Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests
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Final rule.
CFR Part: "40 CFR Parts 260, 262, 263, 264, 265, and 271"
RIN Number: "RIN 2050-AG20"
Citation: "79 FR 7518"
Document Number: "EPA-HQ-RCRA-2001-0032; FRL-9828-9"
"Rules and Regulations"
SUMMARY:
EFFECTIVE DATE: This final rule is effective as a final agency action on
ADDRESSES:
FOR FURTHER INFORMATION CONTACT: For further information regarding specific aspects of this document, contact
SUPPLEMENTARY INFORMATION:
I. General Information
A. Who is affected by this rule?
This rule affects approximately 160,000 entities in at least 45 industries that are involved in shipping off-site, transporting, and receiving approximately 5.9 million tons of RCRA hazardous wastes annually (non-wastewaters and wastewaters). These entities currently use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests (EPA Form 8700-22 and continuation sheets EPA Form 8700-22A) to track hazardous waste shipments from the site of generation to sites of treatment, storage, or disposal. These entities include but are not limited to: Hazardous waste generators; hazardous waste transporters; and owners and operators of treatment, storage and disposal facilities (TSDFs). The rule also affects state government agencies with authorized RCRA programs under 40 CFR Part 271, and governmental enforcement personnel dealing with hazardous waste transportation issues, who regularly use data from manifest for compliance monitoring, program management, and other purposes.
Significantly, this rule establishes the legal and policy framework for the national e-Manifest system authorized by the e-Manifest Establishment Act. This rule will allow manifest users to use an electronic hazardous waste manifest system with a goal of replacing the paper manifest forms. Once the national e-Manifest system is available, the use of electronic manifests will be the expected means for tracking hazardous waste shipments, although the Act and our regulations will allow users to currently opt out of the electronic manifest and continue to use the paper forms. We expect the use of electronic manifests to become the predominant means for tracking hazardous waste shipments. As we implement e-Manifest,
1. Docket.
2. Electronic Access. You may access this
II. Background
A. Proposed Manifest Revisions and Electronic Manifest Standards
On
With respect to electronic manifesting, the
In announcing the
In response to the
Other commenters criticized the decentralized approach more for the rigor and prescriptiveness of the standards that
Finally, several more commenters questioned the Agency's premise that a significant number of private entities would step in to actually develop electronic manifest systems. These commenters emphasized that the cost of developing a private system meeting
In summary, commenters on the
EPA was persuaded by these numerous comments to reconsider the merits of the proposed, decentralized approach. We recognized that we could not proceed to a final rulemaking on the electronic manifest without subjecting the electronic manifest options to additional analysis and without conducting additional stakeholder outreach on program options and preferences. As the public comments raised significant substantive issues,
B.
On
We gleaned several key messages from the
However, one of the most significant messages from the
C.
EPA found the comments and other input from the
Comments received in response to the
Hazardous waste generators within the private sector and within the Federal sector likewise submitted comments showing generally strong support for a centralized or national system approach to electronic manifesting. The comments of the generators generally supported the idea of electronic manifests being an option to paper manifests, while a few commenters indicated that electronic manifest use should be mandatory for all. While there was generally strong support among generators for the program direction announced in the
Members of the hazardous waste transportation industry expressed general support for the national system direction as well, but an association representing domestic truckers qualified its support with concerns about coordination with the DOT shipping paper, and concerns that hazardous waste transporters should not be the entities bearing user fee expenses. A trade association representing domestic railroads expressed support for the electronic manifest system, particularly if it were able to import all shipment data directly into the rail industry's existing electronic waybill system, and transmit the data directly between generators and waste management facilities, so that the railroads would be relieved of all requirements to process paper manifests.
State comments on the
D.
While the
In the
With respect to the CBI issue,
The comments received in response to the
E. Electronic Manifest Legislation
During
* Section 2(g)(1)(A) directs
* Section 2(b) directs the Agency to establish an e-Manifest system that may be used by any user within three years from the date of enactment of the Act, i.e., by
* Section 2(c) of the e-Manifest Act authorizes
* Section 2(d)(2)(A) of the e-Manifest Act authorizes the Secretary of the Treasury, upon request by the Administrator of
* Section 2(e) of the e-Manifest Act authorizes
* Meets the needs of the user community, including states that rely on manifest data,
* Attracts sufficient user participation and service fee revenues to ensure the viability of the system,
* Decreases the administrative burden on the user community, and
* Provides waste receipt data for the RCRA Biennial Report.
* Section 2(d)(3)(A) requires the submission to
* Section 2(d)(3)(B) provides for an annual audit by the
* Section 2(i) of the e-Manifest Act authorizes appropriations for each of fiscal years 2013-2015 for system start-up activities, with these development costs as well as operation and maintenance costs ultimately being offset by the service fees collected from manifest users under section 2(c) of the e-Manifest Act.
* Section 2(e)(3)(C)(iv) of the e-Manifest Act provides that one of several measures of successful contract performance for the e-Manifest system IT contract shall be the development of a system that provides the waste receipt data applicable to the RCRA biennial reports required under RCRA section 3002(a)(6).
* Section 2(f) of the e-Manifest Act directs
FOOTNOTE 1
FOOTNOTE 2
* Section 2(g)(1)(B) of the e-Manifest Act authorizes
* Section 2(g)(2) of the e-Manifest Act provides that
* Section 2(g)(1)(B) authorizes
F. Decision To Establish a National Electronic Manifest System
In order to implement the mandate under section 2(b) of the Hazardous Waste Electronic Manifest Establishment Act, and to respond to the many commenters and stakeholders who urged
We believe that the fee-funded nature of the electronic manifest IT contracting method will incentivize the contractor to develop a system with features that will be sufficiently attractive to users to warrant their participation in the e-Manifest system and their payment of service fees. Therefore, we believe that through the collaborative efforts of
While the establishment of the e-Manifest system announced today will satisfy one of several mandates of the e-Manifest Act, it will also confer substantial benefits. These benefits have always been the key drivers for the e-Manifest project, and they were the main impetus for the
Prominent among the non-economic benefits are: (1) Improved access to higher quality and more timely waste shipment data; (2) nearly real-time shipment tracking capabilities for users; (3) enhanced manifest inspection and enforcement capabilities for regulators; (4) more rapid notification and responses to problems or discrepancies encountered with shipments or deliveries; (5) greater access for emergency responders about the types and sources of hazardous waste that are in movement between generator sites and waste management facilities; (6) one-stop manifest copy submission to
FOOTNOTE 3 While the integration of e-Manifest and the collection of waste receipt data for the biennial report is included in the Act as one of several measures of successful performance of the e-Manifest IT contract, the details of biennial report integration are not included in today's rule but are being deferred to a later phase of e-Manifest implementation. END FOOTNOTE
EPA anticipates that once fully operational, electronic reporting should yield significant savings over the current paper manifest and will ease the reporting burden. When
FOOTNOTE 4 While EPA will include more current and detailed estimates of the anticipated costs and benefits from e-Manifest in the Regulatory Impact Analysis (RIA) that will accompany the upcoming Fee Rule, we have included these 2009 estimates as rough benchmarks for the magnitude of burden and cost savings that we believe are likely to result from a fully operational system that is broadly adopted by the user community. END FOOTNOTE
With the promulgation of today's final rule carrying out the requirements of the e-Manifest Act, the Agency will eliminate the remaining regulatory impediments to implementing an electronic manifest. In the discussion that follows,
Today's rule does not by itself impose direct costs or other impacts on the regulated community or on government. This action simply codifies several of the provisions of the e-Manifest Act and authorizes the use of the electronic manifests that will be available when the IT system is developed and operational.
