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Procedures for Implementation of the National Construction Safety Team Act
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: January 30, 2003 (Volume 68, Number 20)]
[Rules and Regulations]
[Page 4693-4697]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ja03-4]
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DEPARTMENT OF COMMERCE
National Institute of Standards and Technology
15 CFR Part 270
[Docket No: 021224331-2331-01]
RIN 0693-AB52
Procedures for Implementation of the National Construction Safety
Team Act
AGENCY: National Institute of Standards and Technology, United States
Department of Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Director of the National Institute of Standards and
Technology (NIST), Technology Administration, United States Department
of Commerce, requests comments on an interim final rule pertaining to
the implementation of the National Construction Safety Team Act
(``Act''). This interim final rule with a request for public comments
contains general provisions regarding implementation of the Act and
establishes procedures for the collection and preservation of evidence
obtained and the protection of information created as part of
investigations conducted pursuant to the Act.
DATES: This rule is effective on January 30, 2003. Comments must be
received no later than March 3, 2003.
ADDRESSES: Comments on the interim final rule must be submitted to: Dr.
James E. Hill, Deputy Director, Building and Fire Research Laboratory,
National Institute of Standards and Technology, Mail Stop 8600,
Gaithersburg, MD 20899-8600, telephone number (301) 975-5900.
FOR FURTHER INFORMATION CONTACT: Dr. James E. Hill, Deputy Director,
Building and Fire Research Laboratory, National Institute of Standards
and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone
number (301) 975-5900.
SUPPLEMENTARY INFORMATION:
Background
The National Construction Safety Team Act, Pub. L. 107-231, was
enacted to provide for the establishment of investigative teams
(``Teams'') to assess building performance and emergency response and
evacuation procedures in the wake of any building failure that has
resulted in substantial loss of life or that posed significant
potential of substantial loss of life. The purpose of investigations by
Teams is to improve the safety and structural integrity of buildings in
the United States. A Team will (1) Establish the likely technical cause
or causes of the building failure; (2) evaluate the technical aspects
of evacuation and emergency response procedures; (3) recommend, as
necessary, specific improvements to building standards, codes, and
practices based on the findings made pursuant to (1) and (2); and
recommend any research and other appropriate actions needed to improve
the structural safety of buildings, and improve evacuation and
emergency response procedures, based on the findings of the
investigation. Section 2(c)(1) of the Act requires that the Director
develop procedures for certain activities to be carried out under the
Act as follows: Regarding conflicts of interest related to service on a
Team; defining the circumstances under which the Director will
establish and deploy a Team; prescribing the appropriate size of Teams;
guiding the disclosure of information under section 7 of the Act;
guiding the conduct of investigations under the Act; identifying and
prescribing appropriate conditions for provision by the Director of
additional resources and services Teams may need; to ensure that
investigations under the Act do not impede and are coordinated with any
search and rescue efforts being undertaken at the site of the building
failure; for regular briefings of the public on the status of the
investigative proceedings and findings; guiding the Teams in moving and
preserving evidence; providing for coordination with Federal, State,
and local entities that may sponsor research or investigations of
building failures; and regarding other issues.
NIST plans to publish two separate documents in the Federal
Register regarding procedures to implement the Act. This interim final
rule with a request for public comments contains general provisions
regarding implementation of the Act and establishes procedures for the
collection and preservation of evidence obtained and the protection of
information created as part of investigations conducted pursuant to the
Act, including guiding the disclosure of information under section 7 of
the Act (Sec. Sec. 270.350, 270.351, and 270.352) and guiding the
Teams in moving and preserving evidence (Sec. 270.330). These general
provisions and procedures, which will comprise Subparts A and D of the
rule, are necessary to the conduct of the investigation of the World
Trade Center disaster, already underway, and are effective immediately.
At a later date, NIST plans to publish in the Federal Register a notice
of proposed rulemaking and request for comments, establishing the
remaining procedures necessary for implementation of the Act.
Request for Public Comment: Persons interested in commenting on the
interim final rule should submit their comments in writing to the above
address. All comments received in response to this notice will become
part of the public record and will be available for inspection and
copying at the Department of Commerce Central Reference and Records
Inspection facility, room 6228, Hoover Building, Washington, DC 20230.
Additional Information
Executive Order 12866
This rule has been determined not to be significant under section
3(f) of Executive Order 12866.
Executive Order 12612
This rule does not contain policies with Federalism implications
sufficient to warrant preparation of a Federalism assessment under
Executive Order 12612.
Administrative Procedure Act
Prior notice and an opportunity for public comment are not required
for this rule of agency organization, procedure, or practice. 5 U.S.C.
