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

SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to 49 U.S.C. 20103, FRA, as delegated by the Secretary of Transportation, 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. See49 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. SeePublic 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 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.

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 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” and DOT's Order, “Rulemaking and Guidance Procedures,” DOT 2100.6A (June 7, 2021). 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), 7-percent) over the next ten years. Table 1 displays the costs of this rule.