[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Proposed Rules]
[Pages 309-312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-8239]


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CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD

40 CFR Part 1604


Accident Investigation Initiation Notice and Order To Preserve 
Evidence

AGENCY: Chemical Safety and Hazard Investigation Board.

ACTION: Proposed rule.

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SUMMARY: The Chemical Safety and Hazard Investigation Board (CSB) 
proposes the adoption of the following regulation that is intended to 
notify the owner and/or operator of a facility that suffers an 
accidental release as defined by the Clean Air Act Amendments of 1990, 
(also referred to here as a chemical ``accident'' or ``incident''), 
that the CSB intends to deploy investigators to its facility, and that 
relevant evidence must be preserved. Under this regulation, site 
control would remain the responsibility of the owner and/or operator of 
the affected facility. However, owners/operators are required by this 
regulation to exercise care to ensure that the accident scene and 
relevant evidence found therein is adequately protected from 
alteration.

DATES: Written comments must be received on or before February 3, 2005.

ADDRESSES: You may submit written comments concerning this proposed 
rule, by the following method:
     Mail/Express delivery service: Chemical Safety and Hazard 
Investigation Board, Office of General Counsel, Attn: Christopher 
Warner, 2175 K Street, NW., Suite 650, Washington, DC 20037.

FOR FURTHER INFORMATION CONTACT: Christopher Warner, 202-261-7600.

SUPPLEMENTARY INFORMATION: Preserving physical evidence at an accident 
scene is an important component in all manner of investigations. In a 
chemical accident investigation, securing an accident scene and 
preserving the integrity of the evidence contained therein is critical, 
especially where significant explosions or fires have destroyed some or 
much of the relevant physical evidence at the accident site. According 
to one good-practice guideline on chemical accident

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investigation, securing the scene in order to preserve evidence is the 
first priority of an investigator after all first responder 
responsibilities are met (i.e., to rescue victims and provide them with 
medical treatment, stabilize and secure the accident scene, and address 
imminent environmental concerns in accordance with controlling law). 
See, generally, Guidelines for Investigating Chemical Process 
Incidents, Center for Chemical Process Safety of the American Institute 
of Chemical Engineers, pp. 108-109, 115-122 (2nd ed. 2003), available 
in bookstores, libraries, and directly from CCPS at 3 Park Avenue, New 
York, NY 10016, or http://www.aiche.org/ccps.
    The CSB's enabling statute provides the CSB with broad authority to 
establish any regulations needed to meet the requirements of its 
investigative mission. Specifically, the Board is authorized to 
establish such procedural and administrative rules as are necessary to 
the exercise of its functions and duties. In addition to this broad 
statutory authority, the legislative history accompanying the CSB's 
enabling statute lists ``five enumerated duties'' for the Board, the 
third of which includes the duty to establish measures to preserve 
evidence which may substantiate the cause or probable cause of an 
accident. Pertinent legislative history also provides that Board 
regulations shall provide for the preservation of evidence at the site 
of the accident so that the Board may properly conduct an investigation 
to determine the cause or probable cause when its representatives 
arrive at the site of the accident. Moreover, Congress specifically 
intended that the CSB be empowered to regulate the activities of other 
parties during accident investigations undertaken by the CSB.
    Through this proposed regulation, the CSB intends to establish the 
means by which it will preserve accident scenes/sites, and the evidence 
within those sites. The CSB proposes a procedure by which it may issue 
a written ``Notice of Accident Investigation Initiation and Order to 
Preserve Evidence.'' The Notice shall identify the CSB's Investigator-
in-Charge (IIC), provide contact information, and an official 
investigation number. The Notice shall also specify that the owner/
operator continues to be responsible for the security and protection of 
its own site, including any real or personal property located therein, 
and that the owner/operator continues to be responsible for the 
protection of the life, health, and safety of its employees or any 
other people affected by the accident under investigation, as well as 
compliance with all federal, state, or local laws. Last, the Notice 
shall specifically inform the owner/operator of its legal obligation to 
preserve the accident site, to the maximum extent possible, in its 
original, post-accident state, and to preserve any evidence at the site 
that is or might reasonably be relevant to the CSB's investigation.
    The CSB recognizes that emergency response and mitigation 
activities will take precedence over the preservation of evidence and 
anticipates that most emergency response activities will be concluded 
prior to the issuance of a Notice under this rule. This rule is not 
intended to interfere in any manner with critical first response 
activities--the rescue of victims and necessary steps to address 
immediate public health and environmental concerns in accordance with 
controlling law. The rule defines such emergency response activities as 
``qualifying emergencies.'' In the event that an owner/operator 
anticipates changing or modifying the site or any evidence following 
the issuance of a Notice, the owner/operator would be required to 
contact the CSB and, if advance notice to the CSB is not possible, to 
document the condition of the site.
    The CSB is aware that there may be multiple Federal, state, and 
local agencies responding to an incident and each agency will have 
specific authorities and responsibilities. The regulation specifically 
states that it ``shall not be interpreted to abrogate or supersede any 
other Federal, State, or local agencies' ability to provide emergency 
response or to perform their duties arising under law.''
    The CSB coordinates its field investigative activities with other 
parties in accordance with the National Incident Management System and 
through memoranda of understanding with specific agencies. The CSB has 
Memoranda of Understanding with ATF, OSHA, EPA, NIST, and the NTSB 
which set out procedures for dealing with site specific issues. The CSB 
also works with owners/operators and other governmental responders to 
enter into site-specific evidence preservation agreements. Where such 
voluntary agreements can be entered into quickly and in a manner that 
does not compromise the CSB's investigation, a Notice under this rule 
may not be necessary, or if one is issued, it may be rescinded upon 
execution of such an agreement.
    This regulation does not address specific issues that may arise 
between Federal, State, and local agencies regarding custody of or 
testing of evidence in specific investigations. Such issues are worked 
out on a case-by-case basis with interested parties. The CSB, 
therefore, proposes the following rule to address critical issues 
surrounding evidence preservation in order that CSB investigators have 
the fullest possible opportunity to determine the causes of chemical 
accidents to which they are deployed. The CSB invites comments on these 
proposed regulations.

