conducting or participating in accident/
incident investigations under this
section.
Paragraph (b)(1) addresses FRA’s
initial accident response and
stakeholder notification. Specifically,
when initiating an accident
investigation under this section,
paragraph (b)(1) requires FRA to
identify stakeholders relevant to the
accident/incident.
Paragraph (b)(1)(i) requires FRA to
notify identified stakeholders when it is
initiating an investigation of an accident
or incident under paragraph (b), and
(b)(1)(ii) requires stakeholders interested
in participating in any such
investigation to communicate their
intent to participate to FRA’s Chief
Safety Officer (or their delegate) within
24 hours of being notified of the
investigation.
As soon as practicable after receipt of
a stakeholder’s notice of its intent to
participate in an FRA investigation,
paragraph (b)(1)(iii) requires FRA to
establish clear channels of
communication with stakeholders,
including, for example, email
correspondence, teleconferences, and
in-person meetings, to facilitate the
efficient transfer of information, and
consultation and coordination between
FRA and the stakeholders.
Paragraph (b)(2) establishes guidelines
for stakeholder access to an accident or
incident site, and includes rules that
FRA, the involved railroad(s), and other
stakeholders must follow. Specifically,
paragraph (b)(2)(i) provides that
stakeholders may only gain access to an
accident site through the incident
command (if the accident site is off
railroad property) or on-site railroad
personnel (if the accident site is onrailroad property). This paragraph
makes clear that when investigations
occur on railroad property, although
FRA encourages railroads to permit onsite access to all relevant stakeholders
participating in FRA’s investigation
process and expects that railroads will
grant such access, FRA cannot, at its
own discretion, provide stakeholders
access. If a railroad rule prohibits a
stakeholder from accessing an accident
site during FRA’s on-site investigation,
the railroad must promptly notify FRA
in writing of any such rule and FRA will
subsequently communicate the
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substance of that rule to all affected
stakeholders. Paragraph (b)(2)(i) further
provides that, in the event a railroad
rule prohibits a stakeholder from
accessing an accident site, FRA may
consult with that stakeholder by other
means (e.g., real time participation in
on-site meetings via video or conference
call, off-site in-person meetings, virtual
meetings, or phone calls).
Paragraph (b)(2)(ii) makes clear that
any stakeholders participating in FRA’s
accident/incident investigation process
under this paragraph are not actual or
implied agents of FRA and, as such,
FRA is not responsible for the safety of
the stakeholders.
Paragraph (b)(2)(iii) provides that FRA
will initiate its on-site investigation
when FRA staff arrive at an accident
site, and the FRA investigation team
will depart the accident site upon
completion of FRA’s on-site
investigation activities. FRA will not
await the arrival of stakeholder
representatives to begin its
investigation, and, if a stakeholder
timely notifies FRA’s of its intent to
participate but does not arrive at the
accident/incident scene during the
investigation, FRA may make a
reasonable effort, at its discretion, to
provide a verbal summary of the status
of the investigation before FRA departs
the scene.
Paragraph (b)(2)(iv) requires each
stakeholder representative participating
in FRA’s on-site investigation to contact
the FRA Inspector-in-Charge (IIC) upon
arrival at the accident site and provide
photo identification to the IIC. This
paragraph further explains that, at the
time of a stakeholder’s initial contact
with the IIC, the IIC or other FRA
representative will provide the
stakeholder with the name and contact
information for the incident commander
and other pertinent information related
to the accident known to the IIC at the
time.
Paragraph (b)(3) addresses stakeholder
participation in FRA’s off-site
information gathering and investigative
activities. Specifically, paragraph
(b)(3)(i) provides that FRA will establish
a means to receive and share documents
and information electronically with
stakeholders. As outlined in FRA’s
Policy for Gathering Information and
Consulting with Stakeholders, FRA has
developed a web-based document
sharing site for stakeholders to provide
relevant documents or information to
FRA and for FRA to share relevant
information with stakeholders.
Consistent with the published policy
statement, stakeholders submitting
documents and information to FRA’s
investigation team must submit those
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materials electronically through the site.
Protection of personal confidential
information and requests for protection
of confidential business information by
entities that have been granted by FRA
will apply to relevant documents
provided pursuant to this paragraph.
Paragraph (b)(3)(ii) provides that
stakeholders may request meetings with
representatives of other non-FRA
stakeholders and request that FRA
participate in such meetings. Although
FRA participation is not guaranteed, any
information pertinent to the
investigation made available through
these meetings must be documented and
submitted to FRA.
Paragraph (b)(3)(iii) provides that any
stakeholder seeking to provide
confidential information to FRA, must
coordinate with the IIC prior to
submittal of that information and
submit the information to FRA in
compliance with 49 CFR 209.11.
Paragraph (b)(4) addresses stakeholder
participation in FRA’s off-site analysis
portion of an FRA accident
investigation. This paragraph provides
that, when FRA deems appropriate, the
FRA investigation team will consult
with stakeholders to review the facts
gathered during the FRA’s investigation,
FRA’s analysis of those facts, and FRA’s
input and outputs of root cause
analyses. Stakeholders may offer input,
raise concerns, and participate in
discussions aimed at identifying root
causes and potential recommendations
to mitigate risk or prevent reoccurrence
of the accident/incident. Stakeholders
will not be included in any FRA
deliberations or consideration of
potential compliance or enforcement
issues related to an accident/incident
investigation.
Paragraph (b)(5) addresses the
confidentiality of certain information
related to accident or incident
investigations.
Paragraph (b)(5)(i) specifies that, in
accordance with all applicable laws and
regulations, FRA will maintain as
confidential any personally identifiable
information or sensitive security
information as defined in 49 CFR
1520.5, respectively. This paragraph
further requires that any documents or
information a stakeholder provides to
FRA as part of that stakeholder’s
participation in an accident/incident
under this section, and for which the
stakeholder requests confidentiality,
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must be submitted in accordance with
49 CFR 209.11. Moreover, FRA,
pursuant to 49 CFR part 209, will
maintain the confidentiality of any
stakeholder if: (1) such stakeholder
requests confidentiality; (2) such
stakeholder was not involved in the
accident or incident; and (3)
maintaining such stakeholder’s
confidentiality does not adversely affect
an FRA investigation.
Additionally, until FRA publishes its
report on an investigation, stakeholders
participating in the investigation may
not disseminate any information
(whether that information is
confidential or not), or comment on an
investigation to non-stakeholders
through any means, unless FRA’s Chief
Safety Officer determines that public
safety necessitates allowing the release
of certain information to nonstakeholders. FRA’s Chief Safety Officer
must make any such determination in
writing. This limitation on sharing
information is intended to limit
participating stakeholders from publicly
sharing information about the ongoing
investigation, to ensure FRA’s ability to
conduct the investigation. The
limitation does not limit participating
stakeholders from sharing information
with individuals within their
organization.
Paragraph (b)(6) provides that nothing
in this rule may be construed to reduce,
in any way, the protections afforded to
individuals who exercise the conduct
protected by 49 CFR 225.33, Internal
Control Plans, and 49 United States
Code (U.S.C.) 20109, Federal Railroad
Safety Act, Whistleblower Protections.
Paragraphs (d), (e), and (f) of this
section are being redesignated as
paragraphs (a)(2) through (6) although
the text remains substantively
unchanged.
III. Regulatory Impact and Notices
A. Executive Order 12866 as Amended
by Executive Order 14094 and DOT
Regulatory Policies and Procedures
This final rule is a non-significant
regulatory action within the meaning of
Executive Order (E.O.) 12866, as
amended by E.O. 14094, ‘‘Modernizing
Regulatory Review’’ 3 and DOT’s Order,
‘‘Rulemaking and Guidance
3 88 FR 21879 (Apr. 6, 2023) available at https://
www.federalregister.gov/documents/2023/04/11/
2023-07760/modernizing-regulatory-review.
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79769
Procedures,’’ DOT 2100.6A (June 7,
2021).4 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.
FRA is amending its Accident/
Incident Regulations, covering
reporting, classification, and
investigations, by codifying its policy
for gathering information from and
consulting with stakeholders during an
accident/incident investigation. FRA
has revised its accident investigation
process to establish 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
this rule will be the increased
information made available for
accident/incident investigations.
Involving stakeholders may result in the
accident investigation process receiving
more diverse perspectives and more
complete information, which will
provide accident investigators with
valuable information that could be
essential towards making well-informed
determinations. FRA also expects that
providing a means to submit
information to an accessible web-based
document sharing site will increase
transparency and efficiency in the
accident investigation process since
there will now be one central point for
all documentation related to each
accident investigation, and the
information will be accessible to all
necessary parties.
FRA estimates this direct final rule
will incur a cost of approximately $0.8
million (Present Value (PV),5 7-percent)
over the next ten years. Table 1 displays
the costs of this rule.
4 DOT–2100.6A-Rulemaking and Guidance (Jun.
7, 2021) available at https://
www.transportation.gov/sites/dot.gov/files/2021-08/
Final-for-OST-C-210407-001-signed.pdf.
5 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 https://www.transportation.gov/sites/dot.gov/
files/2021-08/Final-for-OST-C-210407-001signed.pdf.
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TABLE 1—TOTAL COSTS OF THE DIRECT FINAL RULE (2023 DOLLARS) 6
Total
stakeholder
costs
Year
Total
government
costs
Total costs
Discounted
7%
Discounted
3%
1 ...........................................................................................
2 ...........................................................................................
3 ...........................................................................................
4 ...........................................................................................
5 ...........................................................................................
6 ...........................................................................................
7 ...........................................................................................
8 ...........................................................................................
9 ...........................................................................................
10 .........................................................................................
$97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$117,675
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
$117,675
101,367
94,736
88,538
82,746
77,333
72,273
67,545
63,126
58,997
$117,675
105,304
102,237
99,259
96,368
93,561
90,836
88,190
85,622
83,128
Total ..............................................................................
979,220
114,622
1,093,842
824,336
962,180
Note: This table and some others throughout this analysis may not sum due to rounding.
Baseline Scenario
If this final rule were not
promulgated, FRA would conduct the
same number of annual accident/
incident investigations but would not
have a formal process to allow
stakeholders to submit relevant
documents to FRA related to an
accident/incident. The accident/
incident investigation process will now
include an opportunity for stakeholders
to participate in formal investigations.
The additional documentation from
stakeholders will create more
transparency and efficiency in the
accident investigation process.
Assumptions and Inputs
Unless otherwise specified, FRA
obtained these estimates from subject
matter experts within FRA’s Office of
Railroad Safety, who have over 50 years
of combined industry experience. This
analysis uses a 2023 base year. Numbers
are not discounted in the first year of
analysis.
The analysis associated with this final
rule is based on assumptions in Table 2.
TABLE 2—ASSUMPTIONS
Accident Investigation Notifications
Annual number of accidents/incidents per year for which FRA will require stakeholder notifications .........................
Time for Chief Safety Officer to provide each notification ............................................................................................
25 accidents.
0.25 hours.
Stakeholder Accident Investigation Representations
Percent of accident investigations with in-person representation .................................................................................
Round-trip travel time per day for union representative ................................................................................................
Time per day for accident/incident investigation ...........................................................................................................
Average number of union representatives per investigation .........................................................................................
Average number of investigation days per accident/incident ........................................................................................
Percent of accident/incident investigations that may overlap with National Transportation Safety Board investigations.
Percent of accident/incident investigations that may require a hotel stay ....................................................................
Stakeholder hotel and flight travel costs per investigation ............................................................................................
