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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: June 16, 2004 (Volume 69, Number 115)]
[Rules and Regulations]
[Page 33567-33571]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn04-12]
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DEPARTMENT OF COMMERCE
National Institute of Standards and Technology
15 CFR Part 270
[Docket No. 030421094-4155-02]
RIN 0693-AB53
Procedures for Implementation of the National Construction Safety
Team Act
AGENCY: National Institute of Standards and Technology, United States
Department of Commerce.
ACTION: Final rule.
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SUMMARY: The Director of the National Institute of Standards and
Technology (``NIST''), Technology Administration, United States
Department of Commerce (``Director''), issues a final rule that amends
regulations found at 15 CFR part 270, that implements the National
Construction Safety Team Act (``Act''). An interim final rule with a
request for public comments clarifying NIST's role in recommending
improvements to building codes, standards, and practices, and
clarifying the relationship between investigations conducted under the
Act and criminal investigations of the same building failure, and
establishing procedures regarding the establishment and deployment of
National Construction Safety Teams and for the conduct of
investigations under the Act was published in the Federal Register on
November 28, 2003. This final rule responds to comments received in
response to the November 28, 2003 document.
DATES: This rule is effective on July 16, 2004.
FOR FURTHER INFORMATION CONTACT: Dr. James E. Hill, Acting Director,
Building and Fire Research Laboratory, National Institute of Standards
and Technology, Mail Stop 8600, Gaithersburg, MD 20899-8600, telephone
number (301) 975-6850.
SUPPLEMENTARY INFORMATION:
Background
The National Construction Safety Team Act, Public Law 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; ensuring 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; providing 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 published an interim final rule with a request for public
comments in the Federal Register on January 30, 2003 (68 FR 4693),
seeking public comment on general provisions regarding implementation
of the Act and on provisions establishing 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, comprising Subparts A and D of the rule, are
necessary to the conduct of the investigation of the World Trade Center
disaster, already underway, and became effective immediately upon
publication. The comment period closed on March 3, 2003. On May 7,
2003, NIST published a final rule in the Federal Register (68 FR
24343), addressing the comments received.
NIST published an interim final rule with a request for public
comments in the Federal Register on November 28, 2003 (68 FR 66073),
seeking public comment on amendments to Sec. 270.1, Description of
rule; purpose, applicability, of the final rule to clarify NIST's role
in recommending improvements to building codes, standards, and
practices and to clarify the relationship between investigations
conducted under the Act and criminal investigations of the same
building failure; an amendment to the definition of Credentials,
contained in Sec. 270.2, to clarify that credentials are issued by the
Director and to better define the term; and an amendment to Sec.
270.313, Requests for Evidence, to clarify that collections of evidence
under that section are investigatory in nature and are not research.
NIST also sought public comment on procedures set forth in the interim
final rule regarding conflicts of interest related to service on a Team
(Sec. 270.106); defining the circumstances under which the Director
will establish and deploy a Team (Sec. 270.102); prescribing the
appropriate size of Teams (Sec. 270.104); guiding the conduct of
investigations under the Act (Sec. 270.200); identifying and
prescribing appropriate conditions for provision by the Director of
additional resources and services Teams may need (Sec. 270.204);
ensuring 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 (Sec. 270.202); providing for regular
briefings of the public on the status of the investigative proceedings
and findings (Sec. 270.206); providing for coordination with Federal,
State, and local entities that may sponsor research or investigations
of building failures (Sec. 270.203); and regarding other issues.
The comment period closed on December 29, 2003.
Summary of Public Comments Received by NIST in Response to the November
28, 2003, Interim Final Rule, and NIST's Response to Those Comments
NIST received ten responses to the request for comments. One
response was from a private, not-for-profit organization that develops
model
[[Page 33568]]
building codes. Two responses were from industry associations. One
response was from an association of local building officials, and one
response was from an association of state building officials. One
response was from a local government agency. One response was from the
NCST Federal Advisory Committee, and three responses were from
individual members of that committee. A detailed analysis of the
comments follows.
General Comments
Comment: One commenter expressed the view that it is important to
the future of the public's health, welfare and life safety that the Act
be adequately funded by Congress at the earliest time possible.
Response: This comment is outside the scope of this rulemaking.
Comment: One commenter recommended that the regulations provide for
the establishment of a directory of pre-approved and credentialed
individuals that are available to act as Team members.