553(b)(A).
Regulatory Flexibility Act
Because notice and comment are not required under 5 U.S.C. 553, or
any other law, the analytical requirements of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. As such, a
regulatory flexibility analysis is not required, and none has been
prepared.
Paperwork Reduction Act
Notwithstanding any other provision of the law, no person is
required to, nor shall any person be subject to penalty for failure to
comply with, a collection of information, subject to the requirements
of the Paperwork Reduction Act, unless that collection of information
displays a currently valid OMB Control Number.
There are no collections of information involved in this
rulemaking.
National Environmental Policy Act
This rule will not significantly affect the quality of the human
environment. Therefore, an environmental assessment or Environmental
Impact Statement is not required to be prepared under the National
Environmental Policy Act of 1969.
[[Page 4694]]
List of Subjects in 15 CFR Part 270
Administrative practice and procedure; Buildings and facilities;
Disaster assistance; Evidence; Investigations; National Institute of
Standards and Technology; Science and technology; Subpoena.
Dated: January 23, 2003.
Karen H. Brown,
Deputy Director.
For reasons set forth in the preamble, the National Institute of
Standards and Technology amends 15 CFR chapter II to add a new
Subchapter G, part 270, as follows:
Subchapter G--National Construction Safety Teams
PART 270--NATIONAL CONSTRUCTION SAFETY TEAMS
Subpart A--General
Sec.
270.1 Description of rule; purpose; applicability.
270.2 Definitions used in this subpart.
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--Collection and Preservation of Evidence; Information Created
Pursuant to an Investigation; and Protection of Information
270.300 Scope.
270.301 Policy.
Collection of Evidence
270.310 Evidence collected by investigation participants who are not
NIST employees.
270.311 Collection of evidence.
270.312 Voluntary submission of evidence.
270.313 Requests for evidence.
270.314 Negotiations.
270.315 Subpoenas.
270.316 Public hearings.
Entry and Inspection
270.320 Entry and inspection of site where a building failure has
occurred.
270.321 Entry and inspection of property where building components,
materials, artifacts, and records with respect to a building failure
are located.
270.322 Voluntary permission to enter and inspect property where
building components, materials, artifacts, and records with respect
to a building failure are located.
270.323 Requests for permission to enter and inspect property where
building components, materials, artifacts, and records with respect
to a building failure are located.
270.324 Negotiations.
270.325 Notice of authority to enter and inspect property where
building components, materials, artifacts, and records with respect
to a building failure are located.
Preservation of Evidence
270.330 Moving and preserving evidence.
Information Created Pursuant to an Investigation
270.340 Information created by investigation participants who are
not NIST employees.
Protection of Information
270.350 Freedom of Information Act.
270.351 Protection of voluntarily submitted information.
270.352 Public safety information
Authority: Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 3701
note).
Subpart A--General
Sec. 270.1 Description of rule; purpose; applicability.
(a) The National Construction Safety Team Act (the Act) (Pub. L.
107-231) provides for the establishment of investigative teams to
assess building performance and emergency response and evacuation
procedures in the wake of any building failure that has resulted in
substantial loss of life or that posed significant potential of
substantial loss of life.
(b) The purpose of investigations by Teams is to improve the safety
and structural integrity of buildings in the United States.
(c) This part is applicable to the establishment and deployment of
Teams and the conduct of investigations under the Act.
Sec. 270.2 Definitions used in this part.
The following definitions are applicable to this part:
Act. The National Construction Safety Team Act (Pub. L. 107-231,
116 Stat. 1471).
Advisory Committee. The National Construction Safety Team Advisory
Committee.
Credentials. Photo identification issued by a Federal or state
government entity.
Director. The Director of the National Institute of Standards and
Technology.
Evidence. Any document, record, book, artifact, building component,
material, witness testimony, or physical evidence collected pursuant to
an investigation.
General Counsel. The General Counsel of the U.S. Department of
Commerce.
Investigation participant. Any person participating in an
investigation under the Act, including all Team members, other NIST
employees participating in the investigation, private sector experts,
university experts, representatives of professional organizations,
employees of other Federal, state, or local government entities, and
other contractors.
Lead Investigator. A Team member who is a NIST employee and is
designated by the Director to lead a Team.
Team. A team established by the Director and deployed to conduct an
investigation under the Act.
NIST. The National Institute of Standards and Technology.
Subpart B--[Reserved]
Subpart C--[Reserved]
Subpart D--Collection and Preservation of Evidence; Information
Created Pursuant to an Investigation; and Protection of Information
Sec. 270.300 Scope.