50 percent.
2 hours.
8 hours.
2 employees.
3 days.
25 percent.
50 percent.
1,500 dollars.
FRA-Provided Training and Outreach
FRA outreach training time ............................................................................................................................................
Number of annual FRA training sessions .....................................................................................................................
1 hour.
5 sessions.
Stakeholder Documentation Submissions to FRA
Percent of investigations where stakeholders submit documents to FRA ....................................................................
Time per investigation to gather and submit documents ..............................................................................................
100 percent.
4 hours.
FRA Review of Stakeholder Documentation
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Time for FRA employee to review documents ..............................................................................................................
2 hours.
Document Sharing Site Creation
Time to create document sharing site ...........................................................................................................................
Time for FRA Senior Leadership to review/approve document sharing site ................................................................
Time needed for IT developers to grant document sharing site access to stakeholders .............................................
6 All figures are presented in a 2023 base year
unless otherwise noted.
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64 hours.
16 hours.
1 hour.
Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations
information will be accessible to all
necessary parties. FRA acknowledges
that additional unquantified benefits
could occur as a result of this final rule.
Benefits
FRA anticipates the primary benefit of
this rule will be the increased
information made available for
accident/incident investigations. FRA
has not quantified the benefits of this
final rule, but FRA expects these
benefits should be considered when
discussing the effect of this final rule.
Involving stakeholders may result in the
accident investigation process receiving
more diverse perspectives and more
complete information, which will
provide accident investigators with
valuable information that could be
essential towards making well-informed
determinations. FRA also expects that
providing a means to submit
information to an accessible web-based
document sharing site will increase
transparency and efficiency in the
accident investigation process since
there will now be one central point for
all documentation related to each
accident investigation, and the
Costs
FRA estimates the costs that would be
associated with this final rule.
Specifically, there will be time and
travel-related costs to stakeholders who
participate in the accident/incident
investigations, as well as time spent in
their submission of documents to FRA.
There will also be costs to FRA related
to accident/incident investigation
notifications, training, and outreach,
reviewing stakeholder documentations,
and the creation of the web-based
document sharing site.
Accident Investigation Notifications
FRA will provide notifications to
stakeholders for each investigation of an
accident/incident that results in the
serious injury or death of a railroad
employee or passenger and other
79771
accidents/incidents for which FRA
determines investigation would
substantially serve to promote railroad
safety. The notifications will include
relevant details regarding the accident/
incident, and the scope of the
investigation. FRA estimates that
approximately 25 accident/incident
investigation notifications will be sent
annually, and each notification will take
approximately 15 minutes (0.25 hours)
to send. FRA’s Chief Safety Officer (or
their designee) will notify relevant
stakeholders when FRA is initiating an
accident investigation subject to this
rule.7 For purposes of this analysis, FRA
uses a burdened wage rate of $148.56 to
represent the wage for the Chief Safety
Officer.8 Using this information, FRA
estimates an annual cost of $929,
undiscounted, for accident investigation
notifications to be sent to stakeholders.
Table 3 displays the annual cost to FRA
for sending accident/incident
investigation notifications to
stakeholders.
TABLE 3—ANNUAL ACCIDENT INVESTIGATION NOTIFICATIONS
Number of annual notifications
Time per
notification
(hours)
Burdened
hourly wage
Annual
notification
cost
a
b
c
d=a×b×c
25 .................................................................................................................................................
0.25
$148.56
$929
In-Person Representation
person. Using this data, FRA estimates
stakeholders will attend 13 accident/
incident investigations annually.
However, FRA anticipates that about 25
percent of these accident investigations
may have some overlap with existing
NTSB accident investigations. Thus,
FRA estimates approximately 10 annual
FRA-led accident/incident
Upon receiving notification from
FRA, stakeholders are given the
opportunity to participate in each
accident/incident investigation. FRA
subject matter experts assume
stakeholders will attend approximately
50 percent of the investigations in-
investigations will have stakeholder inperson representation. FRA uses this
assumption to estimate travel and inperson investigation cost estimates in
the sections below. Table 4 displays the
number of annual FRA-led
investigations with in-person
stakeholder representation that will be
used for purposes of this analysis.
TABLE 4—ANNUAL FRA-LED INVESTIGATIONS WITH IN-PERSON STAKEHOLDER REPRESENTATION
Number of
annual
in-person
investigations
attended
Percentage of FRA-led
investigations
Number of
annual FRA-led
investigations
a
b
c=a×b
13 .................
75
10
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Travel Costs
For purposes of this analysis, FRA
estimates travel costs associated with
the FRA-led accident investigations.
7 In some situations, FRA’s Chief Safety Officer
may delegate this duty to other FRA personnel. In
these cases, the costs would be lower.
8 Senior Executive Service, average salary, 2023,
burdened at 75%. https://www.opm.gov/policy-
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FRA assumes stakeholders will send
senior-level representation for each
accident/incident investigation. FRA
uses a wage of $118.46 to represent the
burdened hourly wage for stakeholder
representation throughout this
analysis.9
data-oversight/pay-leave/salaries-wages/salarytables/23Tables/exec/html/ES.aspx.
9 STB 2023 wage rates for Group #100
(Executives, Officials, & Staff Assistants), $67.69,
burdened at 75-percent. Surface Transportation
Board: 2023 Quarterly Wage A&B Data, annual data.
https://www.stb.gov/reports-data/economic-data/
quarterly-wage-ab-data/.
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FRA assumes stakeholders would
drive to the investigation location daily,
and half of the stakeholders would incur
additional hotel and flight expenses.
FRA assumes two stakeholder
representatives would attend each
investigation for purposes of this
analysis.
FRA estimates all of the annual FRAled investigations will require
stakeholders to drive to and from the
investigation location each day, either
from home or from a hotel. FRA
assumes, on average, each investigation
will take approximately three working
days (or 24 hours total) for purposes of
this analysis. FRA estimates it will take
stakeholders approximately one hour to
drive each one-way trip (or two hours
daily). Table 5 displays the travel costs
associated with stakeholders commuting
daily to/from the investigation site.
TABLE 5—STAKEHOLDER DRIVING COSTS
Number of
annual
investigations
Stakeholder travel time
per investigation
(hours)
Number of stakeholders
Burdened hourly wage
Travel (driving) costs
a
b
c
d
e=a×b×c×d
10 .................
6
2
$118.46
$14,215
FRA estimates half (5) of the annual
FRA-led investigations may require
stakeholders to pay for flight and hotel
travel expenses. FRA assumes travel
costs for stakeholders would accrue to
approximately $1,500 per investigation.
Table 6 displays the travel costs
associated with stakeholders who may
require flight and hotel expenses.
TABLE 6—STAKEHOLDER HOTEL AND FLIGHT COSTS
Number of
annual
investigations
with flight
and hotel
Stakeholder flight and hotel costs per
investigation
Number of stakeholders
Annual flight and hotel costs
a
b
c
d=a×b×c
5 ...................
$1,500
2
$15,000
Using the information above, FRA
estimates an annual stakeholder travel
cost of $29,215, undiscounted, for this
rule.
Accident Investigation Participation
FRA estimates stakeholders will
participate in 10 FRA-led accident/
incident investigations each year. FRA
estimates, on average, each investigation
will take 24 hours (three working days)
to complete. Using this information,
FRA estimates an annual cost of $56,861
for stakeholders to participate in FRAled investigations, shown in Table 7.
TABLE 7—ANNUAL COST FOR STAKEHOLDER INVESTIGATION PARTICIPATION
Number of
annual
FRA-led
investigations
Average
number of
hours per
investigation
Number of stakeholders
Burdened hourly wage
Annual cost
a
b
c
d
e=a×b×c×d
10 .................
24
2
$118.46
$56,861
Documentation Submission
FRA estimates stakeholders will
submit documentation for each
accident/incident investigation,
regardless of whether the stakeholder
participates in-person. FRA estimates it
will take stakeholders approximately
four hours to gather and submit relevant
documents to FRA for the investigation
process. FRA estimates an annual cost
of $11,846 for stakeholders to submit
documents to FRA for investigations,
shown in Table 8.
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TABLE 8—ANNUAL COST FOR STAKEHOLDERS TO SUBMIT DOCUMENTS TO FRA
Number of
annual submissions
Time per
submission
(hours)
Burdened hourly wage
Annual
submission
cost
a
b
c
d=a×b×c
25 .................
4
$118.46
$11,846
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FRA estimates, upon receiving the
documents from stakeholders, a railroad
safety specialist will conduct a review
of the package. FRA estimates that each
submission package will take
approximately two hours to review. For
purposes of this analysis, FRA uses a
burdened hourly wage rate of $126.21 to
represent the wage for a railroad safety
specialist.10 FRA estimates an annual
cost of $6,311 for FRA to review the
documents submitted by stakeholders,
shown in Table 9.
TABLE 9—FRA DOCUMENTATION REVIEW
Number of annual submission reviews
Time per
review
(hours)
Burdened
hourly wage
Annual review
cost
a
b
c
d=a×b×c
25 .................................................................................................................................................
2
$126.21
$6,311
FRA Outreach to Stakeholders
FRA anticipates multiple occasions
annually where FRA would meet with
labor unions and stakeholder groups to
ensure they understand the
amendments to the accident
investigation process. FRA estimates
five meetings would occur annually
where a railroad safety specialist would
provide outreach to stakeholders and
answer questions they may have
regarding the amended process. FRA
estimates each session would take
approximately one hour to conduct.
FRA uses this information to estimate
an annual cost of $631 for stakeholder
outreach, shown in Table 10.
TABLE 10—FRA OUTREACH COSTS
Number of
FRA outreach
sessions
Time per
session
(hours)
Burdened hourly wage
Annual
outreach cost
a
b
c
d=a×b×c
5 ...................
1
$126.21
$631
Web-Based Document Sharing Site
Creation
FRA has developed a web-based
document sharing site as a means for
stakeholders to submit documents to
FRA as a part of the accident/incident
investigation process. FRA anticipates
stakeholders will utilize this site as the
primary means of document submission
and sharing of information for future
accident investigations.11
The web-based document sharing site
was created internally by FRA’s
information technology (IT) office. The
total project development time was 80
hours. The project development process
was split between both an IT developer
creating the site and FRA senior
leadership reviewing and approving the
site before it was finalized. FRA
estimates it took 64 hours for the IT
developer to create and finalize the webbased document sharing site, and it took
16 hours for FRA senior leadership to
review and approve it. For purposes of
this analysis, FRA uses a burdened wage
rate of $106.80 to estimate the costs of
the web-based document sharing site
creation.12 Table 11 displays the onetime costs of the web-based document
sharing site.
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TABLE 11—WEB-BASED DOCUMENT SHARING SITE CREATION
Web-based
document
sharing site
development
time
(hours)
Burdened
wage rate
Web-based
document
sharing site
cost
a
b
c=a×b
IT Specialist .................................................................................................................................
SES Review/Approval ..................................................................................................................
64
16
$106.80
148.56
$6,835
2,377
Total ......................................................................................................................................
80
........................
9,212
FRA estimates all 25 annual accident
investigations will have documentation
submitted by the stakeholders,
regardless of whether or not the
stakeholder participates in-person. FRA
estimates stakeholders would need to
10 Washington, DC Locality Pay, 2023, GS–14,
Step 5 ($150,016), divided by 2,080 hours,
burdened at 75%. https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/salarytables/23Tables/html/DCB.aspx.