III. Detailed Discussion of the Final Rule
A. Who will complete and submit electronic manifests?
Any entity that currently completes a hazardous waste manifest (EPA Form 8700-22) or continuation sheet (EPA Form 8700-22A) under federal or state law is expected to complete and submit these documents electronically, unless the entity opts out of the electronic system and submits the paper form, at such time as
FOOTNOTE 5
EPA is amending 40 CFR 260.10 to include a definition of "user of the electronic manifest" to implement this statutory provision. Consistent with the statutory definition, the regulatory definition provides that a "user of the electronic manifest" means a hazardous waste generator, a hazardous waste transporter, an owner or operator of a hazardous waste treatment, storage, recycling, or disposal facility, or any other person that: (1) Is required to use a manifest to comply with any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other material that is shipped from the site of generation to an off-site facility for treatment, storage, disposal, or recycling; and (2) Elects to submit either an electronic manifest form or currently submits a paper manifest (or data from such paper manifest) to the system. The regulatory definition in
This regulatory definition will also serve to make it clear that the availability of electronic manifests as a means to track waste shipments is no different than the current coverage of the hazardous waste manifest forms. Hazardous waste manifest forms are, with few exceptions, required to accompany all off-site shipments of RCRA hazardous waste. In addition,
The definition of "user of the electronic manifest" also is intended to clarify that the use of the electronic manifest format is the expected type of manifest submission for the user community, but that
While the use of the electronic manifest format is expected for users, the final rule clarifies that a system "user" includes those persons who continue to use the paper manifest forms after the establishment of the system and who must submit a copy of the paper manifest to the e-Manifest system in accordance with such regulations as
Use of the electronic manifest system for federal RCRA hazardous wastes is straightforward. In particular, since RCRA hazardous wastes are generally subject to manifest requirements in all states, the e-Manifest system will be available for tracking all off-site RCRA hazardous waste shipments, if all waste handlers named on the manifest choose to participate electronically. The e-Manifest system will also be available to track shipments of certain types of RCRA hazardous waste (e.g., universal waste under 40 CFR part 273 and small quantity generator (SQG) wastes subject to reclamation agreements under 40 CFR 262.20(e)) which may be exempted from the manifest requirements under federal regulation but are subject to the manifest requirements because of more stringent state laws. Similarly, the e-Manifest system will be available to track intrastate shipments of state regulated (or "state only") wastes that are subject to a manifest requirement in the state in which the waste is generated and managed, if the generator, transporter, and receiving facility elect to use the e-Manifest system.
EPA recognizes that shipments involving "state only" wastes and the use of the manifest may be particularly complicated for interstate waste shipments. In such cases, the waste may, for example, be hazardous under state law and subject to the manifest requirement in the generator's state, but not regulated as hazardous and thus not subject to a manifest requirement in the destination state. In other cases, the interstate waste shipment may not be subject to a manifest requirement until it enters the destination state. These more complex scenarios raise the question of when it is appropriate to track "state only" waste shipments with the e-Manifest system.
EPA believes that the definition of "user of the electronic manifest" and the nature of the e-Manifest system for manifest users provide the guidance to answer this question. The e-Manifest system is available to track "state only" hazardous waste shipments when either the generator state or the destination state (or both states) imposes a requirement under state law to use the hazardous waste manifest to track an off-site shipment of a waste, and all the waste handlers named on the manifest elect to use the e-Manifest system. A receiving facility in a state that does not require the manifest may receive a waste shipment subject to the manifest under the generator state's law. In such a case, the new authority of section 2(h) of the e-Manifest Act requires the receiving facility to complete the facility portion of the applicable manifest, to sign and date the facility certification, and to submit to the e-Manifest system a final copy of the manifest for data processing. Likewise, in the case of a waste that is not hazardous under the law of the generator state, but is a "state only" hazardous waste subject to the manifest in the receiving state, the e-Manifest system will be available to track these waste shipments and the receiving facility must close out such manifests through the system as required under section 2(h) of the e-Manifest Act. The e-Manifest system will be available to track these state-regulated waste shipments, if all the waste handlers named on the manifest elect to use the system for manifest tracking purposes. Thus, the scope of use for the electronic manifest is intended to be just as extensive as the scope of use of the current paper forms, with the additional limitation that the generator, transporter, and the receiving facility must all participate in the use of electronic manifests.
EPA emphasizes that the term "user of the electronic manifest" is limited to those members of the regulated community who are required to supply or use the manifest in connection with the shipment, transportation or receipt of hazardous wastes. The term "user of the electronic manifest" does not cover federal or state regulators, emergency responders, or others who may access the e-Manifest system only to access manifests or manifest data supplied to the system by the users of the electronic manifest.
B. Which documents can be completed and submitted electronically?
The electronic documents that can be completed and submitted electronically under today's final rule are limited to the standard electronic formats adopted by
C. For those persons who decide to use electronic manifests, what paper shipping documents may still be required?
While it is the intent of this rule to eliminate as far as practicable the reliance on the preparation and retention of paper records in connection with tracking hazardous waste and state-regulated shipments,
FOOTNOTE 6 DOT was recently directed by statute to conduct a pilot program addressing electronic shipping papers (Hazardous Materials Transportation Safety Improvement Act of 2012, sec. 33005); at this time, it is not clear whether and when this program (HM-Access) will be implemented as a paperless requirement.
It is important to distinguish clearly which wastes are "hazardous wastes" within the HMR and therefore subject to the requirement under the HMR to carry a hard copy of a shipping paper on the transport vehicle during transportation. DOT regulations at 49 CFR part 171 define those "hazardous wastes" that are subject to the HMR to mean "any material that is subject to the Hazardous Waste Manifest Requirements of the
For shipments that involve state-regulated or "state only" wastes that are not federally listed or characteristic hazardous wastes, the HMR does not apply. While these state-regulated wastes may be subject to a manifest requirement under state law, these wastes are not subject to the manifest under the 40 CFR part 262 or equivalent RCRA authorized state law counterpart regulations. Therefore, state-regulated or "state only" wastes are not hazardous wastes within the meaning of the HMR.