Regulatory Impact

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a rule that has a significant economic impact on a substantial number 
of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on such small entities. This analysis need not be 
undertaken if the agency has certified that the regulation will not 
have a significant economic impact on a substantial number of small 
entities. 5 U.S.C. 605(b). The CSB has considered the impact of this 
proposed rule under the Regulatory Flexibility Act. The CSB's General 
Counsel, Christopher W. Warner, certifies that this final rule will not 
have a significant economic impact on a substantial number of small 
entities.

Paperwork Reduction Act

    We reviewed this rule to determine whether it invokes issues that 
would subject it to the Paperwork Reduction Act (PRA). While the PRA 
applies to agencies and collections of information conducted or 
sponsored by the CSB, the Act, 44 U.S.C. 3518(c), exempts collections 
of information that occur ``during the conduct of * * * an 
administrative action, investigation, or audit involving an agency 
against specific individuals or entities,'' except for investigations 
or audits ``undertaken with reference to a category of individual or 
entities such as a class of licensees or an entire industry.'' The rule 
adopted below comes squarely within this exemption, as it deals 
entirely with administrative investigations and actions involving 
specific individuals or entities. Therefore, we have determined that 
the PRA does not apply to this rule.

Unfunded Mandates Reform Act of 1995

    This proposed rule does not require the preparation of an 
assessment statement in accordance with the Unfunded Mandates Reform 
Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal 
mandate that may

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result in the annual expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of more than 
the annual threshold established by the Act ($123 million in 2005, 
adjusted annually for inflation).

List of Subjects in 40 CFR Part 1604

    Administrative practice and procedure, Investigations.

    Dated: December 27, 2005.
Raymond C. Porfiri,
Deputy General Counsel.

    Accordingly, for the reasons set forth in the preamble, the 
Chemical Safety and Hazard Investigation Board proposes to add a new 40 
CFR part 1604 to read as follows:

PART 1604--NOTICE OF ACCIDENT INVESTIGATION INITIATION AND ORDER TO 
PRESERVE EVIDENCE

Sec.
1604.1 Purpose and Scope of Regulations.
1604.2 Definitions.
1604.3 Procedures.
1604.4 Enforcement.

    Authority: 42 U.S.C. 7412(r)(6)(N).


Sec.  1604.1  Purpose and Scope of Regulations.

    The purpose of this regulation is to provide for the preservation 
of evidence at the site of an accidental release so that the Chemical 
Safety and Hazard Investigation Board (CSB) may conduct a full 
investigation to determine the cause or probable cause of a release. 
This regulation applies only to an accidental release to which the CSB 
deploys or intends to deploy investigators as part of a Field 
Investigation Team or Preliminary Assessment Team, and only where the 
owner and/or operator of the facility that suffered an accidental 
release receives a ``Notice of Accident Investigation Initiation and 
Order to Preserve Evidence,'' as outlined in this rule.


Sec.  1604.2  Definitions.