11 Although FRA anticipates the web-based
document sharing site as the primary means to
submit/share information relevant to accident/
incident investigations, stakeholders may still
submit relevant information to FRA without using
the site.
12 Washington, DC Locality Pay, 2023, GS–13,
Step 5 ($126,949), divided by 2,080 hours,
burdened at 75%. https://www.opm.gov/policydata-oversight/pay-leave/salaries-wages/salarytables/23Tables/html/DCB.aspx.
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stakeholder upon receiving the
necessary information. Table 12
displays the annual cost to FRA for
granting stakeholders access to the webbased document sharing site.
to FRA for granting access to
stakeholders once this information has
been submitted. FRA estimates it will
take approximately one hour for FRA’s
IT developer to grant access to each
submit minimal contact information to
FRA to be granted access to the webbased document sharing site. FRA
considers these costs to be de minimis.
However, FRA does account for the cost
TABLE 12—FRA COSTS FOR GRANTING STAKEHOLDERS DOCUMENT SHARING SITE ACCESS
Number of
annual stakeholder access
requests
Time to grant access
(hours)
Burdened wage rate
Annual access cost
a
b
c
d=a×b×c
25 .................
1
$106.80
$2,670
Total Costs
FRA estimates a total 10-year cost of
$0.7 million (PV, 7-percent) to
stakeholders for this rule. Table 13
displays the total costs to stakeholders
for this final rule.
TABLE 13—TOTAL 10-YEAR COST TO STAKEHOLDERS
Year
Travel
Investigation
participation
Document
submission
Total stakeholder costs
Discounted
7%
Discounted
3%
1 ...............................................................
2 ...............................................................
3 ...............................................................
4 ...............................................................
5 ...............................................................
6 ...............................................................
7 ...............................................................
8 ...............................................................
9 ...............................................................
10 .............................................................
$ 29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
29,215
$ 56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
56,861
$ 11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
11,846
$ 97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$ 97,922
91,516
85,529
79,934
74,704
69,817
65,250
60,981
56,991
53,263
$ 97,922
95,070
92,301
89,613
87,002
84,468
82,008
79,620
77,301
75,049
Total ..................................................
292,150
568,610
118,460
979,220
735,907
860,354
FRA estimates a total 10-year cost of
$0.1 million (PV, 7-percent) to FRA for
this rule. Table 14 displays the total
costs to FRA for this final rule.
TABLE 14—TOTAL 10-YEAR COST TO FRA
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Year
Outreach/
training
Notifications
Documentation
review
Web-based
document
sharing site
Total
government
costs
Discounted
7%
Discounted
3%
1 ...................................
2 ...................................
3 ...................................
4 ...................................
5 ...................................
6 ...................................
7 ...................................
8 ...................................
9 ...................................
10 .................................
$929
929
929
929
929
929
929
929
929
929
$631
631
631
631
631
631
631
631
631
631
$6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
6,311
$11,882
2,670
2,670
2,670
2,670
2,670
2,670
2,670
2,670
2,670
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$19,753
9,851
9,207
8,605
8,042
7,516
7,024
6,564
6,135
5,734
$19,753
10,234
9,936
9,647
9,366
9,093
8,828
8,571
8,321
8,079
Total ......................
9,290
6,310
63,110
35,912
114,622
88,431
101,828
FRA estimates a total 10-year cost of
$0.8 million (PV, 7-percent) for this
direct final rule, shown in Table 15.
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79775
TABLE 15—10-YEAR TOTAL COSTS
Total
stakeholder
costs
Year
Total costs
Discounted
7%
Discounted
3%
1 ...........................................................................................
2 ...........................................................................................
3 ...........................................................................................
4 ...........................................................................................
5 ...........................................................................................
6 ...........................................................................................
7 ...........................................................................................
8 ...........................................................................................
9 ...........................................................................................
10 .........................................................................................
$97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
97,922
$19,753
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
10,541
$117,675
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
108,463
$117,675
101,367
94,736
88,538
82,746
77,333
72,273
67,545
63,126
58,997
$117,675
105,304
102,237
99,259
96,368
93,561
90,836
88,190
85,622
83,128
Total ..............................................................................
979,220
114,622
1,093,842
824,336
962,180
B. Regulatory Flexibility Act
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Total
government
costs
The Regulatory Flexibility Act of 1980
((RFA), 5 U.S.C. 601 et seq.) and E.O.
13272 (67 FR 53461, Aug. 16, 2002)
require agency review of proposed and
final rules to assess their impacts on
small entities. When an agency issues a
proposed rule, the RFA requires the
agency to ‘‘prepare and make available
for public comment an initial regulatory
flexibility analysis’’ which will
‘‘describe the impact of the proposed
rule on small entities.’’ 5 U.S.C. 603(a).
Section 605 of the RFA allows an
agency to certify a rule, in lieu of
preparing an analysis, if the proposed
rulemaking is not expected to have a
significant economic impact on a
substantial number of small entities.
Although this final rule will impact
small entities, it is entirely voluntary for
those entities to participate, imposing
only de minimis additional burdens or
benefits on regulated entities. The
regulation would therefore not have a
significant impact on a substantial
number of small entities. Pursuant to 5
U.S.C. 601(b), the FRA Administrator
hereby certifies that this final rule will
not have a significant impact on a
substantial number of small entities.
In addition, FRA has determined the
RFA does not apply to this rulemaking.
The Small Business Administration’s A
Guide for Government Agencies: How to
Comply with the Regulatory Flexibility
Act (2017), provides that if, under either
the APA or any rule of general
applicability governing federal grants to
state and local governments, the agency
is required to publish a general notice
of proposed rulemaking (NPRM), the
RFA must be considered. See 5 U.S.C.
604(a). If an NPRM is not required, the
RFA does not apply. Therefore, because
FRA is not required to publish an
NPRM, the RFA does not apply.
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C. Paperwork Reduction Act
There are no new or additional
information collection requirements
associated with this final rule.
Therefore, FRA is not required to
provide an estimate of a public
reporting burden in this document.
D. Environmental Assessment
FRA has evaluated this final rule in
accordance with the National
Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.), 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 rule is categorically excluded from
environmental review and therefore
does not require the preparation of an
environmental assessment (EA) or
environmental impact statement (EIS).
Categorical exclusions (CEs) are actions
identified in an agency’s NEPA
implementing procedures that do not
normally have a significant impact on
the environment and therefore do not
require either an EA or EIS. Specifically,
FRA has determined that this final rule
is categorically excluded from detailed
environmental review.
This rulemaking would not directly or
indirectly impact any environmental
resources and would not result in
significantly increased emissions of air
or water pollutants or noise. In
analyzing the applicability of a CE, FRA
must also consider whether unusual
circumstances are present that would
warrant a more detailed environmental
review. FRA has concluded that no such
unusual circumstances exist with
respect to this final rule and it meets the
requirements for categorical exclusion.
Pursuant to Section 106 of the
National Historic Preservation Act and
its implementing regulations, FRA has
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determined this undertaking has no
potential to affect historic properties.
FRA has also determined that this
rulemaking does not approve a project
resulting in a use of a resource protected
by Section 4(f). Further, FRA reviewed
this final rulemaking and found it
consistent with E.O. 14008, ‘‘Tackling
the Climate Crisis at Home and
Abroad.’’
E. Environmental Justice
Executive Order 14096, ‘‘Revitalizing
Our Nation’s Commitment to
Environmental Justice for All,’’ which
expands on E.O. 12898, ‘‘Federal
Actions to Address Environmental
Justice in Minority Populations and
Low-Income Populations,’’ requires
DOT agencies to achieve environmental
justice as part of their mission by
identifying and addressing, as
appropriate, disproportionately high
and adverse human health or
environmental effects, including
interrelated social and economic effects,
of their programs, policies, and
activities on minority populations and
low-income populations. DOT Order
5610.2C (‘‘U.S. Department of
Transportation Actions to Address
Environmental Justice in Minority
Populations and Low-Income
Populations’’) instructs DOT agencies to
address compliance with E.O. 12898
and requirements within the DOT Order
5610.2C in rulemaking activities, as
appropriate, and also requires
consideration of the benefits of
transportation programs, policies, and
other activities where minority
populations and low-income
populations benefit, at a minimum, to
the same level as the general population
as a whole when determining impacts
on minority and low-income
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populations.13 FRA has evaluated this
final rule under Executive Orders
12898, 14096, and DOT Order 5610.2C,
and has determined it will not cause
disproportionate and adverse human
health and environmental effects on
communities with environmental justice
concerns.
F. Federalism Implications
This final rule will not have a
substantial effect on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Thus, in
accordance with E.O. 13132,
‘‘Federalism’’ (64 FR 43255, Aug. 10,
1999), preparation of a Federalism
Assessment is not warranted.
This final rule will not result in the
expenditure, in the aggregate, of
$100,000,000 or more, adjusted for
inflation, in any one year by State, local,
or Indian Tribal governments, or the
private sector. Thus, consistent with
section 202 of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104–4, 2
U.S.C. 1532), FRA is not required to
prepare a written statement detailing the
effect of such an expenditure.
H. Energy Impact
E.O. 13211 requires Federal agencies
to prepare a Statement of Energy Effects
for any ‘‘significant energy action.’’ 66
FR 28355 (May 22, 2001). FRA has
evaluated this rule in accordance with
E.O. 13211 and determined that this
rule is not a ‘‘significant energy action’’
within the meaning of E.O. 13211.
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I. Executive Order 13175 (Tribal
Consultation)
FRA has evaluated this final rule in
accordance with the principles and
criteria contained in E.O. 13175,
‘‘Consultation and Coordination with
Indian Tribal Governments,’’ dated
November 6, 2000. The final rule would
not have a substantial direct effect on
one or more Indian tribes, would not
impose substantial direct compliance
costs on Indian tribal governments, and
would not preempt tribal laws.
Therefore, the funding and consultation
requirements of E.O. 13175 do not
apply, and a tribal summary impact
statement is not required.
13 E.O. 14096 ‘‘Revitalizing Our Nation’s
Commitment to Environmental Justice,’’ issued on
April 26, 2023, supplements E.O. 12898, but is not
currently referenced in DOT Order 5610.2C.
16:06 Sep 30, 2024
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The Trade Agreement Act of 1979
prohibits Federal agencies from
engaging in any standards or related
activities that create unnecessary
obstacles to the foreign commerce of the
United States. Legitimate domestic
objectives, such as safety, are not
considered unnecessary obstacles. The
statute also requires consideration of
international standards and where
appropriate, that they be the basis for
U.S. standards. This rulemaking is
purely domestic in nature and is not
expected to affect trade opportunities
for U.S. firms doing business overseas or
for foreign firms doing business in the
United States.
List of Subjects in 49 CFR Part 225
G. Unfunded Mandates Reform Act of
1995
VerDate Sep<11>2014
J. International Trade Impact
Assessment
Investigations, Penalties, Railroad
safety, Reporting and recordkeeping
requirements.
In consideration of the foregoing, FRA
amends part 225 of chapter II, subtitle
B of title 49, Code of Federal
Regulations as follows:
PART 225—RAILROAD ACCIDENTS/
INCIDENTS: REPORTS
CLASSIFICATION, AND
INVESTIGATIONS
1. The authority citation for part 225
continues to read as follows:
■
Authority: 49 U.S.C. 103, 322(a), 20103,
20107, 20901–20902, 21301, 21302, 21311;
28 U.S.C. 2461 note; and 49 CFR 1.89.
2. Revise and republish § 225.31 to
read as follows:
■
§ 225.31
Investigations.