During the course of an investigation conducted pursuant to the
Act, evidence will be collected, and information will be created by the
Team, NIST, and other investigation participants. This subpart sets
forth the policy and procedures for the collection, preservation, and
protection of evidence obtained and information created pursuant to an
investigation.
Sec. 270.301 Policy.
Evidence collected and information created by Team members and all
other investigation participants will be collected, preserved, and
protected in accordance with the procedures set forth in this subpart.
Collection of Evidence
Sec. 270.310 Evidence collected by investigation participants who are
not NIST employees.
Upon receipt of information pursuant to an investigation under the
Act, each investigation participant who is not a NIST employee shall:
(a) As soon as practicable, transfer the original evidence to NIST,
and retain a copy of the evidence only if necessary to carry out their
duties under the investigation; and
(b) For any evidence that cannot reasonably be duplicated, retain
the evidence in accordance with NIST procedures for preserving evidence
as described in Sec. 270.330 of this subpart, and upon completion of
the duties for which retention of the evidence is necessary, transfer
the evidence to NIST.
Sec. 270.311 Collection of evidence.
(a) In the course of an investigation, evidence normally will be
collected following the procedures described in Sec. Sec. 270.312
through 270.315 of this subpart.
(b) Upon a written showing by the Lead Investigator of urgent and
[[Page 4695]]
compelling reasons to believe that evidence may be destroyed, or that a
witness may become unavailable, were the procedures described in
Sec. Sec. 270.312 through 270.314 of this subpart followed, the
Director, with the concurrence of the General Counsel, may immediately
issue a subpoena for such evidence or testimony, pursuant to Sec.
270.315 of this subpart.
Sec. 270.312 Voluntary submission of evidence.
After the Director establishes and deploys a Team, members of the
public are encouraged to voluntarily submit to the Team non-privileged
evidence that is relevant to the subject matter of the pending
investigation. Confidential information will only be accepted pursuant
to an appropriate nondisclosure agreement.
Sec. 270.313 Requests for evidence.
(a) After the Director establishes and deploys a Team, the Lead
Investigator, or their designee, may request the testimony of any
person by deposition, upon oral examination or written questions, and
may request documents or other physical evidence without seeking prior
approval of the Director.
(b) Requests for responses to written questions will be made in
writing and shall include:
(1) A statement that the request is made to gather evidence
necessary to an investigation being conducted under the Act;
(2) Identification of the person whose responses are sought;
(3) Contact information for the person to whom the responses should
be submitted;
(4) The date and time by which the responses are requested;
(5) A statement that the questions for which responses are sought
are attached; and
(6) Contact information for the person to whom questions or
problems regarding the request should be addressed.
(c) Requests for documents or other physical evidence will be made
in writing and shall include:
(1) A statement that the request is made to gather evidence
necessary to an investigation being conducted under the Act;
(2) A description of the documents or other physical evidence
sought;
(3) Identification of the person or persons to whom the request is
made;
(4) A request that each person to whom the request is directed
produce and permit inspection and copying of the documents and physical
evidence in the possession, custody, or control of that person at a
specific time and place; and
(5) Contact information for the person to whom questions or
problems regarding the request should be addressed.
(d) Requests for witness testimony will be made in writing and
shall include:
(1) The name of the person whose testimony is requested;
(2) The date, time, and place of the deposition;
(3) A statement that the person whose testimony is requested may be
accompanied by an attorney; and
(4) Contact information for the person to whom questions or
problems regarding the request should be addressed.
Sec. 270.314 Negotiations.
The Lead Investigator may enter into discussions with appropriate
parties to address problems identified with the submission of evidence
requested pursuant to Sec. 270.312 of this subpart. Should
negotiations fail to result in the submission of such evidence, a
subpoena may be issued pursuant to Sec. 270.315.
Sec. 270.315 Subpoenas.
(a) General. Subpoenas requiring the attendance of witnesses or the
production of documentary or physical evidence for the purpose of
taking depositions or at a hearing may be issued only under the
signature of the Director with the concurrence of the General Counsel,
but may be served by any person designated by the Director.
(b) Determination whether to issue a subpoena. In determining
whether to issue a subpoena, the Director will consider the following
factors:
(1) Whether the testimony, documentary, or physical evidence is
required for an investigation being conducted pursuant to the Act;
(2) Whether the evidence sought is relevant to the purpose of the
investigation;
(3) Whether NIST already has the evidence in its possession; and
(4) Whether the evidence required is described with specificity.
