Rule2025-00998
Accident/Incident Investigation Policy for Gathering Information and Consulting With Stakeholders
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 17, 2025
Effective
January 17, 2025
Issuing agencies
Transportation DepartmentFederal Railroad Administration
Abstract
FRA is withdrawing the direct final rule titled "Federal Railroad Administration Accident/Incident Investigation Policy for Gathering Information and Consulting with Stakeholders," (the Rule) which was published on October 1, 2024.
Full Text
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<title>Federal Register, Volume 90 Issue 11 (Friday, January 17, 2025)</title>
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[Federal Register Volume 90, Number 11 (Friday, January 17, 2025)]
[Rules and Regulations]
[Pages 5740-5742]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00998]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
[Docket No. FRA-2024-0034]
RIN 2130-AC98
Accident/Incident Investigation Policy for Gathering Information
and Consulting With Stakeholders
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Final rule; withdrawal.
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SUMMARY: FRA is withdrawing the direct final rule titled ``Federal
Railroad Administration Accident/Incident Investigation Policy for
Gathering Information and Consulting with Stakeholders,'' (the Rule)
which was published on October 1, 2024.
DATES: Effective on January 17, 2025, FRA withdraws the direct final
rule published at 89 FR 79767 on October 1, 2024.
FOR FURTHER INFORMATION CONTACT: Rick Huggins, Supervisory Railroad
Security Specialist, Office of Railroad Safety, FRA, telephone: 202-
465-6922 or email: <a href="/cdn-cgi/l/email-protection#81f3e8e2eaf8afe9f4e6e6e8eff2c1e5eef5afe6eef7"><span class="__cf_email__" data-cfemail="06746f656d7f286e7361616f68754662697228616970">[email protected]</span></a>; or Senya Waas, Senior
Attorney, Office of the Chief Counsel, FRA, telephone: 202-875-4158 or
email: <a href="/cdn-cgi/l/email-protection#82f1e7ecfbe3e3ececacf5e3e3f1c2e6edf6ace5edf4"><span class="__cf_email__" data-cfemail="fc8f9992859d9d9292d28b9d9d8fbc989388d29b938a">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On October 1, 2024, FRA published the Rule in the Federal Register
amending 49 Code of Federal Regulations (CFR) 225.31 to, in accordance
with Section 22417 of the Infrastructure Investment and Jobs Act
(IIJA), create a standard process for investigators to use during
accident and incident investigations conducted under that section.\1\
This process was to be used to determine when it was appropriate to
collect information and the appropriate method for gathering that
information about an accident or incident under investigation from
railroad carriers, contractors or employees of railroad carriers, or
representatives of employees of railroad carriers, and others, as
determined relevant by the Secretary. The process was also to be used
to determine when it was appropriate to consult with railroad carriers,
contractors or employees of railroad carriers, or representatives of
employees of railroad carriers, and others, as determined relevant by
the Secretary, for technical expertise on the facts of the accident or
incident under investigation. See Public Law 117-58, Section 22417,
Nov. 15, 2021, 135 Stat. 748.
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\1\ 89 FR 79767. A correction to the Rule was published on
October 28, 2024 (89 FR 85450).
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The Rule generated two adverse, substantive comments. Accordingly,
as described in more detail below, FRA has decided to withdraw the
Rule.
II. Reasons for Withdrawal
FRA is withdrawing the Rule, which took effect on November 15,
2024. FRA received two adverse, substantive comments which opposed the
Rule. There were no comments submitted in support of the Rule.\2\
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\2\ As stated in 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.'' 89 FR 79767 at 79768.
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Commenters objecting to the Rule stated that the Rule was
insufficient as it needed to be expanded to include the outside review
of accidents/incidents by professionals, such as physicists or highly-
qualified industrial engineers, as independent reviews of findings.
Commenters also alleged that FRA's outreach to the Class I
railroads was limited and insufficient, and nonexistent to short line
railroads. As such, it was the position of the commenters that FRA did
not account for how the Rule would fully affect the railroad industry
in the following ways: (1) FRA's ``catch-all'' provision for
determining which accidents trigger the information gathering and
stakeholder consultation requirements is vague and fails to properly
implement the IIJA mandate; (2) FRA's description of ``stakeholders''
fails to properly implement the IIJA mandate; (3) FRA fails to explain
substantive regulatory changes in 49 CFR 225.31(a); (4) loopholes allow
for information to be shared with third parties during an
investigation; (5) it is unclear how FRA's web-based document sharing
site will protect against the disclosure of confidential information;
(6) there are no protections against post-investigation disclosures of
confidential information; (7) the identity of a stakeholder should not
be kept confidential from other stakeholders; (8) FRA's investigation
policy would create untenable conflicts with NTSB practice in
situations where NTSB and FRA conduct overlapping investigations; (9)
FRA improperly limits the basis for restricting stakeholder access to
an accident site; (10) FRA does not have the authority to grant a
stakeholder ``virtual'' access to railroad property; (11) the
investigation policy will result in undue delays in clearing accident
sites; (12) FRA adopts an incident command model but fails to provide
details on its structure and tasks; and (13) FRA underestimates the
cost of compliance of the new regulation.
