[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Rules and Regulations]
[Pages 4693-4697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2084]



[[Page 4693]]

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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.

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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

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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

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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

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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