(c) Contents of a subpoena. A subpoena issued by the Director will
contain the following:
(1) A statement that the subpoena is issued by the Director
pursuant to section 5 of the Act;
(2) A description of the documents or physical evidence or the
subject matter of the testimony required by the subpoena;
(3) A command that each person to whom it is directed attend and
give testimony or produce and permit inspection and copying of
designated books, documents or physical evidence in the possession,
custody or control of that person at a time and place specified in the
subpoena;
(4) A statement that any person whose testimony is required by the
subpoena may be accompanied by an attorney; and
(5) The signature of the Director.
(d) Service of a subpoena. Service of a subpoena will be effected:
(1) By personal service upon the person or agent of the person
whose testimony is required or who is in charge of the documentary or
physical evidence required; or
(2) By certified mail or delivery to the last known residence or
business address of such person or agent; or
(3) Where personal service, mailing, or delivery has been
unsuccessful, service may also be effected by publication in the
Federal Register.
(e) Witness fees. Witnesses will be entitled to the same fees and
mileage as are paid to witnesses in the courts of the United States.
(f) Failure to obey a subpoena. If a person disobeys a subpoena
issued by the Director under the Act, the Attorney General, acting on
behalf of the Director, may bring civil action in a district court of
the United States to enforce the subpoena. The court may punish a
failure to obey an order of the court to comply with the subpoena as a
contempt of court.
Sec. 270.316 Public hearings.
(a) During the course of an investigation by a Team, if the
Director considers it to be in the public interest, NIST may hold a
public hearing for the purposes of gathering testimony from witnesses
and informing the public on the progress of the investigation.
(b) Should NIST plan to hold a public hearing, NIST will publish a
notice in the Federal Register, setting forth the date, time, and place
of the hearing, and procedures for members of the public wishing to
speak at the hearing. In addition, witnesses may be subpoenaed to
provide testimony at a public hearing, in accordance with Sec. 270.315
of this subpart.
(c) The Director, or his designee, will preside over any public
hearing held pursuant to this section.
Entry and Inspection
Sec. 270.320 Entry and inspection of site where a building failure
has occurred.
When the Director establishes and deploys a Team, the Team members
will be issued notices of inspection authority
[[Page 4696]]
to enter and inspect the site where the building failure has occurred.
Sec. 270.321 Entry and inspection of property where building
components, materials, artifacts, and records with respect to a
building failure are located.
(a) In the course of an investigation, entry and inspection of
property where building components, materials, artifacts and records
with respect to a building failure are located normally will be
conducted following the procedures described in Sec. Sec. 270.322
through 270.325 of this subpart.
(b) Upon a written showing by the Lead Investigator of urgent and
compelling reasons to believe that building components, materials,
artifacts or records located on a particular property may be destroyed
were the procedures described in Sec. Sec. 270.322 through 270.324 of
this subpart followed, the Director, with the concurrence of the
General Counsel may immediately issue a notice of inspection authority
for such property, pursuant to Sec. 270.325 of this subpart.
Sec. 270.322 Voluntary permission to enter and inspect property where
building components, materials, artifacts, and records with respect to
a building failure are located.
After the Director establishes and deploys a Team, members of the
public are encouraged to voluntarily permit Team members to enter
property where building components, materials, artifacts, and records
with respect to the building failure are located, and take action
necessary, appropriate, and reasonable in light of the nature of the
property to be inspected and to carry out the duties of the Team.
Sec. 270.323 Requests for permission to enter and inspect property
where building components, materials, artifacts, and records with
respect to a building failure are located.
(a) After the Director establishes and deploys a Team, the Lead
Investigator or their designee may request permission to enter and
inspect property where building components, materials, artifacts, and
records with respect to a building failure are located, and take action
necessary, appropriate, and reasonable in light of the nature of the
property to be inspected and to carry out the duties of the Team.
(b) Requests for permission to enter and inspect such property will
be made in writing and shall include:
(1) The name and title of the building owner, operator, or agent in
charge of the building;
(2) If appropriate, the name of the building to be inspected;
(3) The address of the building to be inspected;
(4) The date and time of the inspection;
(5) If appropriate, a description of particular items to be
inspected; and
(6) Contact information for the person to whom questions or
problems regarding the request should be addressed.
Sec. 270.324 Negotiations.
The Lead Investigator may enter into discussions with appropriate
parties to address problems identified with the goal of obtaining the
permission requested pursuant to Sec. 270.323 of this subpart.
Sec. 270.325 Notice of authority to enter and inspect property where
building components, materials, artifacts, and records with respect to
a building failure are located.