Given the extent of the commenters' substantive issues with the
Rule, FRA is withdrawing the Rule at this time in order to re-assess
its components and work further with stakeholders to evaluate potential
changes.
III. Regulatory Impact and Notices
A. Executive Order 12866 as Amended by Executive Order 14094 and DOT
Regulatory Policies and Procedures
This withdrawal is a non-significant regulatory action within the
meaning of Executive Order (E.O.) 12866, as amended by E.O. 14094,
``Modernizing Regulatory 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.
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\3\ 88 FR 21879 (Apr. 6, 2023) available at <a href="https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review">https://www.federalregister.gov/documents/2023/04/11/2023-07760/modernizing-regulatory-review</a>.
\4\ DOT-2100.6A-Rulemaking and Guidance (Jun. 7, 2021) available
at <a href="https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf">https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf</a>.
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[[Page 5741]]
FRA is amending its Accident/Incident Regulations, covering
reporting, classification, and investigations, by withdrawing its
regulation (i.e., the Rule) for gathering information from and
consulting with stakeholders during an accident/incident investigation.
Through this withdrawal of the Rule, FRA is revising its accident
investigation process by removing the changes made by the Rule that
established procedures for stakeholder participation in investigation,
including notifying stakeholders of an accident investigation;
permitting the assistance of stakeholders in investigations; and
allowing stakeholders to submit information to FRA to assist with the
investigation.
FRA anticipates the primary benefit of withdrawing the Rule will be
the ability to re-assess and ultimately re-issue a rule addressing
Section 22417 of IIJA and concerns raised by commenters.
In the Rule, FRA estimated costs of approximately $1.0 million
(Present Value (PV),\5\ 2-percent) over the ten-year analysis. By
withdrawing the Rule, FRA estimates this will now incur a cost savings.
Table 1 displays the cost savings of withdrawing the Rule from the
Accident/Incident regulations in 49 CFR part 225.
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\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 <a href="https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf">https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf</a>.
Table 1--Total Cost Savings of the Final Rule
[2023 Dollars] \6\
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Total Total
Year stakeholder government Total cost PV 7% PV 3% PV 2%
cost savings cost savings savings
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1.............................. $ 97,922 $ 19,753 $ 117,675 $ 117,675 $ 117,675 $ 117,675
2.............................. 97,922 10,541 108,463 101,367 105,304 106,336
3.............................. 97,922 10,541 108,463 94,736 102,237 104,251
4.............................. 97,922 10,541 108,463 88,538 99,259 102,207
5.............................. 97,922 10,541 108,463 82,746 96,368 100,203
6.............................. 97,922 10,541 108,463 77,333 93,561 98,238
7.............................. 97,922 10,541 108,463 72,273 90,836 96,312
8.............................. 97,922 10,541 108,463 67,545 88,190 94,424
9.............................. 97,922 10,541 108,463 63,126 85,622 92,572
10............................. 97,922 10,541 108,463 58,997 83,128 90,757
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Total...................... 979,220 114,622 1,093,842 824,336 962,180 1,002,975
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Note: Table may not sum due to rounding.
B. Regulatory Flexibility Act
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\6\ All figures are presented in a 2023 base year unless
otherwise noted.
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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 an agency to
prepare and make available to the public a regulatory flexibility
analysis that describes the effect of the rule on small entities (i.e.,
small businesses, small organizations, and small governmental
jurisdictions). A regulatory flexibility analysis is not required when
a rule is exempt from notice-and-comment rulemaking.
C. Paperwork Reduction Act
There are no new or additional information collection requirements
associated with this withdrawal. Therefore, FRA is not required to
provide an estimate of a public reporting burden in this document.
D. Environmental Assessment
FRA has evaluated this withdrawal 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 withdrawal 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 withdrawal is categorically excluded from detailed
environmental review.
This withdrawal 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 withdrawal 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 withdrawal does not approve a project resulting in a use of a
resource protected by Section 4(f). Further, FRA reviewed this
withdrawal 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
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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 populations.\7\ FRA has evaluated this withdrawal 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.
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\7\ 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.
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F. Federalism Implications
This withdrawal 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 withdrawal 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 withdrawal in accordance with E.O.
13211 and determined that this withdrawal is not a ``significant energy
action'' within the meaning of E.O. 13211.
I. Executive Order 13175 (Tribal Consultation)
FRA has evaluated this withdrawal in accordance with the principles
and criteria contained in E.O. 13175, ``Consultation and Coordination
with Indian Tribal Governments,'' dated November 6, 2000. The
withdrawal 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 withdrawal 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.
The Final Rule
In consideration of the foregoing, FRA amends 49 CFR part 225 as
follows:
PART 225--RAILROAD ACCIDENTS/INCIDENTS: REPORTS CLASSIFICATION, AND
INVESTIGATION
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.
Sec. 225.31 [Amended]
0
2. Amend Sec. 225.31 by removing the heading for paragraph (a),
removing paragraph (b), and redesignating paragraphs (a)(1) through
(a)(6) as paragraphs (a) through (f) respectively.
Issued in Washington, DC.
Allison Ishihara Fultz,
Chief Counsel.
[FR Doc. 2025-00998 Filed 1-16-25; 8:45 am]
BILLING CODE 4910-06-P
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