[Federal Register Volume 68, Number 88 (Wednesday, May 7, 2003)]
[Rules and Regulations]
[Pages 24343-24345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11361]


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DEPARTMENT OF COMMERCE

National Institute of Standards and Technology

15 CFR Part 270

[Docket No: 021224331-3093-03]
RIN 0693-AB52


Procedures for Implementation of the National Construction Safety 
Team Act

AGENCY: National Institute of Standards and Technology, 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, is today issuing a final rule amending regulations found 
at 15 CFR part 270 implementing the National Construction Safety Team 
Act (``Act''). An interim final rule with a request for public comments 
containing general provisions regarding implementation of the Act and 
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 was published in the 
Federal Register on January 30, 2003. This final rule responds to 
comments received in response to the January 30, 2003 notice. The 
changes include clarifications and editorial corrections to several 
sections of the interim final rule.

DATES: This rule is effective on June 6, 2003.

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 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.
    In the near future, 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.

Summary of Public Comments Received by NIST in Response to the January 
30, 2003 Interim Final Rule, and NIST's Response to Those Comments

    NIST received two responses to the request for comments. One 
response was from a private, not-for-profit organization that develops 
international building codes. The second response was from a local 
government agency. A detailed analysis of the comments follows.
    Comment: One comment encouraged NIST to use a particular code 
development process. The commenter offered to assist NIST in developing 
and advancing the necessary code change proposals that will advance the 
recommendations of the investigation team.
    Response: This comment is outside the scope of this rulemaking.
    Comment: One comment stated that the proposed rule should consider 
specifying the criteria for the Team's deployment.
    Response: As required by section (c)(1)(B) of the Act, NIST will 
publish procedures ``defining the circumstances under which the 
Director will establish and deploy a Team'' in its notice of proposed 
rulemaking setting forth the remaining procedures necessary to 
implement the Act.
    Comment: One comment stated that ``[c]onsideration should be given 
to the question of whether a finding or establishing of ``the likely 
technical cause or causes of the building failure'' will have 
evidentiary weight or authority'', and if so, ``consideration should 
also be given to mandatory rights to a hearing or other participation * 
* *''.
    Response: By statute, ``[n]o part of any report resulting from such 
investigation, or from an investigation under the

[[Page 24344]]