(a) General. (1) It is the policy of FRA
to investigate rail transportation
accidents/incidents which result in the
serious injury or death of a railroad
employee or passenger and other
accidents/incidents, the investigation of
which FRA determines would
substantially serve to promote railroad
safety.
(2) FRA representatives are authorized
to investigate accidents/incidents and
have been issued credentials
authorizing them to inspect railroad
records and properties. They are
authorized to obtain all relevant
information concerning accidents/
incidents under investigation, to make
inquiries of persons having knowledge
of the facts, conduct interviews and
inquiries, and attend as an observer,
hearings conducted by railroads. When
necessary to carry out an investigation,
the FRA may authorize the issuance of
subpoenas to require the production of
records and the giving of testimony.
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(3) Whenever necessary, the FRA will
schedule a public hearing before an
authorized hearing officer, in which
event testimony will be taken under
oath, a record made, and opportunity
provided to question witnesses.
(4) When necessary in the conduct of
an investigation, the Federal Railroad
Administrator may require autopsies
and other tests of the remains of railroad
employees who die as a result of an
accident/incident.
(5) Information obtained through FRA
accident investigations may be
published in public reports or used for
other purposes FRA deems to be
appropriate.
(6) Section 20903 of title 49 of the
United States Code provides that no part
of a report of an accident investigation
under section 20902 of title 49 of the
United States Code may be admitted as
evidence or used for any purpose in any
suit or action for damages growing out
of any matter mentioned in the accident
investigation report.
(b) Stakeholder participation. For
accidents or incidents involving, based
on initial information, an on-duty
employee fatality, an on-duty employee
amputation, or an on-duty employee
suffering life-threatening injuries, and
other accidents or incidents FRA’s Chief
Safety Officer (or their delegate)
determines appropriate, FRA will
provide an opportunity for stakeholder
involvement in FRA’s accident
investigation. Stakeholders may
include, but are not limited to, railroads,
contractors, employees, representatives
of employees, industry associations,
academia, the Volpe Center, and any
other persons or entities FRA
determines to be relevant. FRA,
involved stakeholders, and railroads
whose property is the site of an
investigation, shall adhere to the
following procedures and limits when
conducting or participating in accident/
incident investigations under this
section:
(1) Initial response and stakeholder
notification. When initiating an
investigation into an accident under this
paragraph, FRA will identify
stakeholders relevant to the accident or
incident.
(i) FRA will promptly notify, in
writing where practicable, the identified
stakeholders of the agency’s initiation of
an investigation into an accident or
incident. Such notifications will include
the known relevant details regarding the
incident and the expected scope of the
investigation.
(ii) Stakeholders interested in
participating in the investigation must
communicate their intent to participate
to FRA’s Chief Safety Officer (or their
E:\FR\FM\01OCR1.SGM
01OCR1
khammond on DSKJM1Z7X2PROD with RULES
Federal Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 / Rules and Regulations
delegate) within 24 hours of the
notification under paragraph (b)(1)(i) of
this section.
(iii) As soon as practicable, upon
receipt of stakeholders’ notice of intent
to participate in an investigation, FRA
shall establish clear channels of
communication with the identified
stakeholders. These channels may
include, but are not limited to, email
correspondence, teleconferences, inperson meetings, and online forums.
(2) On-site investigation. (i)
Stakeholders may only gain access to
the accident site through the incident
command or on-site railroad personnel.
When investigations occur on railroad
property, FRA encourages railroads to
permit on-site access to stakeholders
participating in FRA’s investigation
process and expects that railroads will
grant such access. However, FRA
cannot, at its own discretion, provide
stakeholders’ access to an accident site.
If a railroad rule prohibits a stakeholder
from accessing the accident site during
FRA’s on-site investigation, a railroad
must promptly notify FRA in writing of
any such rule, and FRA will
subsequently communicate the
substance of the rule to all affected
stakeholders. In these instances, as
practicable, FRA may consult with any
affected stakeholder by other means
(e.g., through real-time participation in
on-site meetings via video or conference
call, off-site in-person meetings, virtual
meetings, or phone calls).
(ii) Stakeholders are not actual or
implied agents of FRA. FRA is not
responsible for the safety of
stakeholders.
(iii) FRA will initiate its on-site
investigation when FRA staff arrive at
an accident site, and the FRA
investigation team will depart the
accident site upon completion of FRA’s
on-site investigation activities. FRA will
not wait for participating stakeholders
to arrive at the accident site to begin its
investigation, but FRA will make a
reasonable effort to provide a
stakeholder that does not arrive at the
accident site during the investigation a
verbal summary of the status of the
investigation. As needed, FRA will
advise stakeholder representatives when
the FRA team expects to leave the
accident site.
(iv) Each stakeholder representative
participating in FRA’s on-site
investigation must contact the FRA
Inspector-in-Charge (IIC) upon arrival at
the accident site and provide photo
identification to the IIC. At the time of
a stakeholder’s initial contact with the
IIC, the IIC or other FRA representatives
will provide the stakeholder with the
name and contact information for the
VerDate Sep<11>2014
16:06 Sep 30, 2024
Jkt 265001
incident commander and other
pertinent information related to the
accident known to the IIC at the time.
As needed, FRA’s investigation team
should coordinate meeting(s) with
stakeholders and provide a verbal
summary of the status of the
investigation as stakeholders arrive to
the accident site.
(3) Off-site information gathering and
investigative activities. (i) When
conducting accident/incident
investigations under this paragraph, to
the extent practicable, FRA will
establish a means to receive and share
documents and information with
Stakeholders electronically. Any
documents or information stakeholders
submit to FRA’s investigation team must
be provided to FRA through such
established system. With the exception
of confidential information or
documents or information appropriately
submitted consistent with paragraph (4)
of this section, FRA may share
documents relevant to its investigation
with Stakeholders.
(ii) Stakeholders may request
meetings with representatives of other
non-FRA stakeholders and request that
FRA participate in such meetings. FRA
participation is not guaranteed, and any
information pertinent to the
investigation made available through
these meetings must be documented and
submitted through the established
electronic information sharing system.
(iii) Any stakeholder seeking to
provide confidential information to
FRA, or to maintain the confidentiality
of such stakeholder’s identity, must
coordinate with the IIC prior to
submittal of that information and
submit the information to FRA in
compliance with 49 CFR 209.11.
(4) Analysis activities. As appropriate,
the FRA investigation team will consult
with stakeholders to review the facts
gathered during the team’s investigation
of the accident/incident, FRA’s analysis
of those facts, and FRA’s inputs and
outputs of root cause analyses.
Stakeholders may offer input, raise
concerns, and participate in discussions
aimed at identifying root causes and
potential recommendations to mitigate
risk or prevent reoccurrence of the
accident/incident. Stakeholders will not
be included in FRA deliberations or
consideration of potential compliance or
enforcement issues related to an
accident/incident investigation.
(5) Confidentiality. (i) FRA recognizes
the sensitive nature of certain
information involved in accident or
incident investigations. In accordance
with applicable laws and regulations,
FRA will maintain as confidential any
personally identifiable information or
PO 00000
Frm 00047
Fmt 4700
Sfmt 4700
79777
sensitive security information as
defined in 2 CFR 200.1 and 49 CFR
1520.5, respectively. Any other
documents or information a
participating stakeholder provides to
FRA as part of that stakeholder’s
participation in an accident/incident
investigation under this section, and for
which a stakeholder claims
confidentiality, must be submitted in
accordance with 49 CFR 209.11.
(ii) FRA shall maintain the
confidentiality of any stakeholder if:
(A) such stakeholder requests
confidentiality;
(B) such stakeholder was not involved
in the accident or incident; and
(C) maintaining such stakeholder’s
confidentiality does not adversely affect
an FRA investigation.
(iii) Until FRA publishes its report on
the investigation, a stakeholder
participating in an investigation may
not disseminate any information or
comment on an investigation to nonstakeholders through any means. Only
when necessary for public safety, and
only with the FRA Chief Safety Officer’s
written permission, may stakeholders
release information to non-stakeholders
if the information is factual, neutral and
objective in tone, and without purported
FRA characterization of the matter’s
contribution to the underlying accident/
incident.
(6) Whistleblower protections.
Nothing in this paragraph may be
construed to reduce in any way the
protections afforded to individuals who
exercise the conduct protected by 49
CFR 225.33, Internal Control Plans, and
49 United States Code (U.S.C.) § 20109,
Federal Railroad Safety Act,
Whistleblower Protections.
Issued in Washington, DC.
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2024–22326 Filed 9–30–24; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 217
[Docket No. 240524–0146]
RIN 0648–BL96
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the New
England Wind Project, Offshore
Massachusetts; Correction
National Marine Fisheries
Service (NMFS), National Oceanic and
AGENCY:
E:\FR\FM\01OCR1.SGM
01OCR1
]]>Agencies
[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Rules and Regulations]
[Pages 79767-79777]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22326]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA-2024-0034]
RIN 2130-AC98
Federal Railroad Administration Accident/Incident Investigation
Policy for Gathering Information and Consulting With Stakeholders
AGENCY: Federal Railroad Administration (FRA), U.S. Department of
Transportation (DOT).
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: FRA is taking direct final action to amend its Accident/
Incident Regulations governing reporting, classification, and
investigations by codifying FRA's policy for gathering information
from, and consulting with, stakeholders during an accident/incident
investigation.
DATES:
Effective date: This final rule is effective on October 31, 2024,
without further notice unless FRA receives adverse, substantive comment
by October 31, 2024. If FRA receives adverse, substantive comment on
this direct final rule, it will publish a timely withdrawal in the
Federal Register informing the public the rule will not take effect.
ADDRESSES:
Comments: Comments related to Docket No. FRA-2024-0034 may be
submitted by going to https://www.regulations.gov and following the
online instructions for submitting comments.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (RIN 2130-AC98). Note that all comments received will be
posted without change to https://www.regulations.gov including any
personal information provided. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute. For
additional submission methods and general guidance on making effective
comments, please visit https://www.transportation.gov/regulations/rulemaking-process.
Docket: For access to the docket to read comments received, go to
https://www.regulations.gov and follow the online instructions for
accessing the docket.
FOR FURTHER INFORMATION CONTACT: Rick Huggins, Supervisory Railroad
Security Specialist, Office of Railroad Safety, FRA, telephone: 202-
465-6922 or email: [email protected]; or Senya Waas, Senior
Attorney, Office of the Chief Counsel, FRA, telephone: 202-875-4158 or
email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to 49 U.S.C. 20103, FRA, as delegated by the Secretary of
Transportation,\1\ has authority to ``prescribe regulations and issue
orders for every area of railroad safety supplementing laws and
regulations in effect on October 16, 1970.'' As part of its mission to
enforce and improve rail safety, FRA investigates rail transportation
accidents/incidents which result in serious injury to an individual or
to railroad property. See 49 U.S.C. 20902. In Section 22417 of the
Infrastructure Investment and Jobs Act (IIJA), Congress mandated that
the Secretary of Transportation (Secretary) create a standard process
for investigators to use during accident and incident investigations
conducted under this section. This process is to be used to determine
when it is appropriate and the appropriate method for gathering
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 will also be used to
determine when it is 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. See Public Law 117-58, section 22417,
Nov. 15, 2021, 135 Stat. 748.
---------------------------------------------------------------------------
\1\ 49 CFR 1.89(a); 49 U.S.C. 103(g).
