[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]


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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.

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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: <a href="/cdn-cgi/l/email-protection#aad8c3c9c1d384c2dfcdcdc3c4d9eacec5de84cdc5dc"><span class="__cf_email__" data-cfemail="deacb7bdb5a7f0b6abb9b9b7b0ad9ebab1aaf0b9b1a8">[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#ee9d8b80978f8f8080c0998f8f9dae8a819ac0898198"><span class="__cf_email__" data-cfemail="5023353e2931313e3e7e2731312310343f247e373f26">[email protected]</span></a>.

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.
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    \1\ 49 CFR 1.89(a); 49 U.S.C. 103(g).
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    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:
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    \2\ https://railroads.dot.gov/elibrary/bipartisan-infrastructure-law-section-22417-fra-accident-and-incident-investigations-0.
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    <bullet> When FRA will provide the opportunity for stakeholders to 
participate in FRA accident/incident investigations;
    <bullet> How FRA will notify stakeholders of an accident 
investigation in which they may participate;
    <bullet> The expectations of stakeholders;
    <bullet> How stakeholders can participate in FRA's accident 
investigation process;
    <bullet> How stakeholders can submit information to FRA to assist 
with the investigation; and
    <bullet> 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.
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    \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.
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    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.
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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 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\
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                                       Total           Total
              Year                  stakeholder     government      Total costs    Discounted 7%   Discounted 3%
                                       costs           costs
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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
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Note: This table and some others throughout this analysis may not sum due to rounding.

Baseline Scenario
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    \6\ All figures are presented in a 2023 base year unless 
otherwise noted.
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    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
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------------------------------------------------------------------------
                  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
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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.
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              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.
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                 FRA Review of Stakeholder Documentation
------------------------------------------------------------------------
Time for FRA employee to review documents.......  2 hours.
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                     Document Sharing Site Creation
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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.
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[[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.
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    \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\
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    \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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[[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


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