While the requirements under the HMR (for RCRA hazardous waste) to continue to carry a printed copy of the electronic manifest on the transport vehicles may appear to frustrate the attainment of a totally paperless manifest system, we have strived in this rule to minimize as far as possible the requirements for carrying and maintaining paper documents. Despite the continuing need to carry this printed copy of the electronic manifest, we believe that there will still be substantial reductions in paperwork burdens and forms/data processing costs for manifest users and regulatory agencies as a result of this final action. Moreover, at such time as DOT amends the HMR to authorize the use of an electronic shipping document to satisfy the accessibility requirement of 49 CFR 177.817(e), the supplying of an acceptable electronic shipping document will satisfy this requirement.
D. What are the major changes from the proposed rule's provisions?
The final rule differs from the
1. Implementation of Agency-wide Electronic Reporting Rule. Since the proposed rule of
2. Simplification of the electronic manifest regulatory standards. The greatest impact of this final rule on the regulatory provisions for the electronic manifest is a simplification of the standards that will govern the e-Manifest system. The proposed rule of
Since this final rule announces a national or centralized electronic manifest approach, it is no longer necessary to incorporate into regulatory standards so much of the prescriptive detail that was included in the proposed rule provisions on security, interoperability, and work flow. The technical details of system design, operation, and security will be left to the procurement phase of the e-Manifest project, such that it is not necessary to codify these provisions in the regulations. The basic premise of the final rule is that manifest users need only obtain and execute their electronic manifests on the national e-Manifest system that
In particular, as there will be only one national system developed in response to this final rule, and not multiple private systems, it will not be necessary to finalize the system validation requirements that were included in
We are also simplifying greatly the provisions on use of the electronic manifest that were included in
Second, the
E. What electronic formats are required for electronic manifests?
In section 262.20(a)(3) of the
In the
EPA received many comments in support of XML as the data exchange format of choice for defining a standard electronic manifest format for a web-based electronic manifest. These commenters pointed out that a web-based approach using XML for manifest data exchanges would be much more affordable than EDI. Other commenters suggested that a web-based approach using XML would be easier to upgrade with additional features, while other commenters suggested that XML had the greatest prospects as an electronic manifest format, since XML would likely be the standard for the foreseeable future with respect to web-based applications.
On the other hand, four commenters supported
Finally,
EPA agrees with the numerous comments that urged
Because there will be only one national e-Manifest system established under today's final rule, it is not necessary to promulgate as a part of this regulation the electronic exchange format that will be supported by the e-Manifest system. It is
We will also task the e-Manifest system IT vendor to conduct the necessary technical support effort with the rail industry so that the electronic manifest XML schema may exchange data with the EDI-based electronic waybill system now in place for rail shipments.
F. How will the e-Manifest system address information security?
In the
The detailed computer security controls were set out at section 262.26(c) of the proposed rule. The proposal requested comment on the following procedures and system controls:
1. Validation of the computer system by an independent, qualified information systems security professional, including a written assessment and certification that the system meets the required security standards and other specified criteria;
2. The ability to generate accurate and complete records in both electronic and human readable formats which could be made readily available for inspection and copying;
3. The ability to protect electronic records from all reasonably foreseeable causes of damage or corruption (e.g., accidental or intentional erasures or alterations, fire, heat, magnetism, water damage), to ensure the accurate and ready retrieval of electronic records during the entire retention period, and to provide secure back-up copies of records and data recovery in the event of an incident;
4. The ability to limit access to only authorized persons and to use authority checks (i.e., user IDs and passwords) to ensure that only authorized persons use the system;
5. The ability to provide and maintain a secure computer-generated and time-stamped audit trail for independently recording the date and time of operator entries and actions, and to establish a complete and accurate history of each record in the system;
6. Software-based operational system checks and work flow controls which implement and oversee the process for routing electronic manifests to waste handlers in the proper sequence, for providing necessary signature prompts so that manifests are signed in the proper sequence and signature blocks, for protecting data entered by previous handlers from alteration after they apply their signatures, and for ensuring the proper distribution of the manifest;
7. Software-based features which ensure that manifest data appear on displays in a human readable format which waste handlers could readily verify before they apply their electronic signatures, and that the system displays a required warning accompanying signature prompts, to remind the signer of the legal significance of using an electronic signature and the penalties for its unauthorized use;
8. Full interoperability of electronic manifest system features during the time a manifest resides on the system or is exchanged with other participating waste handlers, as well as full interoperability with any other electronic manifest systems with which manifests are exchanged;
9. Establishment of controls on systems documentation that describes how the system operates, how the components are installed and configured, how system security features are implemented, or how the system is maintained; and
10. Establishment of, and adherence to written policies that hold individuals accountable and responsible for actions initiated under their electronic signatures, in order to deter record and signature falsification.
EPA acknowledges that these system security controls were quite detailed, and that if implemented, they would have had considerable impact on any private entities that might have developed electronic manifest systems under the proposed rule approach. However,
Many commenters focused on the specificity and detail of the proposed security controls when framing their comments. We received strong and frequent comments criticizing the complexity and prescriptiveness of the electronic manifest proposal, particularly with respect to the proposed security controls. Several industry and state commenters suggested that the proposed security controls overwhelmed the proposal to the extent that users would be deterred from using the electronic manifest. Others pointed out that the security requirements for electronic manifests seemed to set a much higher bar than existed for paper forms signed by hand, and that there should be no more auditing or accountability mechanisms for electronic manifests than there are for paper and ink manifests. Several commenters further argued that
Thus, as previously discussed, this concern motivated several commenters to suggest that the decentralized approach itself was flawed, and that a centralized electronic manifest system was the most effective means to satisfy the security and interoperability concerns identified in the proposed rule, while minimizing the software investments of the regulated community. These commenters emphasized that a centralized system would obviate the need for work flow standards, interoperability standards, and third party audits of private systems, as well as alleviating the burden of communicating between state tracking systems.