---------------------------------------------------------------------------
In developing this standard process, the Secretary must also factor
in ways to maintain the confidentiality of any entity if:
(1) The entity requests confidentiality;
(2) The entity was not involved in the accident or incident; and
(3) Maintaining the entity's confidentiality does not adversely
affect FRA's investigation.
The IIJA specifies that any process developed under section 22417
applies only to FRA investigations and does not apply to any
investigation carried out by the National Transportation Safety Board
(NTSB).
In response to the IIJA mandate, FRA worked with stakeholders,
including both labor and rail organizations, to develop a Policy for
Gathering Information and Consulting with Stakeholders (Policy
Document). The resulting Policy Document is available on FRA's website
\2\ and includes guidelines for:
---------------------------------------------------------------------------
\2\ https://railroads.dot.gov/elibrary/bipartisan-infrastructure-law-section-22417-fra-accident-and-incident-investigations-0.
---------------------------------------------------------------------------
When FRA will provide the opportunity for stakeholders to
participate in FRA accident/incident investigations;
How FRA will notify stakeholders of an accident
investigation in which they may participate;
The expectations of stakeholders;
How stakeholders can participate in FRA's accident
investigation process;
How stakeholders can submit information to FRA to assist
with the investigation; and
How confidentiality of individuals and requests for
confidentiality by entities will be addressed and maintained.
This rule codifies the process contained in the Policy Document.
[[Page 79768]]
FRA is publishing this rule without a prior proposed rule because
it views this as a noncontroversial action that generally codifies
FRA's current process for accident investigations. As noted above, FRA
has already worked with stakeholders (both labor and the rail
organizations) to develop the Policy Document which is posted on FRA's
website. Accordingly, FRA anticipates no adverse, substantive comment
on any of the provisions of the rule. If FRA receives an adverse,
substantive comment on any of the provisions, it will publish in the
Federal Register a timely withdrawal, informing the public that the
direct final rule will not take effect.
II. Section-by-Section Analysis
Part 225 Investigations
FRA is amending 49 CFR 225.31 by consolidating existing paragraphs
(a) through (f) into numbered paragraphs (a)(1) through (6) and adding
new paragraph (b) addressing stakeholder participation in certain FRA
accident/incident investigations. FRA is also revising existing
paragraph (a) (now paragraph (a)(1)) to clarify that FRA's policy is to
investigate rail accidents/incidents which result in the serious injury
or death of a railroad employee or passenger and other accidents/
incidents where FRA determines investigation would substantially serve
to promote railroad safety.
New paragraph (b) codifies the process contained in the Policy
Document. Specifically, paragraph (b) codifies the procedures for FRA
investigators to gather information from, and consult with, various
stakeholders as part of certain accident/incident investigations.
Consistent with the Policy Document, paragraph (b) includes guidelines
for when FRA will provide stakeholders the opportunity to participate
in investigations, how FRA will notify stakeholders of an accident
investigation, how stakeholders will participate in the accident
investigation process, and how stakeholders can submit information to
FRA to assist with the investigation.
Paragraph (b) explains that, based on initial information, for
accidents or incidents involving an on-duty employee fatality, an on-
duty employee amputation, or an on-duty employee suffering a life-
threatening injury), and other accidents or incidents FRA's Chief
Safety Officer (or their delegate) determines appropriate, FRA will
provide an opportunity for stakeholder involvement in the agency's
accident investigation. Paragraph (b) further provides that those
stakeholders may include railroads, contractors, employees,
representatives of employees, industry associations, academia, the
Volpe National Transportation Systems Center, and others, as FRA
determines relevant.
Paragraphs (b)(1) through (6) set forth the procedures both FRA and
involved stakeholders must follow when conducting or participating in
accident/incident investigations under this section.
Paragraph (b)(1) addresses FRA's initial accident response and
stakeholder notification. Specifically, when initiating an accident
investigation under this section, paragraph (b)(1) requires FRA to
identify stakeholders relevant to the accident/incident.
Paragraph (b)(1)(i) requires FRA to notify identified stakeholders
when it is initiating an investigation of an accident or incident under
paragraph (b), and (b)(1)(ii) requires stakeholders interested in
participating in any such investigation to communicate their intent to
participate to FRA's Chief Safety Officer (or their delegate) within 24
hours of being notified of the investigation.
As soon as practicable after receipt of a stakeholder's notice of
its intent to participate in an FRA investigation, paragraph
(b)(1)(iii) requires FRA to establish clear channels of communication
with stakeholders, including, for example, email correspondence,
teleconferences, and in-person meetings, to facilitate the efficient
transfer of information, and consultation and coordination between FRA
and the stakeholders.
Paragraph (b)(2) establishes guidelines for stakeholder access to
an accident or incident site, and includes rules that FRA, the involved
railroad(s), and other stakeholders must follow. Specifically,
paragraph (b)(2)(i) provides that stakeholders may only gain access to
an accident site through the incident command (if the accident site is
off railroad property) or on-site railroad personnel (if the accident
site is on-railroad property). This paragraph makes clear that when
investigations occur on railroad property, although FRA encourages
railroads to permit on-site access to all relevant stakeholders
participating in FRA's investigation process and expects that railroads
will grant such access, FRA cannot, at its own discretion, provide
stakeholders access. If a railroad rule prohibits a stakeholder from
accessing an accident site during FRA's on-site investigation, the
railroad must promptly notify FRA in writing of any such rule and FRA
will subsequently communicate the substance of that rule to all
affected stakeholders. Paragraph (b)(2)(i) further provides that, in
the event a railroad rule prohibits a stakeholder from accessing an
accident site, FRA may consult with that stakeholder by other means
(e.g., real time participation in on-site meetings via video or
conference call, off-site in-person meetings, virtual meetings, or
phone calls).
Paragraph (b)(2)(ii) makes clear that any stakeholders
participating in FRA's accident/incident investigation process under
this paragraph are not actual or implied agents of FRA and, as such,
FRA is not responsible for the safety of the stakeholders.
Paragraph (b)(2)(iii) provides that FRA will initiate its on-site
investigation when FRA staff arrive at an accident site, and the FRA
investigation team will depart the accident site upon completion of
FRA's on-site investigation activities. FRA will not await the arrival
of stakeholder representatives to begin its investigation, and, if a
stakeholder timely notifies FRA's of its intent to participate but does
not arrive at the accident/incident scene during the investigation, FRA
may make a reasonable effort, at its discretion, to provide a verbal
summary of the status of the investigation before FRA departs the
scene.
Paragraph (b)(2)(iv) requires each stakeholder representative
participating in FRA's on-site investigation to contact the FRA
Inspector-in-Charge (IIC) upon arrival at the accident site and provide
photo identification to the IIC. This paragraph further explains that,
at the time of a stakeholder's initial contact with the IIC, the IIC or
other FRA representative will provide the stakeholder with the name and
contact information for the incident commander and other pertinent
information related to the accident known to the IIC at the time.
Paragraph (b)(3) addresses stakeholder participation in FRA's off-
site information gathering and investigative activities. Specifically,
paragraph (b)(3)(i) provides that FRA will establish a means to receive
and share documents and information electronically with stakeholders.
As outlined in FRA's Policy for Gathering Information and Consulting
with Stakeholders, FRA has developed a web-based document sharing site
for stakeholders to provide relevant documents or information to FRA
and for FRA to share relevant information with stakeholders. Consistent
with the published policy statement, stakeholders submitting documents
and information to FRA's investigation team must submit those
[[Page 79769]]
materials electronically through the site. Protection of personal
confidential information and requests for protection of confidential
business information by entities that have been granted by FRA will
apply to relevant documents provided pursuant to this paragraph.
Paragraph (b)(3)(ii) provides that stakeholders may request
meetings with representatives of other non-FRA stakeholders and request
that FRA participate in such meetings. Although FRA participation is
not guaranteed, any information pertinent to the investigation made
available through these meetings must be documented and submitted to
FRA.
Paragraph (b)(3)(iii) provides that any stakeholder seeking to
provide confidential information to FRA, must coordinate with the IIC
prior to submittal of that information and submit the information to
FRA in compliance with 49 CFR 209.11.
Paragraph (b)(4) addresses stakeholder participation in FRA's off-
site analysis portion of an FRA accident investigation. This paragraph
provides that, when FRA deems appropriate, the FRA investigation team
will consult with stakeholders to review the facts gathered during the
FRA's investigation, FRA's analysis of those facts, and FRA's input and
outputs of root cause analyses. Stakeholders may offer input, raise
concerns, and participate in discussions aimed at identifying root
causes and potential recommendations to mitigate risk or prevent
reoccurrence of the accident/incident. Stakeholders will not be
included in any FRA deliberations or consideration of potential
compliance or enforcement issues related to an accident/incident
investigation.
Paragraph (b)(5) addresses the confidentiality of certain
information related to accident or incident investigations.
Paragraph (b)(5)(i) specifies that, in accordance with all
applicable laws and regulations, FRA will maintain as confidential any
personally identifiable information or sensitive security information
as defined in 49 CFR 1520.5, respectively. This paragraph further
requires that any documents or information a stakeholder provides to
FRA as part of that stakeholder's participation in an accident/incident
under this section, and for which the stakeholder requests
confidentiality, must be submitted in accordance with 49 CFR 209.11.
Moreover, FRA, pursuant to 49 CFR part 209, will maintain the
confidentiality of any stakeholder if: (1) such stakeholder requests
confidentiality; (2) such stakeholder was not involved in the accident
or incident; and (3) maintaining such stakeholder's confidentiality
does not adversely affect an FRA investigation.
Additionally, until FRA publishes its report on an investigation,
stakeholders participating in the investigation may not disseminate any
information (whether that information is confidential or not), or
comment on an investigation to non-stakeholders through any means,
unless FRA's Chief Safety Officer determines that public safety
necessitates allowing the release of certain information to non-
stakeholders. FRA's Chief Safety Officer must make any such
determination in writing. This limitation on sharing information is
intended to limit participating stakeholders from publicly sharing
information about the ongoing investigation, to ensure FRA's ability to
conduct the investigation. The limitation does not limit participating
stakeholders from sharing information with individuals within their
organization.
Paragraph (b)(6) provides that nothing in this rule may be
construed to reduce, in any way, the protections afforded to
individuals who exercise the conduct protected by 49 CFR 225.33,
Internal Control Plans, and 49 United States Code (U.S.C.) 20109,
Federal Railroad Safety Act, Whistleblower Protections.
Paragraphs (d), (e), and (f) of this section are being redesignated
as paragraphs (a)(2) through (6) although the text remains
substantively unchanged.
III. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094 and DOT
Regulatory Policies and Procedures
This final rule is a non-significant regulatory action within the
meaning of Executive Order (E.O.) 12866, as amended by E.O. 14094,
``Modernizing Regulatory Review'' \3\ and DOT's Order, ``Rulemaking and
Guidance Procedures,'' DOT 2100.6A (June 7, 2021).\4\ 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.
---------------------------------------------------------------------------
\3\ 88 FR 21879 (Apr. 6, 2023) available at https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review.
\4\ DOT-2100.6A-Rulemaking and Guidance (Jun. 7, 2021) available
at https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf.
---------------------------------------------------------------------------
FRA is amending its Accident/Incident Regulations, covering
reporting, classification, and investigations, by codifying its policy
for gathering information from and consulting with stakeholders during
an accident/incident investigation. FRA has revised its accident
investigation process to establish 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 this rule will be the
increased information made available for accident/incident
investigations. Involving stakeholders may result in the accident
investigation process receiving more diverse perspectives and more
complete information, which will provide accident investigators with
valuable information that could be essential towards making well-
informed determinations. FRA also expects that providing a means to
submit information to an accessible web-based document sharing site
will increase transparency and efficiency in the accident investigation
process since there will now be one central point for all documentation
related to each accident investigation, and the information will be
accessible to all necessary parties.