Response: NIST intends to establish such a list under its internal
procedures.
Comment: One commenter recommended deleting the word ``technical''
from the causes of building failure and from the aspects of evacuation
and emergency response procedures in Sec. 270.100(b) because it limits
the work of Teams.
Response: The Act requires NIST to assess the technical causes of
building failures. Specifically, section 2(b)(2)(A) and (B) of the Act
state that a Team shall establish the likely technical cause or causes
of the building failure and that a Team shall evaluate the technical
aspects of evacuation and emergency response procedures.
Comment: One commenter recommended that NIST revise the first
sentence of Sec. 270.1(b)(1) by expanding the stated purpose of
investigations by Teams to include improving ``the safety of building
occupants and emergency egress and response measures.''
Response: NIST has revised Sec. 270.1(b)(1) by adding language
contained in the preamble to the Act. The preamble states that the
purpose of the Act is ``to provide 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.''
Comments Regarding Criteria for the Establishment and Deployment of Teams
Comment: One commenter recommended that NIST develop and include
language that specifically describes situations that will result in
investigation by a Team and that the language should be similar, in
detail and description, to that currently used by the National
Transportation Safety Board (``NTSB'').
Response: The Act authorizes the Director to establish a Team for
deployment ``after events causing the failure of a building or
buildings that has resulted in substantial loss of life or that posed
significant potential for substantial loss of life.'' The variety of
``events'' that could cause building failures yielding such results is
extremely broad. In addition, the same type of ``event'' might in some
circumstances cause a building failure yielding such results and in
other circumstances might not cause a building failure or might cause a
building failure that does not result in substantial loss of life or
pose significant potential for substantial loss of life. The broad
nature of this authority requires broad discretion for the Director in
determining whether a particular event results in a situation that is
within the scope of the Act. In addition, NIST has reviewed the NTSB
criteria and finds that the criteria set forth in Sec. 270.102 are
similar in detail and description to that currently used by the NTSB.
Comment: One commenter recommended that NIST work cooperatively
with the construction industry and with the building and fire
regulatory communities to define the terms in the Act ``substantial
loss of life or a potential for substantial loss of life.''
Response: The Director's decision to establish a Team after an
event that caused the failure of a building or buildings that resulted
in substantial loss of life or posed significant potential for
substantial loss of life will require consideration of the entire
context of the building failure, the event that caused it, the
likelihood that an investigation will likely result in significant and
new knowledge or recommendations for building code revision, and the
factors identified in Sec. 270.102(b). Not defining ``substantial loss
of life or a potential for substantial loss of life'' leaves the
Director with the broad discretion needed to make this determination.
Comment: Two commenters recommended changing the wording of Sec.
270.100(a) to indicate that historically, in the United States,
building failures from fires, earthquakes, hurricanes, tornadoes, and
other disasters that have resulted in a substantial loss of life or
that posed significant potential for substantial loss of life have
occurred several times per year, rather than less than once per year.
Response: NIST has revised Sec. 270.100(a) to state that NIST
expects that the Director will establish and deploy a Team to conduct
an investigation at a frequency of approximately once per year or less
based on prior NIST experience.
Comment: One commenter stated that Sec. 270.100(b) requires an
editorial correction as follows: ``Teams established under the Act and
this part will investigate these'', change ``these'' to ``the''.
Response: NIST disagrees. In Sec. 270.100(b), ``these'' refers
back to the building systems described in the previous sentence, the
failure of which could be a technical cause of a building failure.
Comment: One commenter recommended that the wording in Sec.
270.102(a)(1)(ii) be changed to read: ``a fire that resulted in a
building failure of the building of origin and/or spreads beyond the
building of origin.''
Response: NIST has revised the referenced section to read ``a fire
that resulted in a building failure of the building of origin and/or
spread beyond the building of origin.''
Comment: One commenter stated that the Federal Response Plan cited
in Sec. 270.102(a)(1)(iv) had been revised and renamed the National
Response Plan. The commenter recommended that NIST revise that section
to reflect this change.
Response: NIST has changed the reference in Sec. 270.102(a)(1)(iv)
to read ``National Response Plan.''
Comment: One commenter recommended deleting paragraph 270.102(b)(4)
because it is highly unlikely that an NCST investigation would
substantially duplicate local or state capabilities, and replacing it
with ``Whether an investigation is likely to result in relevant
knowledge for mitigation of the building failure.''