We received other comments that objected more particularly to the proposed requirement for a third party audit to validate private systems. These commenters argued that
Since EPA has decided to adopt a centralized system approach for the e-Manifest system, it is no longer necessary to promulgate regulatory security controls in order to assure a level of consistency and security among various private systems. Thus, we are not codifying the proposed security controls as part of today's final rule. Because there will be one national e-Manifest system developed to host the transmission of electronic manifests, and the system will be operated by
G. What electronic signature methods are required?
1. Background. Section 2(g)(C) of the e-Manifest Act provides that
Section 2(g)(C) of the e-Manifest Act refers to the current manifest requirements by which: (1) The generator or offeror of the shipment certifies that the contents of a hazardous waste shipment are fully and accurately described on the manifest; and (2) the transporter(s) and the designated facility subsequently acknowledge or certify to the receipt of the hazardous wastes described on the manifest. Since the beginning of the hazardous waste manifest program in 1980,
After the publication of the proposed rule in
Thus, the
In the
We proposed the digital signature (encryption-based) method, because digital signatures establish the source of the document as the holder of the private encryption key, and they robustly bind the content of a signed electronic document to the signature such that it is impossible for the document to be modified without detection once signed. In our proposed rule, we explained that a digital signature involves the use of private key/public key cryptography, as it relies on the mathematical relationship between a pair of encryption "keys" (very large numbers) to execute and verify a signature. A more detailed description of the digital signature technology is presented in the preamble to the
As an alternative to the digital signature method, we also proposed in
EPA recognized at the time of the proposed rule that both the digital signature and secure digitized signature methods would involve greater hardware and software complexity and cost than the PIN or password method, but these methods also seemed to offer greater authentication strength with respect to identifying uniquely the individual signing an electronic manifest. While we indicated concerns in the
2. Comment Analysis.
EPA also received many comments from the regulated industry on the proposed electronic signature methods. A trade association for waste management firms suggested that a PIN-based system would be sufficient and cost-effective for electronic manifest signatures, suggesting further that the expense and complexity of both of the proposed signature methods were disproportionate to the number of enforcement actions that turn on the authenticity of manifest signatures. We also received numerous comments from the regulated industry suggesting that the digital signature method was too expensive and complex to be deployed in the electronic manifest context. By contrast, we received a number of comments from industry representatives who suggested that a digitized handwritten signature method could be implemented and used successfully for the electronic manifest. These commenters offered that digitized handwritten signatures provide a practical and cost-effective alternative to digital (encryption-based) signatures, and that they have been used successfully in commerce for years. Several commenters preferred the digitized signature because it best mimics the current process for signing paper manifests. In addition, we received several industry comments that echoed the view expressed in state-agency comments that the electronic manifest did not warrant elaborate electronic signature security, with one such commenter suggesting that any security burden imposed beyond that associated with the digitized signature method would act as a deterrent to the use of the electronic system. Finally, we received a comment from an industry trade association suggesting that
3. Final Rule Decision on Electronic Signature Criteria.
i. Introduction.
We have concluded that this technology neutral approach is appropriate, because as new authentication and signature technologies are identified over the years, the e-Manifest system will be able to adapt to and keep pace with these technology changes. It is also consistent with the Agency's electronic reporting regulation codified at 40 CFR part 3. For today's rule, therefore,
FOOTNOTE 7 Section 2(f) of the e-Manifest Act provides that
Second,
ii. Electronic Signature Selection Criteria. In this section of the preamble, the Agency explains the electronic signature method selection requirements that will guide
As of the development of this regulation, the requirement of a legally valid and enforceable electronic signature is governed by
a. CROMERR consistency. As discussed above,
b. Cost-effective and practical implementation for users. We believe that any electronic signature method selected for e-Manifest should be designed and implemented so that it will be cost-effective and practical for users. The goal is that the electronic signature methods will be generally acceptable to the user community in order to realize the benefits associated with widespread use of the system. Accordingly, we have specified in the rule that this is a factor that will be considered when
Since the initial implementation of the manifest system in 1980,
Congress emphasized the importance of broad user participation in e-Manifest in section 2(e)(3)(C) of the e-Manifest Act, which provides that a primary measure of successful performance of the IT system shall be the development of an e-Manifest system that "meets the needs of the user community," and that "attracts sufficient user participation and service fee revenues to ensure the viability of the system." Therefore, as with the other system components that affect the users' experience and ease of use of the system,
4. Final Rule Recommendation on First Generation System Signature Methods. Based on the comments received in developing this rule, and on our
FOOTNOTE 8 While the system would be designed to support both methods, it is intended that each e-Manifest signature would only implement one or the other of the two methods. END FOOTNOTE
EPA agrees with those commenters who suggested that an electronic signature method based on a PIN/password approach can meet our enforcement needs while simultaneously enjoying a high degree of user acceptance. We have also concluded that the digitized handwritten signature approach would likely enjoy a high degree of user acceptance, and we will be evaluating any peer reviewed studies so we can determine whether or not this approach can be forensically validated. Therefore,
The Agency does not intend at this time to support the proposed digital signature method (based on asymmetric encryption and a public key infrastructure or PKI). Our
EPA believes that the two signature methods recommended for use can be adapted to the electronic manifest business process for two distinct communities of electronic manifest users. We believe that the digitized handwritten signature method may be attractive to hazardous waste transporters and hazardous waste management firms that want to implement the electronic manifest across their enterprises by bringing mobile computer equipment (with digitizer pads or integrated signature devices for collecting signatures) to the sites of their generator customers, and tracking their hazardous waste pick-ups, their transportation on company vehicles, and their delivery of hazardous waste shipments to their company's permitted or interim status facilities. For those that would engage in electronic manifesting independently of such an enterprise-level implementation, either the digitized handwritten signature method or the PIN/password signature method could be available to sign electronic manifests. Our rationale for recommending these first generation methods is explained for each method below in sections G.5. (digitized handwritten signature) and G.6. (PIN/password) of this preamble.
5. Digitized Handwritten Signature.
i. Recommended Approach for CROMERR Compliance. The Agency is announcing that it now has tentative plans to implement a digitized handwritten signature method as one of the two methods of electronic signature that may be supported by the first generation e-Manifest system. As explained in more detail below, our plans for implementing this method are tentative at this time, because our ability to recommend one or more of these products is dependent on there being available such products of sufficient quality to meet our authentication needs, including support for any enforcement actions involving the manifest. While our initial literature searches and discussions suggest to us that such products may be available and sufficient for these purposes, we cannot make a final determination on the quality and suitability of these products until we obtain peer reviewed studies indicating the reliability of this signature technology in providing the forensic evidence that an expert witness (i.e., a federal document examiner) could rely upon if called to testify in any civil or criminal litigation involving a disputed signature.
Aside from the need for the reliability studies for these signature products, we found that there is considerable support for this signature method in the prospective user community. In particular, we found there to be support for this method in the public comments on the
EPA is also persuaded by the findings of our
As we discussed in the May, 2001 proposed rule, the digitized signature method that we proposed and now continue to evaluate and pursue for the first generation e-Manifest system would be captured as a dynamic signature (not a replay of a copy), and the signature would be bound to the manifest document content by a hash function to prevent unauthorized alterations to the signed content. The Agency anticipates that this method, if demonstrated by peer reviewed studies to be reliable, would be deployed primarily by those persons, including hazardous waste transportation companies or hazardous waste management companies, who choose to implement the electronic manifest across their company's operations with mobile equipment that they would bring to generator sites and carry on their transportation vehicles. The mobile equipment would accompany hazardous waste shipments in the same manner that the paper forms currently accompany waste shipments. The mobile equipment would enable hazardous waste management companies to access the e-Manifest system and to track the movement of their generator customers' waste shipments to their companies' permitted or interim status facilities. However, generators and independent hazardous waste transporters who frequently create or handle manifests may also choose this signature method even in the absence of enterprise-wide deployment, because the initial cost of signature pads and software should be greatly outweighed by time savings, reduced paperwork costs, and customer satisfaction.
