[Federal Register: January 4, 2006 (Volume 71, Number 2)]
[Proposed Rules]
[Page 309-312]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04ja06-31]
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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