    Accidental Release refers to an unanticipated emission of a 
substance regulated under 42 U.S.C. 7412, or other extremely hazardous 
substance into the ambient air from a stationary source resulting in a 
fatality, serious injury, or substantial property damages.
    Field Investigation Team refers to one or more CSB personnel, in 
the possession of appropriate credentials and a Notice of Inspection 
Authority, and led by a designated CSB Investigator-in-Charge (IIC), 
who has been authorized by the CSB to investigate an accidental 
release.
    Preliminary Assessment Team refers to one or more CSB personnel, in 
the possession of appropriate credentials and a Notice of Inspection 
Authority, and led by a designated IIC, that has been tasked by the CSB 
to make a preliminary factual analysis of an accidental release in 
order that the CSB can make an informed decision as to whether or not 
the CSB will undertake an investigation of an incident.
    Qualifying emergency refers to genuine emergency situations or 
circumstances that include:
    (1) Removing persons injured or trapped and obtaining for them 
needed medical attention or removing the remains of deceased persons;
    (2) Extinguishing fires;
    (3) Stabilizing an accident scene to the extent necessary to 
protect the facility from further imminent damage;
    (3) Protecting workers or the public from additional releases or 
other potential source(s) of injury;
    (4) Complying with any Federal, State, or local environmental laws 
requiring an immediate response (including but not limited to immediate 
accident reporting, clean up of any pollutants or hazardous substances, 
mitigation, etc.); and
    (5) Taking any other actions required to meet the lawful 
obligations imposed by any other Federal, State, or local laws.
    Preserve an accident site or scene refers to the obligation of a 
facility owner and/or operator to maintain and keep intact the status 
quo with respect to the site (or scene) of an accidental release, 
including but not limited to the part of the facility in which a 
chemical accident occurred, as well as the area immediately adjacent to 
the site of the accident. The ``accident site or scene'' portion of 
this definition must necessarily be flexible, and is to be determined 
based on an analysis of the totality of the circumstances. An accident 
site or scene could therefore be small, such as an accident that 
occurred indoors and is limited to a single room. Conversely, an 
accident site or scene could be quite large, such as when debris and 
other relevant evidence is scattered over a wide area following an 
explosion. This obligation necessarily includes but is not limited to 
the notification requirements in Sec.  1604.3(g).
    Protect any relevant evidence refers to the obligation of a 
facility owner and/or operator to ensure that any evidence within an 
accident site or scene is not tampered with, moved, or in any other way 
altered or changed, and the status and integrity of the evidence is 
protected from post-accident human intervention. This obligation 
extends to any personnel working for or on behalf of the owner/
operator. It also includes taking reasonable steps to protect any such 
evidence from third party intervention through appropriate security 
and/or other site control measures. The ``relevant evidence'' portion 
of this definition includes any structures, artifacts, machine(s), 
device(s), apparatus(es), process(es), control(s), equipment, 
sample(s), substance(s), and/or any other physical objects or documents 
that a reasonable person would believe might help establish the cause 
or causes of the accident under investigation. This obligation 
necessarily includes but is not limited to the notification 
requirements in Sec.  1604.3(g).


Sec.  1604.3  Procedures.

    (a) After a decision has been made by the CSB to deploy 
investigators to the site or scene of an accidental release, the CSB 
IIC designated to lead any type of CSB team at a particular accident 
scene may issue a Notice of Accident Investigation Initiation and Order 
to Preserve to the owner and/or operator of the facility that suffered 
the accident. Such a notice shall be issued whenever an IIC has 
determined that physical evidence at the site is in danger of being 
removed, altered, or tampered with. The Notice shall identify the IIC 
by name, and it shall also provide appropriate contact information, an 
official investigation number, and an estimate of when CSB personnel 
will arrive at the scene, if they have not already arrived. The Notice 
shall also specify that the owner/operator continues to be responsible 
for the security and protection of its own site, and any real or 
personal property located therein, and that nothing in this regulation 
or any subsequent site control agreement that might be entered into 
relieves the owner/operator of its obligations under law to protect the 
life, health, and safety of its employees or any other people affected 
by the accident under investigation, or any of its other obligations 
under any other federal, state, or local law.
    (b) In the same Notice, the IIC shall further inform the owner and/
or operator that the owner/operator is required to preserve the 
accident site or scene, and that the owner/operator must protect any 
relevant evidence therein which may assist the CSB in determining the 
cause or causes of the accidental release, subject to the provisions of 
paragraphs (c) and (d) of this section. Special attention should be 
given to preserve records; files; papers; electronic records; 
processes; controls; facilities; and samples of substances,