As with handwritten signatures executed with ink on paper, digitized handwritten signatures may be described and recognized by the shape and form of the letters, loops, and other signature attributes that are recorded by the device. Thus, we expect that a digitized handwritten signature will present signature attributes that are, in combination, unique to a particular individual. We are also aware that there are some digitized signature pads and their supporting software which are capable of measuring the "signature dynamics" (e.g., speed, pressure, acceleration, sequential coordinates) of the signature act and maintaining a record of these forensic measurements that can be compared with other signature samples or exemplars. There are now a variety of digitized handwritten signature hardware and software products on the market, and based upon the Agency's examination of a few products' specifications and literature,
EPA believes that the high quality digitized signature products that may be suitable for the e-Manifest are those that have been or will be designed with enhanced forensic evidence capture, measurement and analytical capabilities, and that will enable handwriting experts and professional document examiners to give reliable expert opinion evidence on the authenticity of the digitized handwritten signatures in any civil or criminal litigation in which the signature authenticity may be in dispute. Thus,
FOOTNOTE 9 In 1994,
FOOTNOTE 10 The digitized handwritten signatures should improve signature quality by ensuring that a consistent quality signature is retained for all collected manifest signatures, regardless of the order in which the manifest was signed. Many paper manifest signatures today are carbon copy signatures of very uneven quality or legibility. END FOOTNOTE
We anticipate that validating peer reviewed studies will demonstrate that high quality digitized handwritten signature products produce valid electronic signatures for purposes of CROMERR. In this instance, the handwritten signature image data and the collected forensic evidence would constitute the "electronic signature device" for purposes of CROMERR. We also anticipate that validating peer reviewed studies will also demonstrate that the high quality digitized handwritten signature devices successfully capture and record information that is both unique to the signatory and sufficiently immutable that the resulting signature may operate similarly to a biometric for purposes of CROMERR. Since a digitized handwritten signature does not rely on a secret PIN or password code, CROMERR does not require a digitized handwritten signature to implement a second authenticating factor to show that it has not been compromised. Furthermore, as these signatures are in their nature handwritten signatures that will be authenticated based on their unique forensic evidence similar to conventional ink signatures, it should not be necessary to establish one's ownership of a digitized handwritten signature through a separate identity proofing process any more than it is necessary to engage in identity proofing of conventional handwritten signatures. /11/
FOOTNOTE 11 Moreover, since there is no showing required currently to establish that one signing a paper manifest is authorized to sign manifests for the entity that he or she represents, this rule does not require a separate identity proofing to establish the relationship of the owner of an electronic signature device to a particular entity. END FOOTNOTE
In order for digitized handwritten signatures to function as dependably as handwritten signatures executed with paper manifests, it is critical that this signature method be implemented with high quality digitized signature pads and software. Rather than codifying the performance and quality requirements for these devices in this final regulation,
* They produce handwritten signatures that may be captured and displayed with a sufficiently high resolution, e.g., at least 300 dots per inch;
* They collect forensic data, e.g., all three signature (x, y, and z) coordinates, time of signature, acceleration, or pressure, etc., and retain these data as a part of the signature record;
* They record all signature input data at a sufficiently high frequency to characterize accurately each signature act, e.g., at least 100 samples or reports per second;
* They can execute, on average, many individual signatures (e.g., 100,000) between failures, where failure involves the loss of any pixels in the signature image;
* They employ a "hash" function to digitally attach the signature to the data that are signed, so that alterations to the document contents can be detected;
* They are supported by software that can analyze the forensic signature measurements captured with each electronic signature, and that allows a trained, professional forensic document examiner to use the measurements and analysis to compare a given electronic signature with a signature exemplar submitted by the named signatory;
* They are supported by peer-reviewed studies which show that the technology has been thoroughly tested, that the known or potential error rate of the technology has been established and is acceptable, and that the technology reliably collects, processes, and interprets the forensic data from handwritten digitized signatures; and
* The forensic signature measurements and analyses performed by the software, and the comparisons of digitized handwritten signatures and exemplars conducted by a trained, professional document examiner, will enable a professional document examiner trained in the technology to provide expert opinion testimony, with a high degree of confidence, that a questioned digitized handwritten signature is or is not the authentic signature of the signatory.
ii. Interim Approach to Implementation. As discussed above, for the digitized signature method to be implemented as a fully CROMERR compliant and valid electronic signature, there must first be completed the peer reviewed studies showing the forensic reliability of this signature technology. However, in the event that
Under such an interim implementation,
While this interim solution might appear to be inconsistent with the goal of a fully paperless manifest,
We anticipate that this interim signature method could be used until such time as
To address the use of digitized handwritten signatures (or other electronic signature methods) during this interim period pending the completion of the tests (and peer reviewed studies) that would demonstrate the signature method's legal dependability or practicality, we have included appropriate regulatory provisions in this final rule. These special procedures will provide that the one printed copy of the manifest that is required by
6. PIN or Password Electronic Signature.
i. Introduction. In addition to the digitized signature method discussed above,
The main advantage of the PIN/password signature for these signatories is that a signature can be applied through any keypad-enabled device that can access the e-Manifest.
EPA received many public comments on the
While PINs/passwords have these drawbacks, the Agency believes that PIN/password-based electronic signatures can be implemented for the e-Manifest system in a manner that is both consistent with the CROMERR standards and at a cost that would not discourage use of the system. Manifest users have commented that PINs and passwords would be readily accepted by many prospective e-Manifest users, and our
ii. CROMERR Identity Proofing Requirements. By adopting the standards set forth in CROMERR, today's rule requires that the identity of those who would sign electronic manifests with a PIN or password electronic signature must be established with legal certainty. Section 3.2000(b)(5)(vii) of CROMERR addresses identity proofing by adopting a performance standard that requires that electronic reporting systems have a process for determining with legal certainty the ownership of an electronic signature device and the relation of the signatory to the entity on whose behalf he or she signs an electronic document. 70 FR 59848 at 59872. This provision of CROMERR requires that a system provide evidence sufficient to prove the device owner's identity and relation to an entity, particularly in the context where the signatory may have an interest in repudiating their own signature or their relationship to the entity on whose behalf the signature is executed. While
FOOTNOTE 12 Section 3.2000(b)(5)(vii) describes three identity proofing methods that have been deemed acceptable for electronic reports that are submitted to
iii. CROMERR Second Authentication Factor. CROMERR requires that any electronic reporting system collect evidence that demonstrates that an electronic signature device (such as a PIN or password) was not compromised at the time of use. When the electronic signature consists of a PIN or password, this feature of CROMERR operates to require a second authenticating factor that is collected contemporaneously with the signature to demonstrate with legal certainty that the PIN and password were not compromised at the time of use. We discuss below two approaches that we believe may be appropriate for the e-Manifest.
