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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 [www.gpo.gov]
[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: [email protected]; or Senya Waas, Senior 
Attorney, Office of the Chief Counsel, FRA, telephone: 202-875-4158 or 
email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    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 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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[[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 https://www.transportation.gov/sites/dot.gov/files/2021-08/Final-for-OST-C-210407-001-signed.pdf.

                                  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
                                --------------------------------------------------------------------------------
    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

[[Page 5742]]

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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