Response: NIST disagrees. NIST will retain the original language of
paragraph 270.102(b)(4) to make clear that no matter how infrequently
the situation occurs, in deciding whether to establish and deploy a
Team, the Director will consider whether an NCST investigation would
substantially duplicate a local or state investigation. NIST has
revised Sec. 270.102(a)(2) to address the importance of gaining relevant
[[Page 33569]]
knowledge for mitigation of building failures.
Comments Regarding the Size and Composition of a Team
Comment: Two commenters suggested adding structural and electrical
engineering to the disciplines that may be represented on a Team as
listed in Sec. 270.104(b)(5).
Response: NIST agrees and has added these disciplines.
Comment: One commenter recommended adding Code administration and
enforcement to the disciplines that may be represented on a Team as
listed in Sec. 270.104(b)(5).
Response: NIST disagrees. Code administration and enforcement are
not disciplines that would participate in investigating the technical
causes of a building failure. Rather, they are disciplines involved in
the implementation of recommendations resulting from an investigation.
If the expertise provided by these disciplines is needed in the course
of an investigation, NIST may engage appropriate representatives as
contractors or consultants to the Team, but it is unlikely that they
would be Team members.
Comment: One commenter suggested that Teams involve the local
building official in the investigation and draw on the resources of the
local building department during investigations.
Response: Section 6(3) of the Act states that in order to support
Teams in carrying out the Act, the Director may ``confer with employees
and request the services, records, and facilities of State and local
governmental authorities.'' When appropriate, local building officials
may be requested to serve on or support Teams in their investigations.
If a local building department possesses evidence necessary to an NCST
investigation, it may voluntarily submit such information to NIST
pursuant to 15 CFR 270.312.
Comments Regarding the Duties of a Team
Comment: One commenter recommended that Sec. 270.105(b)(3) be
revised to include that in addition to recommending, as necessary,
specific improvements to building standards, codes and practices based
on its findings, a Team be required to provide the supporting rationale
for each recommendation.
Response: Supporting rationale for a Team's recommendations will be
included in its report as required by section 8 of the Act and Sec.
270.205(a) of the regulations.
Comment: One commenter requested that NIST change the word
``Cooperate'' in Sec. 270.105(c)(6) to ``Not impede'' to describe a
Team's interaction with State and local authorities carrying out any
activities related to a Team's investigation.
Response: Section 4(c)(4) of the Act requires a Team to cooperate
with State and local authorities carrying out any activities related to
a Team's investigation.
Comment: One commenter requested that NIST remove from Sec.
270.105(d)(4) the authority to move, or to further articulate the
nature of the ``records'' to be moved as a result of the investigation.
The commenter questioned whether this authority includes the official
records of the jurisdiction.
Response: No change has been made in response to this comment. The
authority to move such records is granted by section 4(a)(4) of the
Act. The Act limits this authority by stating that it is to be carried
out ``as provided by the procedures developed under section 2(c)(1).''
The procedures for collection and preservation of evidence are set
forth in subpart D of the regulations.
Comments Regarding the Conduct of Investigations
Comment: One commenter asked that NIST add an additional task to
the list of tasks that may be completed during an investigation. The
commenter requested that NIST add a new paragraph 270.200(c)(2)(xii):
``Review best practices in codes adoption and administration to
determine the extent to which the circumstances that led to this
building failure have statewide, regional or national implications.''
Response: NIST agrees that this is a task that might be completed
during an investigation that proceeds beyond preliminary
reconnaissance. Rather than adding a new task, NIST has incorporated
this task into the task described in Sec. 270.200(c)(2)(ix) by
revising that section to read: ``Analyze the relevant building
practices, including code adoption and enforcement practices, to
determine the extent to which the circumstances that led to this
building failure have regional or national implications.''
Comment: One commenter recommended that NIST revise Sec.
270.200(c)(2)(iv) to require that the Team make a determination whether
the building was constructed in accordance with the adopted code,
determine what code was in force when the building was approved for
construction and identify any renovations, repairs, additions, etc.
that were made during the life of the building and how those were
addressed with respect to the adopted code at the time they were made.