We should note that
a. Personal Question Challenge as Second Authenticating Factor. One approach that
The personal question challenge is recognized as a CROMERR compliant second authentication factor, and this method is therefore available for the e-Manifest system as a means to strengthen PIN/password electronic signatures. However,
b. Signature Witnessing as the Second Authenticating Factor for PIN/Password-Based Electronic Signatures. The "witnessed signature" approach takes advantage of a unique feature of the manifest business process--that is, that manifests are typically signed by one party to the manifest (e.g., the generator) in the presence of another party to the manifest (e.g., the initial transporter). Manifests are signed by the generator when they are certifying to the transporter that the hazardous waste shipment is properly described and marked, and in proper condition for transportation. They are signed by transporters and designated facilities to acknowledge the receipt of the hazardous waste from the prior handler.
For the witnessed signature approach,
FOOTNOTE 13 It is the witnessing of the signature act, and not the actual PIN or password, that is intended here. Obviously, PINs and passwords are intended to be secrets, so the signer must not disclose his or her PIN or password to the witness during the signature ceremony. END FOOTNOTE
EPA believes that the witnessed signature approach can be implemented without excessive cost or complexity at the sites where hazardous wastes are shipped and delivered.
EPA believes that the witnessed signature approach to strengthening a PIN/password signature will be most useful for executing the electronic signatures of hazardous waste generators. On the other hand, transporter and designated facility personnel who interact frequently with e-Manifest should have little difficulty recalling their PINs or passwords, or supplying the answers to their personal challenge questions. Thus, the witnessed signature approach we recommend here could be restricted to the strengthening of generator signatures, while transporter and designated facility personnel sign electronically with their PIN/passwords and respond to their personal question challenges for the 2nd authenticating factor.
When restricted to generator signatures, the witnessed signature approach would operate in the following manner. At the time of a hazardous waste pick-up by the initial transporter at a generator's site, the generator's representative would produce his or her government-issued picture ID (e.g., driver's license) to establish his or her identity to the transporter representative's satisfaction. The transporter's representative would check the license or other credential to ascertain that the identity claimed by the generator's representative is consistent with the presented credential. The generator and the initial transporter would then each sign the e-Manifest with their respective PINs or passwords in the other's presence. When the generator signs the generator's certification on the e-Manifest, the generator is merely completing the normal generator's/offeror's certification statements. When the initial transporter's representative signs with his or her PIN/password, the transporter representative's PIN/password signature both acknowledges the receipt of the hazardous waste from the generator, and certifies to witnessing the generator's signature, to checking the generator's identification, and to entering the last 5 digits of the generator representative's license number or other credential as evidence of the proofing ceremony. The generator and transporter each sign the electronic manifest once with their respective PINs or passwords, but the transporter's PIN/password signature carries the additional certification language indicating that the transporter vetted the identity of the generator.
While the above example would restrict the use of the witnessed signature approach to generator signatures that are witnessed by transporters, /14/ it is conceivable that the method could be used for other waste handler signatures as well. For example, the generator could similarly certify to witnessing the initial transporter's signature, and a transporter delivering hazardous waste to the designated facility could witness the signature of the designated facility using the same type of credential vetting and certification approach described above for the generator's signature. The witness in each case shall also enter the last 5 digits of the signatory's driver's license number (or other credential number) as a part of the witness certification. If the identity claimed by the signer is not consistent with the identification credential produced by the signer, the witness should not certify to the witnessing of the signature and should not participate further in the e-Manifest transaction.
FOOTNOTE 14 Whether the witnessed signature approach might be used only in connection with generator signatures or used more extensively is a system design issue that
To support the witnessed signature approach and its required certifications, the e-Manifest system's electronic signature module would be designed to prompt witnesses for the certifications and to collect the necessary certifications and license (or other credential) number data independently of the manifest form elements. The advantage to this is that the e-Manifest format would not itself need to be revised to accommodate this approach, and the same e-Manifest format that is supplied for e-Manifests signed with the digitized signature method or other e-signature methods could be used for PIN and password signatures.
EPA generally believes that the witnessed signature approach to PIN/password signatures will be more practical for the manifest user community to implement in a first generation system than other available technology-based second factor approaches that we have evaluated. We have also determined this signature method to be CROMERR-compliant, and we believe that this method can be implemented in a manner that is inexpensive and not excessively burdensome for the manifest users.
EPA emphasizes that the electronic signature methods described here for the first generation e-Manifest system are not intended to preclude consideration of other electronic signature approaches that are CROMERR compliant, nor is the description in this preamble of the witnessed signature approach intended to rule out other CROMERR compliant approaches for implementing a second authentication factor /15/ for the PIN or password signatures. The first generation methods described here are those for which we now have sufficient information /16/ to enable us to conclude that they are consistent with CROMERR and otherwise well-suited for the manifest business process.
FOOTNOTE 15 As authentication technologies mature and become more mainstream or cost-effective, authentication technologies based on tokens and biometrics may be found to meet the selection criteria. END FOOTNOTE
FOOTNOTE 16 As discussed previously, we are tentatively concluding that the digitized handwritten signature method may be CROMERR-compliant and suitable for e-Manifest, but a final evaluation of this method will depend on one or more of these products being shown to be reliable through peer-reviewed studies. END FOOTNOTE
H. Requirements for Obtaining and Using the Electronic Manifest
Under the
Based on the comments received in response to the
FOOTNOTE 17 This regulation does not affect or alter existing RCRA regulatory exemptions from the manifest requirement, e.g., the exemption for conditionally exempt small quantity generators at 40 CFR 261.5; the exemption for small quantities of hazardous waste reclaimed under reclamation agreements per 40 CFR 262.20(e); or the exemption for universal waste shipments in 40 CFR Part 273. END FOOTNOTE
Under SEC 262.20(a)(3) of this final rule, if electronic manifests are obtained, completed, and transmitted on the national e-Manifest system in accordance with this section's requirements, and signed electronically using the "valid and enforceable electronic signature" required under 40 CFR 262.25, then these electronic manifests shall be considered the legal equivalent of paper manifests signed with conventional ink signatures. Thus, this final rule authorizes the use of all electronic manifests that are obtained, completed, signed, and transmitted through the national e-Manifest system in accordance with the requirements of
Because electronic manifests will be directly reported to
The requirements for direct electronic reporting of compliance information to
By providing a consistent, national e-Manifest system that will be accessed through
FOOTNOTE 18 This statement applies in instances where the electronic manifest is signed with an electronic signature that has been determined to be legally valid and enforceable. As discussed in section G.5.ii. of this preamble, if a signature method is used on an interim or pilot basis pending testing, a single paper copy of the manifest will be required to be carried with the shipment to collect the ink signatures of waste handlers, and to be retained by designated facilities. END FOOTNOTE
FOOTNOTE 19 This regulation does not address retention of electronic manifests beyond the 3-year record retention period required of paper manifests.