(a) General. In investigating a building failure pursuant to the
Act, any member of a Team, or any other person authorized by the
Director to support a Team, on display of written notice of inspection
authority provided by the Director with concurrence of the General
Counsel and appropriate credentials, may
(1) Enter property where a building failure being investigated has
occurred, or where building components, materials, and artifacts with
respect to the building failure are located, and take action necessary,
appropriate, and reasonable in light of the nature of the property to
be inspected and to carry out the duties of the Team;
(2) During reasonable hours, inspect any record (including any
design, construction, or maintenance record), process, or facility
related to the investigation;
(3) Inspect and test any building components, materials, and
artifacts related to the building failure; and
(4) Move any record, component, material and artifact as provided
by this part.
(b) Conduct of inspection, test, or other action. An inspection,
test, or other action taken by a Team pursuant to section 4 of the Act
will be conducted in a way that does not interfere unnecessarily with
services provided by the owner or operator of the building components,
materials, or artifacts, property, records, process, or facility, and
to the maximum extent feasible, preserves evidence related to the
building failure, consistent with the ongoing needs of the
investigation.
(c) Determination whether to issue a notice of inspection
authority. In determining whether to issue a notice of inspection
authority, the Director will consider whether the specific entry and
inspection is reasonable and necessary for the Team to carry out its
duties under the Act.
(d) Notice of inspection authority. Notice of inspection authority
will be made in writing and shall include:
(1) A statement that the notice of inspection authority is issued
pursuant to section 4 of the Act;
(2) The name and title of the building owner, operator, or agent in
charge of the building;
(3) If appropriate, the name of the building to be inspected;
(4) The address of the building to be inspected;
(5) The date and time of the inspection;
(6) If appropriate, a description of particular items to be
inspected; and
(7) The signature of the Director.
(e) Refusal of entry on to property. If upon being presented with a
notice of inspection by any member of a Team, or any other person
authorized by the Director, the owner, operator, or agent in charge of
the building or property being inspected refuses to allow entry or
inspection, the Director may seek the assistance of the Department of
Justice to obtain a warrant or other authorized judicial order enabling
entry on to the property.
Preservation of Evidence
Sec. 270.330 Moving and preserving evidence.
(a) A Team and NIST will take all necessary steps in moving and
preserving evidence obtained during the course of an investigation
under the Act to ensure that such evidence is preserved.
(b) In collecting and preserving evidence in the course of an
investigation under the Act, a Team and NIST will:
(1) Maintain records to ensure that each piece of evidence is
identified as to its source;
(2) Maintain and document an appropriate chain of custody for each
piece of evidence;
(3) Use appropriate means to preserve each piece of evidence; and
(4) Ensure that each piece of evidence is kept in a suitably secure
facility.
(c) If a Federal law enforcement agency suspects and notifies the
Director that a building failure being investigated by a Team under the
Act may have been caused by a criminal act, the Team, in consultation
with the Federal law enforcement agency, will take necessary actions to
ensure that evidence of the criminal act is preserved
[[Page 4697]]
and that the original evidence or copies, as appropriate, are turned
over to the appropriate law enforcement authorities.
Information Created Pursuant to an Investigation
Sec. 270.340 Information created by investigation participants who
are not NIST employees.
Unless requested sooner by the Lead Investigator, at the conclusion
of an investigation, each investigation participant who is not a NIST
employee shall transfer any original information they created pursuant
to the investigation to NIST. An investigation participant may retain a
copy of the information for their records but may not use the
information for purposes other than the investigation, nor may they
release, reproduce, distribute, or publish any information first
developed pursuant to the investigation, nor authorize others to do so,
without the written permission of the Director or their designee.
Pursuant to 15 U.S.C. 281a, no such information may be admitted or used
as evidence in any suit or action for damages arising out of any matter
related to the investigation.
Protection of Information
Sec. 270.350 Freedom of Information Act.
As permitted by section 7(b) of the Act, the following information
will not be released:
(a) Information described by section 552(b) of Title 5, United
States Code, or protected from disclosure by any other law of the
United States; and
(b) Copies of evidence collected, information created, or other
investigation documents submitted or received by NIST, a Team, or any
other investigation participant, until the final investigation report
is issued.
Sec. 270.351 Protection of voluntarily submitted information.
Notwithstanding any other provision of law, a Team, NIST, any
investigation participant, and any agency receiving information from a
Team, NIST, or any other investigation participant, will not disclose
voluntarily provided safety-related information if that information is
not directly related to the building failure being investigated and the
Director finds that the disclosure of the information would inhibit the
voluntary provision of that type of information.
Sec. 270.352 Public safety information.
A Team, NIST, and any other investigation participant will not
publicly release any information it receives in the course of an
investigation under the Act if the Director finds that the disclosure
might jeopardize public safety.
[FR Doc. 03-2084 Filed 1-29-03; 8:45 am]
BILLING CODE 3510-13-P