FRA estimates this direct final rule will incur a cost of
approximately $0.8 million (Present Value (PV),\5\ 7-percent) over the
next ten years. Table 1 displays the costs of this rule.
---------------------------------------------------------------------------
\5\ 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 https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf.
[[Page 79770]]
Table 1--Total Costs of the Direct Final Rule (2023 Dollars) \6\
----------------------------------------------------------------------------------------------------------------
Total Total
Year stakeholder government Total costs Discounted 7% Discounted 3%
costs costs
----------------------------------------------------------------------------------------------------------------
1............................... $97,922 $19,753 $117,675 $117,675 $117,675
2............................... 97,922 10,541 108,463 101,367 105,304
3............................... 97,922 10,541 108,463 94,736 102,237
4............................... 97,922 10,541 108,463 88,538 99,259
5............................... 97,922 10,541 108,463 82,746 96,368
6............................... 97,922 10,541 108,463 77,333 93,561
7............................... 97,922 10,541 108,463 72,273 90,836
8............................... 97,922 10,541 108,463 67,545 88,190
9............................... 97,922 10,541 108,463 63,126 85,622
10.............................. 97,922 10,541 108,463 58,997 83,128
-------------------------------------------------------------------------------
Total....................... 979,220 114,622 1,093,842 824,336 962,180
----------------------------------------------------------------------------------------------------------------
Note: This table and some others throughout this analysis may not sum due to rounding.
Baseline Scenario
---------------------------------------------------------------------------
\6\ All figures are presented in a 2023 base year unless
otherwise noted.
---------------------------------------------------------------------------
If this final rule were not promulgated, FRA would conduct the same
number of annual accident/incident investigations but would not have a
formal process to allow stakeholders to submit relevant documents to
FRA related to an accident/incident. The accident/incident
investigation process will now include an opportunity for stakeholders
to participate in formal investigations. The additional documentation
from stakeholders will create more transparency and efficiency in the
accident investigation process.
Assumptions and Inputs
The analysis associated with this final rule is based on
assumptions in Table 2. Unless otherwise specified, FRA obtained these
estimates from subject matter experts within FRA's Office of Railroad
Safety, who have over 50 years of combined industry experience. This
analysis uses a 2023 base year. Numbers are not discounted in the first
year of analysis.
Table 2--Assumptions
------------------------------------------------------------------------
------------------------------------------------------------------------
Accident Investigation Notifications
------------------------------------------------------------------------
Annual number of accidents/incidents per year 25 accidents.
for which FRA will require stakeholder
notifications.
Time for Chief Safety Officer to provide each 0.25 hours.
notification.
------------------------------------------------------------------------
Stakeholder Accident Investigation Representations
------------------------------------------------------------------------
Percent of accident investigations with in- 50 percent.
person representation.
Round-trip travel time per day for union 2 hours.
representative.
Time per day for accident/incident investigation 8 hours.
Average number of union representatives per 2 employees.
investigation.
Average number of investigation days per 3 days.
accident/incident.
Percent of accident/incident investigations that 25 percent.
may overlap with National Transportation Safety
Board investigations.
Percent of accident/incident investigations that 50 percent.
may require a hotel stay.
Stakeholder hotel and flight travel costs per 1,500 dollars.
investigation.
------------------------------------------------------------------------
FRA-Provided Training and Outreach
------------------------------------------------------------------------
FRA outreach training time...................... 1 hour.
Number of annual FRA training sessions.......... 5 sessions.
------------------------------------------------------------------------
Stakeholder Documentation Submissions to FRA
------------------------------------------------------------------------
Percent of investigations where stakeholders 100 percent.
submit documents to FRA.
Time per investigation to gather and submit 4 hours.
documents.
------------------------------------------------------------------------
FRA Review of Stakeholder Documentation
------------------------------------------------------------------------
Time for FRA employee to review documents....... 2 hours.
------------------------------------------------------------------------
Document Sharing Site Creation
------------------------------------------------------------------------
Time to create document sharing site............ 64 hours.
Time for FRA Senior Leadership to review/approve 16 hours.
document sharing site.
Time needed for IT developers to grant document 1 hour.
sharing site access to stakeholders.
------------------------------------------------------------------------
[[Page 79771]]
Benefits
FRA anticipates the primary benefit of this rule will be the
increased information made available for accident/incident
investigations. FRA has not quantified the benefits of this final rule,
but FRA expects these benefits should be considered when discussing the
effect of this final rule. Involving stakeholders may result in the
accident investigation process receiving more diverse perspectives and
more complete information, which will provide accident investigators
with valuable information that could be essential towards making well-
informed determinations. FRA also expects that providing a means to
submit information to an accessible web-based document sharing site
will increase transparency and efficiency in the accident investigation
process since there will now be one central point for all documentation
related to each accident investigation, and the information will be
accessible to all necessary parties. FRA acknowledges that additional
unquantified benefits could occur as a result of this final rule.
Costs
FRA estimates the costs that would be associated with this final
rule. Specifically, there will be time and travel-related costs to
stakeholders who participate in the accident/incident investigations,
as well as time spent in their submission of documents to FRA. There
will also be costs to FRA related to accident/incident investigation
notifications, training, and outreach, reviewing stakeholder
documentations, and the creation of the web-based document sharing
site.
Accident Investigation Notifications
FRA will provide notifications to stakeholders for each
investigation of an accident/incident that results in the serious
injury or death of a railroad employee or passenger and other
accidents/incidents for which FRA determines investigation would
substantially serve to promote railroad safety. The notifications will
include relevant details regarding the accident/incident, and the scope
of the investigation. FRA estimates that approximately 25 accident/
incident investigation notifications will be sent annually, and each
notification will take approximately 15 minutes (0.25 hours) to send.
FRA's Chief Safety Officer (or their designee) will notify relevant
stakeholders when FRA is initiating an accident investigation subject
to this rule.\7\ For purposes of this analysis, FRA uses a burdened
wage rate of $148.56 to represent the wage for the Chief Safety
Officer.\8\ Using this information, FRA estimates an annual cost of
$929, undiscounted, for accident investigation notifications to be sent
to stakeholders. Table 3 displays the annual cost to FRA for sending
accident/incident investigation notifications to stakeholders.
---------------------------------------------------------------------------
\7\ In some situations, FRA's Chief Safety Officer may delegate
this duty to other FRA personnel. In these cases, the costs would be
lower.
\8\ Senior Executive Service, average salary, 2023, burdened at
75%. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/exec/html/ES.aspx.
Table 3--Annual Accident Investigation Notifications
----------------------------------------------------------------------------------------------------------------
Time per Annual
Number of annual notifications notification Burdened hourly notification
(hours) wage cost
a b c d = a x b x c
----------------------------------------------------------------------------------------------------------------
25........................................................... 0.25 $148.56 $929
----------------------------------------------------------------------------------------------------------------
In-Person Representation
Upon receiving notification from FRA, stakeholders are given the
opportunity to participate in each accident/incident investigation. FRA
subject matter experts assume stakeholders will attend approximately 50
percent of the investigations in-person. Using this data, FRA estimates
stakeholders will attend 13 accident/incident investigations annually.
However, FRA anticipates that about 25 percent of these accident
investigations may have some overlap with existing NTSB accident
investigations. Thus, FRA estimates approximately 10 annual FRA-led
accident/incident investigations will have stakeholder in-person
representation. FRA uses this assumption to estimate travel and in-
person investigation cost estimates in the sections below. Table 4
displays the number of annual FRA-led investigations with in-person
stakeholder representation that will be used for purposes of this
analysis.
Table 4--Annual FRA-Led Investigations With In-Person Stakeholder
Representation
------------------------------------------------------------------------
Percentage of FRA- Number of annual
Number of annual in-person led FRA-led
investigations attended investigations investigations
a b c = a x b
------------------------------------------------------------------------
13.............................. 75 10
------------------------------------------------------------------------
Travel Costs
For purposes of this analysis, FRA estimates travel costs
associated with the FRA-led accident investigations. FRA assumes
stakeholders will send senior-level representation for each accident/
incident investigation. FRA uses a wage of $118.46 to represent the
burdened hourly wage for stakeholder representation throughout this
analysis.\9\
---------------------------------------------------------------------------
\9\ STB 2023 wage rates for Group #100 (Executives, Officials, &
Staff Assistants), $67.69, burdened at 75-percent. Surface
Transportation Board: 2023 Quarterly Wage A&B Data, annual data.
https://www.stb.gov/reports-data/economic-data/quarterly-wage-ab-data/.
---------------------------------------------------------------------------
[[Page 79772]]
FRA assumes stakeholders would drive to the investigation location
daily, and half of the stakeholders would incur additional hotel and
flight expenses. FRA assumes two stakeholder representatives would
attend each investigation for purposes of this analysis.
FRA estimates all of the annual FRA-led investigations will require
stakeholders to drive to and from the investigation location each day,
either from home or from a hotel. FRA assumes, on average, each
investigation will take approximately three working days (or 24 hours
total) for purposes of this analysis. FRA estimates it will take
stakeholders approximately one hour to drive each one-way trip (or two
hours daily). Table 5 displays the travel costs associated with
stakeholders commuting daily to/from the investigation site.
Table 5--Stakeholder Driving Costs
----------------------------------------------------------------------------------------------------------------
Stakeholder
travel time per Number of Burdened hourly Travel (driving)
Number of annual investigations investigation stakeholders wage costs
(hours)
a b c d e = a x b x c x d
----------------------------------------------------------------------------------------------------------------
10.................................... 6 2 $118.46 $14,215
----------------------------------------------------------------------------------------------------------------
FRA estimates half (5) of the annual FRA-led investigations may
require stakeholders to pay for flight and hotel travel expenses. FRA
assumes travel costs for stakeholders would accrue to approximately
$1,500 per investigation. Table 6 displays the travel costs associated
with stakeholders who may require flight and hotel expenses.
Table 6--Stakeholder Hotel and Flight Costs
------------------------------------------------------------------------
Stakeholder
Number of annual flight and Number of Annual flight
investigations with hotel costs per stakeholders and hotel costs
flight and hotel investigation
a b c d = a x b x c
------------------------------------------------------------------------
5.................... $1,500 2 $15,000
------------------------------------------------------------------------
Using the information above, FRA estimates an annual stakeholder
travel cost of $29,215, undiscounted, for this rule.
Accident Investigation Participation
FRA estimates stakeholders will participate in 10 FRA-led accident/
incident investigations each year. FRA estimates, on average, each
investigation will take 24 hours (three working days) to complete.
Using this information, FRA estimates an annual cost of $56,861 for
stakeholders to participate in FRA-led investigations, shown in Table
7.
Table 7--Annual Cost for Stakeholder Investigation Participation
----------------------------------------------------------------------------------------------------------------
Average number
Number of annual FRA-led of hours per Number of Burdened hourly Annual cost
investigations investigation stakeholders wage
a b c d e = a x b x c x d
----------------------------------------------------------------------------------------------------------------
10.................................... 24 2 $118.46 $56,861
----------------------------------------------------------------------------------------------------------------
Documentation Submission
FRA estimates stakeholders will submit documentation for each
accident/incident investigation, regardless of whether the stakeholder
participates in-person. FRA estimates it will take stakeholders
approximately four hours to gather and submit relevant documents to FRA
for the investigation process. FRA estimates an annual cost of $11,846
for stakeholders to submit documents to FRA for investigations, shown
in Table 8.