EPA has included definitions in 40 CFR 260.10 to clarify the relationship between the electronic manifest and the e-Manifest system on which electronic manifests are obtained, completed, and transmitted. The term "electronic manifest" (or "e-Manifest") refers to the electronic format of the hazardous waste manifest that is obtained from
I. Public Access to Electronic Manifest Data
1. Introduction.
EPA received several public comments on the CBI related statements contained in the
Because of continuing questions that had been raised regarding the handling of manifest data, and whether these data should be entitled to CBI protection, the Agency requested further comment on public access and competitive harm issues in a NODA and request for comment that was published in the
EPA announced its proposed decision to establish a new categorical policy for addressing CBI claims for individual hazardous waste manifests for a couple of reasons. First, the public notice explained
The
2. Comment Analysis. State and waste industry commenters generally agreed with
Several state commenters indicated their general support for the position that aggregate manifest data should not be protected as CBI. The states with manifest tracking programs tend to freely disclose their manifest data to the public. One such commenter (NYDEC) indicated that it does not and never has honored CBI claims for manifest information. The commenter stated that manifest data should not be eligible for treatment as CBI, whether the data are submitted on paper or electronically. Another state commenter emphasized in its comments that anyone with relational database experience could already generate significant customer list information by downloading RCRA biennial report files that are now available from
Another commenter representing State governments (
Industry commenters generally did not support a categorical policy that would exclude aggregate manifest data from CBI protection. A trade association for the waste industry (
FOOTNOTE 20 In a subsequent clarifying comment, the ETC attempted to quantify the harm that would result, by asserting that if just 1% of a large member company's business were lost to competitors, the resulting financial loss could be in the range of
The commenter also stated that all of its member companies currently treat customer lists as "valuable and confidential" information within the meaning of FOIA and that courts have generally assumed great competitive harm would result from their disclosure. /21/ In addition, the commenter disagreed with the Agency's suggestion that requesters could obtain much of this aggregated manifest data from those states that have adopted less protective CBI interpretations, arguing that some states (e.g., CA) have specific statutory protections for customer lists, and that state courts have been more protective of such business information.
FOOTNOTE 21 Greenberg v.
Finally, a Federal sector generator (the
3. Legal Authority and States' Experience With Handling Manifest Data. In this section of the preamble,
i. Legal Authority. The Federal Freedom of Information Act, 5 U.S.C. 552(a), section 3007(b) of RCRA, and
Under these statutes and regulations, "business information" means information which pertains to the interests of a business, was acquired or developed by the business, and which is possessed by
Under 40 CFR 2.204 and 2.205, there are procedures specified for
a. The claim has not been withdrawn or waived;
b. The business has satisfactorily shown that it has taken reasonable measures to protect the confidentiality of the information, and that it intends to continue to take such measures;
c. The information is not, and has not been, reasonably obtainable without the business's consent by other persons (other than governmental bodies) by use of legitimate means; and
d. No statute specifically requires disclosure of the information and the business has satisfactorily shown that disclosure of the information is likely to cause substantial harm to the business's competitive position.
ii. States' Experience With Manifest Records. RCRA-authorized states with manifest collection and tracking programs have had much more experience than
The remaining seven states that responded to the ASTSWMO survey explained that manifest records would not qualify for CBI treatment under their states' public records laws. Several of these states make their manifest records freely available on state Web sites or by compact disk to anyone who requests them. These methods of fairly general public disclosure have not generated significant controversy among the waste facilities doing business in these states. Other states explained that because manifests are by their nature shared with numerous commercial entities and perhaps emergency responders while they are being completed and used, it would be extremely difficult to protect the confidentiality of the data, and, therefore, difficult to sustain a CBI claim. Similarly, several states in their ASTSWMO survey responses emphasized that manifest records and data can be obtained quite readily from a variety of legitimate means, including requests to other states, or by accessing summary data available from state or federal hazardous waste information systems.
In 2008, we requested clarifications from the five states (IL, MI, NJ, NY, and OH) that commented previously to either the
FOOTNOTE 22 In
Based on the requested clarifications, two states (NJ and NY) may directly or indirectly make aggregate data available to the public upon request.
In the case of Hazardous Waste Report data, four states (IL, MI, NJ, and NY) generally do not treat any data in these reports as CBI. The NYDEC has granted CBI claims, however, for certain information contained in hazardous waste reports, but has never granted a CBI claim based on manifest data contained in a report. The IL EPA makes manifest data available through hazardous waste reports, but does not allow CBI on any of its Hazardous Waste Report data. The OH EPA is the one state that does allow CBI claims for its Hazardous Waste Annual Reports.
4. Final Rule Decision for Individual Manifests. Based on the information now available to
First, we believe that any CBI claim that might be asserted with respect to individual manifest records would be extremely difficult to sustain under the substantive CBI criteria of 40 CFR part 2, Subpart B and of 40 CFR 260.2, because they must be shared with several commercial entities while they are being processed and used, and must be made available to emergency responders. A business that still desires to protect commercial information would find it exceedingly difficult to protect its individual manifest records from disclosure by all the other persons who come into contact with its manifests. For example, a business desiring to protect commercial information in the manifest context would need to enter into and enforce non-disclosure agreements or similar legal mechanisms with all its customers and other third parties and affected interests who might also be named as waste handlers on its manifests or who otherwise might be expected to come into contact with its manifests.
Second, as many states now require the submission of generator and/or TSDF copies of manifests, and the data from these manifests are often made publicly available or reported in federal and state information systems, it is apparent to
FOOTNOTE 23 Hazardous waste transporters that are authorized by CA to use CA's consolidated manifesting procedures must submit quarterly reports to the
Since the states have had far more experience than
FOOTNOTE 24 In January of 2007, the MI state representative on
Finally, we note that the comments submitted by members of the regulated industry in response to the
For these reasons, we believe that individual manifest records and the data contained in them should not be subject to CBI claims, since they are not entitled to protection as CBI in nearly all states that collect hazardous waste manifests. Since many manifests are available to the public without restriction in a significant number of states,
5. Final Rule Decision With Respect to Aggregate Manifest Data. As mentioned previously, industry and state commenters did not agree on the CBI policy that should apply to aggregate manifest data. While we understand industry's comments and concerns regarding the potential harm to a company's competitive position if aggregate data from multiple manifests could be obtained efficiently from
We would also note that
As we explain above--the states' current and long-standing policies generally favoring disclosure of all manifest data, the availability of much of this aggregate information from State data systems and the RCRA Biennial Report, and the difficulty of identifying objectively when a customer list would be disclosed to a competitor--do not support the policy of treating aggregated manifest data as CBI in the manner advocated by the regulated industry. Therefore, our final rule decision is to categorically exclude aggregate manifest data obtained from the e-Manifest system from CBI coverage.