Response: A Team may determine what code or codes were in force
when the building was designed and approved for construction, and
identify any renovations, repairs, additions, etc. that were made
during the life of the building and the relevant code provisions that
were in force when such work was done. However, determining whether a
building was built in accordance or complied with code requirements is
a code enforcement authority and is not part of the statutory authority
granted to NIST under the Act. As a result of its investigation, a Team
will recommend any changes to current building standards, codes, and
practices that would improve the safety and structural integrity of
buildings in the United States.
Comment: One commenter recommended that NIST provide additional
guidance in Sec. 270.200(c)(2)(v) on how a Team should identify the
most probable technical cause when no computer model is available to
address a particular issue.
Response: The tasks listed in Sec. 270.200(c)(2) are examples of
tasks that Teams might need to perform in conducting an investigation.
None of the tasks is required in any investigation, and it is not
possible to provide a complete list of every task that a Team might
need to perform to complete its investigation. If no computer model is
available, a Team will do what is necessary to reconstruct the event
and identify the most probable technical cause of the building failure
without a computer model.
Comment: One commenter recommended that Sec. 270(c)(2)(x) be
revised from ``Identify specific areas in building and fire codes,
standards, and building practices that may warrant revisions based on
investigation findings.'' To ``identification of specific criteria in
building and fire codes and standards and practices--with an
understanding that building and fire are broad and include mechanical,
electrical, e.g., all codes that warrant revisions, proposed changes to
those documents and development of supporting rationale.''
Response: The specific criteria differ from code to code. A Team
cannot address every change to every code in the United States that may
result from a Team's general recommendation for an improvement to
building codes. Each jurisdiction or industry will be responsible for
adopting changes to the
[[Page 33570]]
specific criteria contained in its codes, standards, and practices that
warrant change based on a Team's recommendation.
Comments Regarding the Priority of Investigations and the Coordination
of Investigations With Search and Rescue Efforts and With Federal,
State, and Local Entities
Comment: One commenter asked that NIST clarify that a Team would
have priority over civil litigants.
Response: No change has been made in response to this comment. The
Act does not provide NIST with authority for Teams to take priority
over civil litigants.
Comment: One commenter stated that, contrary to the wording of
Sec. 270.202, FEMA does not have local offices. The commenter
suggested that NIST revise the reference in Sec. 270.202 to read:
``including FEMA urban search and rescue teams, local emergency
management agencies, and local emergency response groups.
Response: NIST has made this change.
Comment: One commenter hoped that the NIST teams will realize that
search and rescue efforts and recovery efforts will be the top
priorities of local officials and that the NIST team should perform
their investigation in such a manner that they will not impede the
efforts of local officials.
Response: NIST recognizes that search and rescue efforts and
recovery efforts are the top priorities following a building disaster.
Section 4(c)(1) of the Act and Sec. 270.202 state that NIST will
coordinate its investigation with such efforts.
Comment: One commenter stated that notification of the
establishment and deployment of a Team by publication in the Federal
Register is too slow a process. The commenter recommended that NIST
should notify the jurisdiction's chief building code enforcement and
fire official, as well as neighboring local jurisdictions, of such
actions directly by phone or e-mail to establish a positive working
relationship and to expedite a cooperative working environment.
Response: NIST agrees. As required by section 2(a) of the Act and
implemented by Sec. 270.103 of the regulations, the Director will
promptly publish in the Federal Register notice of the establishment of
each Team. In addition, NIST will promptly notify appropriate
authorities having jurisdiction over a building failure site. NIST also
is in the process of contacting and establishing relationships with
state and local authorities with whom Teams conducting an investigation
may have to coordinate. With the help of other Federal agencies, NIST
is developing a list of the appropriate contacts in each jurisdiction
for the purpose of immediate notification of the establishment and
deployment of a Team.
Comment: One commenter recommended that NIST develop details and a
formal protocol document to spell out and facilitate cooperation with
state and local authorities in carrying out activities related to a
Team's investigation.
Response: NIST agrees. Section 270.203 sets forth NIST's intent to
enter into Memoranda of Understanding with Federal, State, and local
entities, as appropriate, to ensure the coordination of investigations.
Comments Regarding Reports
Comment: One commenter recommended that language be added to Sec.
270.205 to clarify the intended recipients of Team reports. The
commenter recommended that the primary recipients be organizations
which are private sector voluntary consensus standards writing
organizations operating under approved guidelines of the American
National Standards Institute (ANSI).