Table 8--Annual Cost for Stakeholders To Submit Documents to FRA
------------------------------------------------------------------------
Time per Annual
Number of annual submission Burdened hourly submission
submissions (hours) wage cost
a b c d = a x b x c
------------------------------------------------------------------------
25................... 4 $118.46 $11,846
------------------------------------------------------------------------
[[Page 79773]]
FRA estimates, upon receiving the documents from stakeholders, a
railroad safety specialist will conduct a review of the package. FRA
estimates that each submission package will take approximately two
hours to review. For purposes of this analysis, FRA uses a burdened
hourly wage rate of $126.21 to represent the wage for a railroad safety
specialist.\10\ FRA estimates an annual cost of $6,311 for FRA to
review the documents submitted by stakeholders, shown in Table 9.
---------------------------------------------------------------------------
\10\ Washington, DC Locality Pay, 2023, GS-14, Step 5
($150,016), divided by 2,080 hours, burdened at 75%. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/html/DCB.aspx.
Table 9--FRA Documentation Review
----------------------------------------------------------------------------------------------------------------
Time per Burdened hourly Annual review
Number of annual submission reviews review (hours) wage cost
a b c d = a x b x c
----------------------------------------------------------------------------------------------------------------
25........................................................... 2 $126.21 $6,311
----------------------------------------------------------------------------------------------------------------
FRA Outreach to Stakeholders
FRA anticipates multiple occasions annually where FRA would meet
with labor unions and stakeholder groups to ensure they understand the
amendments to the accident investigation process. FRA estimates five
meetings would occur annually where a railroad safety specialist would
provide outreach to stakeholders and answer questions they may have
regarding the amended process. FRA estimates each session would take
approximately one hour to conduct. FRA uses this information to
estimate an annual cost of $631 for stakeholder outreach, shown in
Table 10.
Table 10--FRA Outreach Costs
------------------------------------------------------------------------
Number of FRA Time per Burdened hourly Annual outreach
outreach sessions session (hours) wage cost
a b c d = a x b x c
------------------------------------------------------------------------
5.................... 1 $126.21 $631
------------------------------------------------------------------------
Web-Based Document Sharing Site Creation
FRA has developed a web-based document sharing site as a means for
stakeholders to submit documents to FRA as a part of the accident/
incident investigation process. FRA anticipates stakeholders will
utilize this site as the primary means of document submission and
sharing of information for future accident investigations.\11\
---------------------------------------------------------------------------
\11\ Although FRA anticipates the web-based document sharing
site as the primary means to submit/share information relevant to
accident/incident investigations, stakeholders may still submit
relevant information to FRA without using the site.
---------------------------------------------------------------------------
The web-based document sharing site was created internally by FRA's
information technology (IT) office. The total project development time
was 80 hours. The project development process was split between both an
IT developer creating the site and FRA senior leadership reviewing and
approving the site before it was finalized. FRA estimates it took 64
hours for the IT developer to create and finalize the web-based
document sharing site, and it took 16 hours for FRA senior leadership
to review and approve it. For purposes of this analysis, FRA uses a
burdened wage rate of $106.80 to estimate the costs of the web-based
document sharing site creation.\12\ Table 11 displays the one-time
costs of the web-based document sharing site.
---------------------------------------------------------------------------
\12\ Washington, DC Locality Pay, 2023, GS-13, Step 5
($126,949), divided by 2,080 hours, burdened at 75%. https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/23Tables/html/DCB.aspx.
Table 11--Web-Based Document Sharing Site Creation
----------------------------------------------------------------------------------------------------------------
Web-based
document Web-based
sharing site Burdened wage document
development rate sharing site
time (hours) cost
a b c = a x b
----------------------------------------------------------------------------------------------------------------
IT Specialist................................................... 64 $106.80 $6,835
SES Review/Approval............................................. 16 148.56 2,377
-----------------------------------------------
Total....................................................... 80 .............. 9,212
----------------------------------------------------------------------------------------------------------------
FRA estimates all 25 annual accident investigations will have
documentation submitted by the stakeholders, regardless of whether or
not the stakeholder participates in-person. FRA estimates stakeholders
would need to
[[Page 79774]]
submit minimal contact information to FRA to be granted access to the
web-based document sharing site. FRA considers these costs to be de
minimis. However, FRA does account for the cost to FRA for granting
access to stakeholders once this information has been submitted. FRA
estimates it will take approximately one hour for FRA's IT developer to
grant access to each stakeholder upon receiving the necessary
information. Table 12 displays the annual cost to FRA for granting
stakeholders access to the web-based document sharing site.
Table 12--FRA Costs for Granting Stakeholders Document Sharing Site
Access
------------------------------------------------------------------------
Number of annual
stakeholder access Time to grant Burdened wage Annual access
requests access (hours) rate cost
a b c d = a x b x c
------------------------------------------------------------------------
25................... 1 $106.80 $2,670
------------------------------------------------------------------------
Total Costs
FRA estimates a total 10-year cost of $0.7 million (PV, 7-percent)
to stakeholders for this rule. Table 13 displays the total costs to
stakeholders for this final rule.
Table 13--Total 10-Year Cost to Stakeholders
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
Year Travel Investigation Document stakeholder Discounted 7% Discounted 3%
participation submission costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $ 29,215 $ 56,861 $ 11,846 $ 97,922 $ 97,922 $ 97,922
2....................................................... 29,215 56,861 11,846 97,922 91,516 95,070
3....................................................... 29,215 56,861 11,846 97,922 85,529 92,301
4....................................................... 29,215 56,861 11,846 97,922 79,934 89,613
5....................................................... 29,215 56,861 11,846 97,922 74,704 87,002
6....................................................... 29,215 56,861 11,846 97,922 69,817 84,468
7....................................................... 29,215 56,861 11,846 97,922 65,250 82,008
8....................................................... 29,215 56,861 11,846 97,922 60,981 79,620
9....................................................... 29,215 56,861 11,846 97,922 56,991 77,301
10...................................................... 29,215 56,861 11,846 97,922 53,263 75,049
-----------------------------------------------------------------------------------------------
Total............................................... 292,150 568,610 118,460 979,220 735,907 860,354
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA estimates a total 10-year cost of $0.1 million (PV, 7-percent)
to FRA for this rule. Table 14 displays the total costs to FRA for this
final rule.
Table 14--Total 10-Year Cost to FRA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Web-based Total
Year Notifications Outreach/ Documentation document government Discounted 7% Discounted 3%
training review sharing site costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................... $929 $631 $6,311 $11,882 $19,753 $19,753 $19,753
2....................................... 929 631 6,311 2,670 10,541 9,851 10,234
3....................................... 929 631 6,311 2,670 10,541 9,207 9,936
4....................................... 929 631 6,311 2,670 10,541 8,605 9,647
5....................................... 929 631 6,311 2,670 10,541 8,042 9,366
6....................................... 929 631 6,311 2,670 10,541 7,516 9,093
7....................................... 929 631 6,311 2,670 10,541 7,024 8,828
8....................................... 929 631 6,311 2,670 10,541 6,564 8,571
9....................................... 929 631 6,311 2,670 10,541 6,135 8,321
10...................................... 929 631 6,311 2,670 10,541 5,734 8,079
---------------------------------------------------------------------------------------------------------------
Total............................... 9,290 6,310 63,110 35,912 114,622 88,431 101,828
--------------------------------------------------------------------------------------------------------------------------------------------------------
FRA estimates a total 10-year cost of $0.8 million (PV, 7-percent)
for this direct final rule, shown in Table 15.
[[Page 79775]]
Table 15--10-Year Total Costs
----------------------------------------------------------------------------------------------------------------
Total Total
Year stakeholder government Total costs Discounted 7% Discounted 3%
costs costs
----------------------------------------------------------------------------------------------------------------
1............................... $97,922 $19,753 $117,675 $117,675 $117,675
2............................... 97,922 10,541 108,463 101,367 105,304
3............................... 97,922 10,541 108,463 94,736 102,237
4............................... 97,922 10,541 108,463 88,538 99,259
5............................... 97,922 10,541 108,463 82,746 96,368
6............................... 97,922 10,541 108,463 77,333 93,561
7............................... 97,922 10,541 108,463 72,273 90,836
8............................... 97,922 10,541 108,463 67,545 88,190
9............................... 97,922 10,541 108,463 63,126 85,622
10.............................. 97,922 10,541 108,463 58,997 83,128
-------------------------------------------------------------------------------
Total....................... 979,220 114,622 1,093,842 824,336 962,180
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 ((RFA), 5 U.S.C. 601 et
seq.) and E.O. 13272 (67 FR 53461, Aug. 16, 2002) require agency review
of proposed and final rules to assess their impacts on small entities.
When an agency issues a proposed rule, the RFA requires the agency to
``prepare and make available for public comment an initial regulatory
flexibility analysis'' which will ``describe the impact of the proposed
rule on small entities.'' 5 U.S.C. 603(a). Section 605 of the RFA
allows an agency to certify a rule, in lieu of preparing an analysis,
if the proposed rulemaking is not expected to have a significant
economic impact on a substantial number of small entities. Although
this final rule will impact small entities, it is entirely voluntary
for those entities to participate, imposing only de minimis additional
burdens or benefits on regulated entities. The regulation would
therefore not have a significant impact on a substantial number of
small entities. Pursuant to 5 U.S.C. 601(b), the FRA Administrator
hereby certifies that this final rule will not have a significant
impact on a substantial number of small entities.
In addition, FRA has determined the RFA does not apply to this
rulemaking. The Small Business Administration's A Guide for Government
Agencies: How to Comply with the Regulatory Flexibility Act (2017),
provides that if, under either the APA or any rule of general
applicability governing federal grants to state and local governments,
the agency is required to publish a general notice of proposed
rulemaking (NPRM), the RFA must be considered. See 5 U.S.C. 604(a). If
an NPRM is not required, the RFA does not apply. Therefore, because FRA
is not required to publish an NPRM, the RFA does not apply.
C. Paperwork Reduction Act
There are no new or additional information collection requirements
associated with this final rule. Therefore, FRA is not required to
provide an estimate of a public reporting burden in this document.
D. Environmental Assessment
FRA has evaluated this final rule in accordance with the National
Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.), 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 rule is
categorically excluded from environmental review and therefore does not
require the preparation of an environmental assessment (EA) or
environmental impact statement (EIS). Categorical exclusions (CEs) are
actions identified in an agency's NEPA implementing procedures that do
not normally have a significant impact on the environment and therefore
do not require either an EA or EIS. Specifically, FRA has determined
that this final rule is categorically excluded from detailed
environmental review.
This rulemaking would not directly or indirectly impact any
environmental resources and would not result in significantly increased
emissions of air or water pollutants or noise. In analyzing the
applicability of a CE, FRA must also consider whether unusual
circumstances are present that would warrant a more detailed
environmental review. FRA has concluded that no such unusual
circumstances exist with respect to this final rule and it meets the
requirements for categorical exclusion.
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to affect historic properties. FRA has also determined
that this rulemaking does not approve a project resulting in a use of a
resource protected by Section 4(f). Further, FRA reviewed this final
rulemaking and found it consistent with E.O. 14008, ``Tackling the
Climate Crisis at Home and Abroad.''
