(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 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.) § 20109, Federal Railroad Safety Act, Whistleblower Protections.