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physical objects, or any documents believed to be involved in the 
accident, or in any way relevant to the accident and/or the CSB 
investigation. With respect to records of any type, the Notice shall 
specify that an owner/operator is required to preserve relevant records 
that may be stored at a different location. The Notice will also 
indicate that such items shall also be made readily available to CSB 
personnel at the first reasonable opportunity.
    (c) Upon receipt of a Notice of Accident Investigation Initiation 
and Order to Preserve signed by a CSB IIC, an owner and/or operator 
must acknowledge receipt in writing and post a copy of the Notice of 
Accident Investigation Initiation and Order to Preserve in a 
conspicuous place such as in the immediate area of, adjacent to, or at 
the entrance to, the machine(s), device(s), apparatus(es), process(es), 
control(s), equipment, sample(s), or substance(s) and any other 
physical objects or documents that are believed to be relevant in 
determining the cause(s) of the accident. An owner/operator should post 
additional copies of the notice at different areas of the scene if that 
would aid site preservation. In addition, the owner and/or operator 
must comply with the Order to the maximum extent possible, and must 
refrain from any activity that would affect the accident scene/site, or 
potential evidence contained therein, except to the extent necessary to 
respond to a qualifying emergency as defined in Sec.  1604.2.
    (d) When it appears it will become necessary to disturb an accident 
scene/site or any evidence contained therein in any way prior to the 
arrival of CSB personnel due to the existence of a qualifying 
emergency, the owner or operator of the facility shall notify the CSB 
as soon as possible of the existence of a qualifying emergency and 
allow the CSB the opportunity to: (1) Comment on the nature and extent 
of proposed alteration to the evidence or scene/site; (2) attempt to 
document the evidence/site through appropriate means, as quickly as 
possible, including through the use of a third party; or (3) seek other 
appropriate actions, including but not limited to an emergency court 
order in federal court to prohibit the proposed alteration to the 
evidence/site.
    (e) If advance notice to the CSB is not possible under the 
circumstances prior to the alteration of the accident site or evidence 
due to existence of a qualifying emergency, post-action written notice 
must be given to the CSB as soon as possible after the alteration, 
which must include the following: (1) A complete explanation as to why 
advance notice could not be provided to the CSB prior to altering the 
evidence/site; (2) a complete description of all actions taken, and by 
whom, to rectify the emergency; (3) a chronological timeline of events 
that includes all actions from the original accidental release through 
the termination of responsive activities required by the qualifying 
emergency; and (4) photographic or video evidence, and any other 
documentation (i.e., descriptive notes, sketches, or other such 
documentation) indicating the original position and condition of any 
evidence which had to be moved or altered, as well as any changes to 
the accident site itself.
    (f) A Notice of Accident Investigation Initiation and Order to 
Preserve shall remain in effect until the owner and/or operator of the 
facility in question receives written notice from the IIC or other CSB 
official designated by the Chairperson that the original Order to 
Preserve has been rescinded. A signed site control agreement does not 
negate or otherwise nullify a previously issued Notice of Accident 
Investigation Initiation and Order to Preserve unless such agreement 
contains a specific provision rescinding that Order.
    (g) This regulation shall not be interpreted to mean that the CSB 
is authorized to bar any party from entering an accident site to pursue 
their own independent investigation when that party is authorized by 
relevant law to enter the site and conduct an investigation. However, 
owners and/or operators of facilities that have suffered an accidental 
release, upon receipt of a CSB Notice of Accident Investigation 
Initiation and Order to Preserve, shall ensure that its employees, its 
contractors, and any third parties that might seek access to the 
owner's and/or operator's property, wherever it may be located, have 
been provided a copy of the Notice of Accident Investigation Initiation 
and Order to Preserve.
    (h) This regulation shall not be interpreted to abrogate or 
supersede the designation of the National Transportation Safety Board 
as the lead agency with respect to chemical accidents in the 
transportation sector, pursuant to 49 U.S.C. 1101 et seq.
    (i) This regulation shall not be interpreted to abrogate or 
supersede any other Federal, State, or local agencies' ability to 
provide emergency response or to perform their duties arising under 
law. In most instances, the actions taken by emergency responders 
should not conflict with the requirement to preserve relevant evidence. 
In the event that the owner and/or operator of a facility determines 
that preserving an accident scene or protecting relevant evidence under 
this rule is incompatible with the lawful demands of other governmental 
responders, the owner/operator must provide notice to the CSB under 
paragraph (d) of this section prior to altering the scene so that the 
CSB may attempt to resolve the issue, or if advance notice is not 
possible, document the condition of the site as provided under 
paragraph (e) of this section.


Sec.  1604.4  Enforcement.

    Upon a written showing by the IIC that relevant evidence may be 
altered or destroyed, the IIC may, with the concurrence of the General 
Counsel, immediately issue a subpoena for such evidence to the owner/
operator of the facility. If a person disobeys a subpoena issued by the 
IIC under this section, the Attorney General, acting on behalf of the 
CSB, may bring a civil action in a district court of the United States 
to enforce the subpoena. Instances of any knowing failure to comply 
with these regulations and/or the express terms contained in any Notice 
sent out pursuant to these regulations may also be referred to the U.S. 
Department of Justice, a local United States Attorney, or any State's 
Attorney General, for investigation and possible enforcement under 
applicable Federal or State law.

[FR Doc. E5-8239 Filed 1-3-06; 8:45 am]
BILLING CODE 6350-01-P