Response: All final Team reports will be made publicly available
and will be posted on the NIST Web site. NIST encourages standards
organizations to access the reports. NIST cannot take on the burden of
identifying all appropriate recipients of each Team's final report.
Comment: One commenter urged NIST to take care in framing and
briefing the press on recommendations from investigations so as to take
into consideration the potential impact on the construction industry,
government, leasing of buildings, and the public.
Response: NIST agrees and will do so, taking into account public
safety and welfare.
Comment: One commenter recommended that the reporting of ``any
recommended specific improvements to building standards, codes, and
practices,'' required by Sec. 270.205(a)(3) include specific code
changes with supporting rationale.
Response: Section 2(b)(2)(C) of the Act and Sec. 270.105(b)(3) of
the regulations state that a Team will recommend, as necessary,
specific improvements to building standards, codes, and practices based
on its findings. It is the responsibility of appropriate standards and
codes organizations and authorities to consider adoption of a Team's
recommendations and to develop specific code change proposals and
language. Section 9(2) of the Act authorizes NIST to promote
(consistent with existing procedures for the establishment of building
standards, codes, and practices) the appropriate adoption of its
recommendations by the Federal Government and encourage the appropriate
adoption of those recommendations by other agencies and organizations.
Reports will include the supporting rationale for any recommendations
made.
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.
List of Subjects in 15 CFR Part 270
Administrative practice and procedure; buildings and facilities;
disaster assistance; evidence; investigations; National Institute of
[[Page 33571]]
Standards and Technology; science and technology; subpoena.
Dated: June 8, 2004.
Hratch G. Semerjian,
Acting Director.
? For the reasons set forth in the preamble, title 15 of the Code of
Federal Regulations is amended as follows:
PART 270--NATIONAL CONSTRUCTION SAFETY TEAMS
? 1. The authority citation for part 270 continues to read as follows:
Authority: Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 7301 et seq.).
? 2. Section 270.1 is amended by revising the first sentence of paragraph
(b)(1) to read as follows:
Sec. 270.1 Description of rule; purpose; applicability.
* * * * *
(b)(1) The purpose of the Act is to provide 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. * * *
* * * * *
? 3. Section 270.100 is amended by revising paragraph (a) to read as
follows:
Sec. 270.100 General.
(a) Based on prior NIST experience, NIST expects that the Director
will establish and deploy a Team to conduct an investigation at a
frequency of approximately once per year or less.
* * * * *
? 4. Section 270.102 is amended by revising paragraphs (a)(1)(ii),
(a)(1)(iv), and (a)(2) to read as follows:
Sec. 270.102 Conditions for establishment and deployment of a Team.
(a) * * *
(1) * * *
(ii) A fire that resulted in a building failure of the building of
origin and/or spread beyond the building of origin.
* * * * *
(iv) An act of terrorism or other event resulting in a Presidential
declaration of disaster and activation of the National Response Plan;
and
(2) A fact-finding investigation of the building performance and
emergency response and evacuation procedures will likely result in
significant and new knowledge or building code revision recommendations
needed to reduce or mitigate public risk and economic losses from
future building failures.
* * * * *
? 5. Section 270.104 is amended by revising paragraph (b)(5) to read as
follows:
Sec. 270.104 Size and composition of a Team.
* * * * *
(b) * * *
(5) Teams may include members who are experts in one or more of the
following disciplines: civil, structural, mechanical, electrical, fire,
forensic, safety, architectural, and materials engineering, and
specialists in emergency response, human behavior, and evacuation.
* * * * *
? 6. Section 270.200 is amended by revising paragraph (c)(2)(ix) to read
as follows:
Sec. 270.200 Technical conduct of investigation.
* * * * *
(c) * * *
(2) * * *
(ix) Analyze the relevant building practices, including code
adoption and enforcement practices, to determine the extent to which
the circumstances that led to this building failure have regional or
national implications.
* * * * *
? 7. Section 270.202 is amended by revising the first sentence to read as
follows:
Sec. 270.202 Coordination with search and rescue efforts.
NIST will coordinate its investigation with any search and rescue
or search and recovery efforts being undertaken at the site of the
building failure, including FEMA urban search and rescue teams, local
emergency management agencies, and local emergency response groups. * *
*
[FR Doc. 04-13364 Filed 6-15-04; 8:45 am]
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