National Construction Safety Team Act, shall be admitted as evidence or 
used in any suit or action for damages arising out of any matter 
mentioned in such report.''
    Comment: One comment stated that the proposed regulations may 
conflict with and override New York City inspection and enforcement 
procedures. Provisions should be considered that prevent NIST from 
interfering with such activities.
    Response: The Act and its implementing regulations pertain to the 
investigation into the technical causes of specific building failures 
and do not affect routine building inspections and enforcement 
activities by state or local government.
    Comment: One comment stated that the requirements in the proposed 
regulations should include the sharing of information at all levels of 
City agencies, and not only by ``law enforcement'' and should include 
local police, fire, etc.
    Response: NIST expects to work closely with state and local 
governments during NIST investigations of building failures.
    Comment: One comment stated that although the proposed regulations 
permit parties to retain copies of documentary evidence taken by the 
Team, the proposed regulations do not address how parties may gain 
subsequent access to the original documentary evidence and/or material 
samples, which may be needed for the preparation of claims and 
defenses.
    Response: The commenter apparently confuses the requirements for 
members of the public who are in possession of evidence with the 
requirements for investigation participants.
    Section 270.313(c), which governs requests for documentary evidence 
from members of the public, specifically requires a request to be in 
writing and to include, among other items, ``(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 * * *.'' Under this provision, 
members of the public who submit evidence to an investigation may keep 
the original and provide the Team a copy.
    Section 270.310 governs evidence collected by investigation 
participants who are not NIST employees. It requires that such 
investigation participants transfer original evidence to NIST, and 
retain a copy of the evidence only if necessary to carry out their 
duties under the investigation. This requirement ensures that all 
evidence collected during the course of an investigation be held in a 
central location for recordkeeping and chain of custody purposes.
    Comment: One comment stated that credentialing should be determined 
in collaboration with local law enforcement.
    Response: Credentialing must be accomplished in accordance with the 
laws and regulations governing Federal investigations.
    Comment: One comment suggested that NIST address the issue of when 
an investigation is concluded and the Team's authority dissolves.
    Response: NIST plans to include a provision addressing this issue 
in its planned notice of proposed rulemaking setting forth the 
remaining procedures necessary to implement the Act.
    Comment: One comment pointed out an inconsistency in the use of the 
terms ``evidence'' and ``information'' in Sec.  270.310. The same 
commenter suggested a revision to Sec.  270.312 to include both 
``evidence'' and ``information'.
    Response: NIST agrees that the use of both ``evidence'' and 
``information'' in Sec.  270.310 is confusing. Section 270.310 has been 
revised to replace the word ``information'' with the word ``evidence.'' 
This revision eliminates the need for the suggested revision to Sec.  
270.312.
    Comment: One comment identified an incorrect reference in Sec.  
270.314. The reference to Sec.  270.312 should instead refer to Sec.  
270.313.
    Response: NIST has corrected this error.
    Comment: One comment suggested that the term ``confidential 
information'' be defined in the regulations.
    Response: NIST has deleted the sentence in Sec.  270.312 that 
contains the only reference in the regulation to ``confidential 
information.'' The receipt and release of information is addressed 
elsewhere in the regulation.
    Comment: One comment suggested that Sec.  270.313(b) be revised by 
adding a requirement that requests for responses to written questions 
include a ``statement that the Director has established a Team, and 
that the Lead Investigator (name) has requested information.''
    Response: NIST believes that the language of Sec.  270.313(b)(1) is 
sufficient to make clear that the request is made under the authority 
of the Act.
    Comment: One comment suggested that Sec.  270.315 be revised by 
combining two of the factors the Director will consider in determining 
whether to issue a subpoena. Two of the factors NIST included in the 
interim final rule are: (1) Whether the testimony, documentary, or 
physical evidence is required for an investigation being conducted 
pursuant to the Act; and (2) Whether the evidence is relevant to the 
purpose of the investigation. The commenter suggested combining these 
two factors to read: ``(1) Whether the testimony, documentary, or 
physical evidence is relevant to an investigation being conducted 
pursuant to the Act.''
    Response: NIST disagrees with the suggested revision. Whether 
evidence is relevant to an investigation is an important factor to 
consider; however, not all relevant evidence is necessarily required 
for an investigation. NIST will only issue subpoenas for relevant 
evidence that is required for an investigation.
    Comment: One comment suggested that subpoenas either be signed by 
the General Counsel, in addition to the Director, or that subpoenas 
contain a statement that the General Counsel has concurred in the 
issuance of the subpoena. The commenter suggested that Sec.  
270.315(c)(5) be revised to reflect change.
    Response: Neither of these suggested changes is necessary because 
the existing regulations require the concurrence of the General Counsel 
prior to issuance of a subpoena.
    Comment: One comment suggested revising Sec.  270.315(d)(2) by 
adding the words ``return receipt requested'', to require that service 
of a subpoena will be by certified mail, return receipt requested, or 
delivery to the last known residence or business address of such person 
or agent.
    Response: NIST agrees. Section 270.315(d)(2) has been revised to 
reflect the change.
    Comment: One comment suggested paragraph (a) of Sec.  270.323 
repeat the words ``request permission to'' before ``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.''
    Response: NIST disagrees. The paragraph is clear as it was 
originally written.

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.

[[Page 24345]]

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 
Standards and Technology; Science and technology; Subpoena.

    Dated: May 2, 2003.
Karen H. Brown,
Deputy Director.

0
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

0
1. The authority citation for part 270 is revised to read as follows:

    Authority: Pub. L. 107-231, 116 Stat. 1471 (15 U.S.C. 7301 et 
seq.).


0
2. Section 270.310 is amended by revising the introductory text to read 
as follows:


Sec.  270.310  Evidence collected by investigation participants who are 
not NIST employees.

    Upon receipt of evidence pursuant to an investigation under the 
Act, each investigation participant who is not a NIST employee shall:
* * * * *


Sec.  270.312  [Amended]

0
3. Section 270.312 is amended by removing the last sentence.


Sec.  270.314  [Amended]

0
4. In Sec.  270.314, the reference to ``Sec.  270.312'' is revised to 
read ``Sec.  270.313''.

0
5. Section 270.315 is amended by revising paragraph (d)(2) to read as 
follows:


Sec.  270.315  Subpoenas.

* * * * *
    (d) * * *
    (2) By certified mail, return receipt requested, or delivery to the 
last known residence or business address of such person or agent; or
    * * *
* * * * *
[FR Doc. 03-11361 Filed 5-6-03; 8:45 am]
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