E. Environmental Justice
Executive Order 14096, ``Revitalizing Our Nation's Commitment to
Environmental Justice for All,'' which expands on E.O. 12898, ``Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations,'' requires DOT agencies to achieve
environmental justice as part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects, including interrelated social and
economic effects, of their programs, policies, and activities on
minority populations and low-income populations. DOT Order 5610.2C
(``U.S. Department of Transportation Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations'') instructs
DOT agencies to address compliance with E.O. 12898 and requirements
within the DOT Order 5610.2C in rulemaking activities, as appropriate,
and also requires consideration of the benefits of transportation
programs, policies, and other activities where minority populations and
low-income populations benefit, at a minimum, to the same level as the
general population as a whole when determining impacts on minority and
low-income
[[Page 79776]]
populations.\13\ FRA has evaluated this final rule under Executive
Orders 12898, 14096, and DOT Order 5610.2C, and has determined it will
not cause disproportionate and adverse human health and environmental
effects on communities with environmental justice concerns.
---------------------------------------------------------------------------
\13\ E.O. 14096 ``Revitalizing Our Nation's Commitment to
Environmental Justice,'' issued on April 26, 2023, supplements E.O.
12898, but is not currently referenced in DOT Order 5610.2C.
---------------------------------------------------------------------------
F. Federalism Implications
This final rule will not have a substantial effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Thus, in accordance with E.O. 13132,
``Federalism'' (64 FR 43255, Aug. 10, 1999), preparation of a
Federalism Assessment is not warranted.
G. Unfunded Mandates Reform Act of 1995
This final rule will not result in the expenditure, in the
aggregate, of $100,000,000 or more, adjusted for inflation, in any one
year by State, local, or Indian Tribal governments, or the private
sector. Thus, consistent with section 202 of the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1532), FRA is not required
to prepare a written statement detailing the effect of such an
expenditure.
H. Energy Impact
E.O. 13211 requires Federal agencies to prepare a Statement of
Energy Effects for any ``significant energy action.'' 66 FR 28355 (May
22, 2001). FRA has evaluated this rule in accordance with E.O. 13211
and determined that this rule is not a ``significant energy action''
within the meaning of E.O. 13211.
I. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this final rule in accordance with the principles
and criteria contained in E.O. 13175, ``Consultation and Coordination
with Indian Tribal Governments,'' dated November 6, 2000. The final
rule would not have a substantial direct effect on one or more Indian
tribes, would not impose substantial direct compliance costs on Indian
tribal governments, and would not preempt tribal laws. Therefore, the
funding and consultation requirements of E.O. 13175 do not apply, and a
tribal summary impact statement is not required.
J. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety, are not considered unnecessary
obstacles. The statute also requires consideration of international
standards and where appropriate, that they be the basis for U.S.
standards. This rulemaking is purely domestic in nature and is not
expected to affect trade opportunities for U.S. firms doing business
overseas or for foreign firms doing business in the United States.
List of Subjects in 49 CFR Part 225
Investigations, Penalties, Railroad safety, Reporting and
recordkeeping requirements.
In consideration of the foregoing, FRA amends part 225 of chapter
II, subtitle B of title 49, Code of Federal Regulations as follows:
PART 225--RAILROAD ACCIDENTS/INCIDENTS: REPORTS CLASSIFICATION, AND
INVESTIGATIONS
0
1. The authority citation for part 225 continues to read as follows:
Authority: 49 U.S.C. 103, 322(a), 20103, 20107, 20901-20902,
21301, 21302, 21311; 28 U.S.C. 2461 note; and 49 CFR 1.89.
0
2. Revise and republish Sec. 225.31 to read as follows:
Sec. 225.31 Investigations.
(a) General. (1) It is the policy of FRA to investigate rail
transportation accidents/incidents which result in the serious injury
or death of a railroad employee or passenger and other accidents/
incidents, the investigation of which FRA determines would
substantially serve to promote railroad safety.
(2) FRA representatives are authorized to investigate accidents/
incidents and have been issued credentials authorizing them to inspect
railroad records and properties. They are authorized to obtain all
relevant information concerning accidents/incidents under
investigation, to make inquiries of persons having knowledge of the
facts, conduct interviews and inquiries, and attend as an observer,
hearings conducted by railroads. When necessary to carry out an
investigation, the FRA may authorize the issuance of subpoenas to
require the production of records and the giving of testimony.
(3) Whenever necessary, the FRA will schedule a public hearing
before an authorized hearing officer, in which event testimony will be
taken under oath, a record made, and opportunity provided to question
witnesses.
(4) When necessary in the conduct of an investigation, the Federal
Railroad Administrator may require autopsies and other tests of the
remains of railroad employees who die as a result of an accident/
incident.
(5) Information obtained through FRA accident investigations may be
published in public reports or used for other purposes FRA deems to be
appropriate.
(6) Section 20903 of title 49 of the United States Code provides
that no part of a report of an accident investigation under section
20902 of title 49 of the United States Code may be admitted as evidence
or used for any purpose in any suit or action for damages growing out
of any matter mentioned in the accident investigation report.
(b) Stakeholder participation. For accidents or incidents
involving, based on initial information, an on-duty employee fatality,
an on-duty employee amputation, or an on-duty employee suffering life-
threatening injuries, and other accidents or incidents FRA's Chief
Safety Officer (or their delegate) determines appropriate, FRA will
provide an opportunity for stakeholder involvement in FRA's accident
investigation. Stakeholders may include, but are not limited to,
railroads, contractors, employees, representatives of employees,
industry associations, academia, the Volpe Center, and any other
persons or entities FRA determines to be relevant. FRA, involved
stakeholders, and railroads whose property is the site of an
investigation, shall adhere to the following procedures and limits when
conducting or participating in accident/incident investigations under
this section:
(1) Initial response and stakeholder notification. When initiating
an investigation into an accident under this paragraph, FRA will
identify stakeholders relevant to the accident or incident.
(i) FRA will promptly notify, in writing where practicable, the
identified stakeholders of the agency's initiation of an investigation
into an accident or incident. Such notifications will include the known
relevant details regarding the incident and the expected scope of the
investigation.
(ii) Stakeholders interested in participating in the investigation
must communicate their intent to participate to FRA's Chief Safety
Officer (or their
[[Page 79777]]
delegate) within 24 hours of the notification under paragraph (b)(1)(i)
of this section.
(iii) As soon as practicable, upon receipt of stakeholders' notice
of intent to participate in an investigation, FRA shall establish clear
channels of communication with the identified stakeholders. These
channels may include, but are not limited to, email correspondence,
teleconferences, in-person meetings, and online forums.
(2) On-site investigation. (i) Stakeholders may only gain access to
the accident site through the incident command or on-site railroad
personnel. When investigations occur on railroad property, FRA
encourages railroads to permit on-site access to stakeholders
participating in FRA's investigation process and expects that railroads
will grant such access. However, FRA cannot, at its own discretion,
provide stakeholders' access to an accident site. If a railroad rule
prohibits a stakeholder from accessing the accident site during FRA's
on-site investigation, a railroad must promptly notify FRA in writing
of any such rule, and FRA will subsequently communicate the substance
of the rule to all affected stakeholders. In these instances, as
practicable, FRA may consult with any affected stakeholder by other
means (e.g., through real-time participation in on-site meetings via
video or conference call, off-site in-person meetings, virtual
meetings, or phone calls).
(ii) Stakeholders are not actual or implied agents of FRA. FRA is
not responsible for the safety of stakeholders.
(iii) FRA will initiate its on-site investigation when FRA staff
arrive at an accident site, and the FRA investigation team will depart
the accident site upon completion of FRA's on-site investigation
activities. FRA will not wait for participating stakeholders to arrive
at the accident site to begin its investigation, but FRA will make a
reasonable effort to provide a stakeholder that does not arrive at the
accident site during the investigation a verbal summary of the status
of the investigation. As needed, FRA will advise stakeholder
representatives when the FRA team expects to leave the accident site.
(iv) Each stakeholder representative participating in FRA's on-site
investigation must contact the FRA Inspector-in-Charge (IIC) upon
arrival at the accident site and provide photo identification to the
IIC. At the time of a stakeholder's initial contact with the IIC, the
IIC or other FRA representatives will provide the stakeholder with the
name and contact information for the incident commander and other
pertinent information related to the accident known to the IIC at the
time. As needed, FRA's investigation team should coordinate meeting(s)
with stakeholders and provide a verbal summary of the status of the
investigation as stakeholders arrive to the accident site.
(3) Off-site information gathering and investigative activities.
(i) When conducting accident/incident investigations under this
paragraph, to the extent practicable, FRA will establish a means to
receive and share documents and information with Stakeholders
electronically. Any documents or information stakeholders submit to
FRA's investigation team must be provided to FRA through such
established system. With the exception of confidential information or
documents or information appropriately submitted consistent with
paragraph (4) of this section, FRA may share documents relevant to its
investigation with Stakeholders.
(ii) Stakeholders may request meetings with representatives of
other non-FRA stakeholders and request that FRA participate in such
meetings. FRA participation is not guaranteed, and any information
pertinent to the investigation made available through these meetings
must be documented and submitted through the established electronic
information sharing system.
(iii) Any stakeholder seeking to provide confidential information
to FRA, or to maintain the confidentiality of such stakeholder's
identity, must coordinate with the IIC prior to submittal of that
information and submit the information to FRA in compliance with 49 CFR
209.11.
(4) Analysis activities. As appropriate, the FRA investigation team
will consult with stakeholders to review the facts gathered during the
team's investigation of the accident/incident, FRA's analysis of those
facts, and FRA's inputs and outputs of root cause analyses.
Stakeholders may offer input, raise concerns, and participate in
discussions aimed at identifying root causes and potential
recommendations to mitigate risk or prevent reoccurrence of the
accident/incident. Stakeholders will not be included in FRA
deliberations or consideration of potential compliance or enforcement
issues related to an accident/incident investigation.
(5) Confidentiality. (i) FRA recognizes the sensitive nature of
certain information involved in accident or incident investigations. In
accordance with applicable laws and regulations, FRA will maintain as
confidential any personally identifiable information or sensitive
security information as defined in 2 CFR 200.1 and 49 CFR 1520.5,
respectively. Any other documents or information a participating
stakeholder provides to FRA as part of that stakeholder's participation
in an accident/incident investigation under this section, and for which
a stakeholder claims confidentiality, must be submitted in accordance
with 49 CFR 209.11.
(ii) FRA shall maintain the confidentiality of any stakeholder if:
(A) such stakeholder requests confidentiality;
(B) such stakeholder was not involved in the accident or incident;
and
(C) maintaining such stakeholder's confidentiality does not
adversely affect an FRA investigation.
(iii) Until FRA publishes its report on the investigation, a
stakeholder participating in an investigation may not disseminate any
information or comment on an investigation to non-stakeholders through
any means. Only when necessary for public safety, and only with the FRA
Chief Safety Officer's written permission, may stakeholders release
information to non-stakeholders if the information is factual, neutral
and objective in tone, and without purported FRA characterization of
the matter's contribution to the underlying accident/incident.
(6) Whistleblower protections. Nothing in this paragraph may be
construed to reduce in any way the protections afforded to individuals
who exercise the conduct protected by 49 CFR 225.33, Internal Control
Plans, and 49 United States Code (U.S.C.) Sec. 20109, Federal Railroad
Safety Act, Whistleblower Protections.
Issued in Washington, DC.
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2024-22326 Filed 9-30-24; 8:45 am]
BILLING CODE 4910-06-P
