Accident Investigation Initiation Notice and Order To Preserve Evidence, 309-312 [E5-8239]
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Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules
decisions. The revised plan may
designate major rights-of-way corridors
for utility transmission lines, pipelines,
and water canals. The effects of such
designations on energy supply,
distribution, or use will be considered at
the time such designations are
proposed.
Controlling Paperwork Burdens on the
Public
This proposed rule does not contain
any additional record keeping or
reporting requirements or other
information collection requirements as
defined in 5 CFR part 1320 that are not
already required by law or not already
approved for use and, therefore,
imposes no additional paperwork
burden on the public. Accordingly, the
review provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.) and its implementing
regulations at 5 CFR part 1320 do not
apply.
Federalism
The agency has considered this
proposed rule under the requirements of
Executive Order 13132, Federalism. The
agency has made a preliminary
assessment that the rule conforms with
the federalism principles set out in this
Executive orders; would not impose any
compliance costs on the States; and
would not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government. Based on
comments received on this proposed
rule, the agency will determine if any
additional consultation will be needed
with State and local governments prior
to adopting a final rule.
Consultation With Tribal Governments
Civil Justice Reform
This proposed rule has been reviewed
under Executive Order 12988, Civil
Justice Reform. The agency has not
identified any State or local laws or
regulations that are in conflict with this
regulation or that would impede full
implementation of this rule.
Nevertheless, in the event that such a
conflict was identified, the proposed
rule, if implemented, would preempt
the State or local laws or regulations
found to be in conflict. However, in that
case, (1) no retroactive effect would be
given to this proposed rule; and (2) the
Department would not require the
parties to use administrative
proceedings before parties may file suit
in court challenging its provisions.
Unfunded Mandates
Pursuant to Title II of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1531–1538), which the President signed
into law on March 22, 1995, the agency
has assessed the effects of this proposed
rule on State, local, and Tribal
governments and the private sector.
This rule does not compel the
expenditure of $100 million or more by
any State, local, or Tribal governments
or anyone in the private sector.
Therefore, a statement under section
202 of the act is not required.
List of Subjects in 36 CFR Part 219
Administrative practice and
procedure, Environmental impact
statements, Indians, Intergovernmental
relations, Forest and forest products,
National forests, Natural resources,
Reporting and recordkeeping
requirements, Science and technology.
Therefore, for the reasons set forth in
the preamble, the Forest Service
proposes to amend subpart A of part 219
of title 36 of the Code of Federal
Regulations as follows:
PART 219—PLANNING
No Takings Implications
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This proposed rule does not have
tribal implications as defined in
Executive Order 13175, Consultation
and Coordination with Indian Tribal
Governments, and, therefore, advance
consultation with tribes is not required.
Authority: 5 U.S.C. 301; 16 U.S.C. 1604,
1613.
This proposed rule has been analyzed
in accordance with the principles and
criteria contained in Executive Order
12630, and it has been determined that
the rule does not pose the risk of a
taking of private property. This
proposed rule only allows the Tongass
National Forest to use either the existing
planning regulations or the regulations
in effect before November 9, 2000 for its
next plan revision.
2. Amend § 219.14 by revising
paragraph (d)(1) to read as follows:
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Subpart A—National Forest System
Land Management Planning
1. The authority citation for subpart A
continues to read as follows:
§ 219.14
Effective dates and transition.
*
*
*
*
*
(d)(1) Plan development and plan
revisions initiated after January 5, 2005
must conform to the requirements of
this subpart, except that the plan for the
Tongass National Forest may be revised
once under this subpart or the planning
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regulations in effect before November 9,
2000.
*
*
*
*
*
Dated: December 16, 2005.
Dale N. Bosworth,
Chief, USDA Forest Service.
[FR Doc. E5–8245 Filed 1–3–06; 8:45 am]
BILLING CODE 3410–11–P
CHEMICAL SAFETY AND HAZARD
INVESTIGATION BOARD
40 CFR Part 1604
Accident Investigation Initiation Notice
and Order To Preserve Evidence
Chemical Safety and Hazard
Investigation Board.
ACTION: Proposed rule.
AGENCY:
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
https://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-inCharge (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
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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.
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Such issues are worked out on a caseby-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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Federal Register / Vol. 71, No. 2 / Wednesday, January 4, 2006 / Proposed Rules
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
1604.2
1604.3
1604.4
Purpose and Scope of Regulations.
Definitions.
Procedures.
Enforcement.
Authority: 42 U.S.C. 7412(r)(6)(N).
§ 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.
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§ 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.
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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 § 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
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311
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 § 1604.3(g).
§ 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 § 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
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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
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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.
§ 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
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[DA 05–3209, Docket No. 02–106, RM–10416
and Docket No. 02–108, RM–10418]
Radio Broadcasting Services;
Harrisville and Presque Isle, MI
Federal Communications
Commission.
ACTION: Proposed rule, dismissal.
AGENCY:
SUMMARY: This document dismisses at
the request of Petitioner Northern Paul
Bunyan Radio Company its pending
petitions for rulemaking to allot
Channel 227A at Presque Isle, Michigan
in MB Docket No. 02–106, RM–10416
and to allot Channel 226A at Harrisville,
Michigan in MB Docket No. 02–108,
RM–10418. See 67 FR 39933, published
June 11, 2002. This document also
dismisses a counterproposal filed by
Northern Michigan Radio, Inc. which
proposes inter alia to reallot Channel
223C1 from Atlanta, Michigan to
Vanderbilt, Michigan, and conflicts with
both the proposals for Presque Isle and
Harrisville. The counterproposal is
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]]>Agencies
[Federal Register Volume 71, Number 2 (Wednesday, January 4, 2006)]
[Proposed Rules]
[Pages 309-312]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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 https://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