While EPA is categorically denying CBI treatment to both individual manifests and to aggregate manifest collections or reports obtained in response to data queries or FOIA requests involving manifest data,
EPA indicated in our prior notices that it would not directly disclose manifest data that are "in process" or unverified to other manifest users or to other members of the public. We indicated that live or in process manifests would only be accessible by those waste handlers named on the manifests, as well as by regulators and emergency responders. We also proposed in the
Thus, in response to comments stating that our proposed 60-day time period for verification and correction of in process or incomplete manifest data was insufficient, and to respond to comments addressing the security concerns with waste shipments that are in process, we are adopting in this final rule our decision to amend 40 CFR 260.2(c)(2) to state that manifests are considered to be in process and subject to correction and verification for a period of 90 days.
This 90-day period for correction and verification of waste shipment information will be measured from the date of receipt of the waste by the designated facility, rather than from the date of the start of transportation. Until this 90-day period has passed, unless otherwise required by federal law, manifests are not considered complete and final documents and will not be disclosed directly to the public via on-line access to the e-Manifest system. During this period of restricted direct, on-line access to manifest data, the manifest information in the system will be fully available to regulators and to emergency responders. These in process manifests would also be available to local governments or police agencies that have been delegated inspection or program implementation responsibilities by their States. Hazardous waste handlers will also have direct access to those manifests on which they appear as the named handlers of waste shipments.
Therefore, this final regulation announces a 90-day period measured from the date of receipt of hazardous waste shipments by the designated facility during which only regulators, emergency responders, and the waste handler entities named on particular manifests will have direct on-line access to manifest data.
EPA emphasizes that the policy reflected in this regulation of restricting access to data for 90 days from the date of receipt of waste by the designated facility is limited to
1. Background. In the
FOOTNOTE 25
On the other hand,
2. Comment Analysis.
Among the industry comments favoring retaining the paper manifests, the points frequently raised in these comments were: (1) Small generators would lack the computer resources and would find that the needed IT investments would not be outweighed by cost savings, (2) the paper option would be a useful backup in the event the electronic system went down, (3) users might want to pull out of the e-Manifest system should they find the electronic manifest fees to be unreasonable, (4) the elective nature of the electronic system would incentivize the IT vendor to develop the best e-Manifest system at the lowest cost, and (5) the view that some companies may choose to continue to use paper manifests out of concern for information security issues and data confidentiality issues with the electronic system. The commenters who advocated a transition to mandatory use after two or three years supported their position with the comments that a two to three year period of optional use would give users time to prepare for the electronic system and for the system to prove itself. Such an approach would also signal that the program would not require the costs and implementation issues from a dual paper and electronic system to be borne permanently.
Among state-agency commenters on the
3. EPA Decision on Optional vs. Mandatory Use.
As EPA explains below in section III.K of this preamble, upon implementation of the e-Manifest system,
Therefore, as we prepare for the initial implementation of e-Manifest, this final rule implements the e-manifest as the expected tracking document for the manifest users in the RCRA regulated community, while allowing users to opt-out and continue to use the paper system as necessary. We have codified the definition of "user of the electronic manifest" in 40 CFR section 260.10 consistent with the definition of "user" in the e-Manifest Act, so that it is clear that users can choose to use the electronic manifest or opt out and continue to use the paper manifest forms.
While EPA believes that giving users the choice to use the electronic manifest format is consistent with the statutory definition of "user" discussed above, the Agency emphasizes that it is our goal to promote the use of electronic manifests by the user community to the maximum extent possible.
In section II.F of this preamble, we summarized the various economic and non-economic benefits of electronic manifesting, such as substantial paperwork cost savings and burden reductions for manifest users and states; the greater accountability that will likely result from nearly real time tracking capabilities, the much improved data quality from the manifest creation and editing aids that will be available in an electronic system; greater inspection and oversight efficiencies for regulators who can access manifests more readily with electronic search aids; greater transparency for and empowerment of communities with more accurate information about completed waste shipments and management trends; the savings and efficiencies of consolidating duplicative federal and state waste data reporting requirements with one-stop reporting, and the possible savings and efficiencies from integrating manifest and RCRA biennial reporting.
Witnesses representing the hazardous waste industry commented that mailing costs, for one company, alone are close to
When EPA originated the manifest program in 1980, it declined to collect copies of manifests for domestic waste shipments, believing that the burden of collecting and processing millions of manifests would overwhelm the Agency. Indeed, witnesses representing the hazardous waste industry commented that the paperwork burden of paper manifests is so significant that 22 states currently do not accept paper manifests [
We discuss in more detail the projected qualitative impacts of the electronic manifest in section VI of this preamble. There will clearly be substantial cost and burden hour savings as well from e-Manifest, which
EPA will monitor closely the metrics of electronic manifest use over time. While the electronic manifest is the expected submission format, as we transition toward full use of electronic manifests, users will be allowed to opt out and continue to carry and use paper manifests for tracking their hazardous waste shipments during transportation, and to submit paper manifests to the system. As suggested by the e-Manifest Act, we will explore fee-based and other incentives to promote the greater use of electronic manifests, particularly among hazardous waste transporters and designated facilities, as they will likely have the greatest impact on the volume of electronic manifest use. Moreover, to the extent that paper manifests continue to be used by some during the course of tracking the transportation of waste shipments, we will work with the designated facilities that receive these shipments to ensure that the data from the paper manifests is reported to the national system in an electronic data transfer. In this way, we believe that we can accomplish, in a fairly short time, nearly 100% of manifest data being received by the system electronically. Initially, by pursuing both objectives--maximizing electronic manifest use at the front end of the manifest process and maximizing electronic reporting of data from paper manifests at the back end of the process--we believe that we can eliminate the most burdensome aspects of collecting and processing paper manifests in the system, with the ultimate goal of 100% electronic manifests.
1. Background. One of the key assumptions underlying the electronic manifest is that the users of the manifest (i.e., those subject to manifest requirements), as well as the state regulators who collect and make use of manifest data, will realize substantial benefits and paperwork burden reductions as more manifests are completed and processed electronically. Indeed, the major savings associated with use of electronic manifests arise when we can eliminate or reduce the steps of manually completing, carrying, mailing, and filing manifest forms, as well as eliminating or reducing the steps needed to transpose data between legacy data systems and paper forms, and the steps needed to then re-key data from the paper forms back into the companies' or states' tracking systems after manifests have been finalized.
Under the approach to electronic manifest use announced in this rule, it is
Commenters on the
EPA considered several options to reduce the negative impacts of dual systems. The alternatives we considered were all aimed at simplifying the process for collecting paper forms, and at ensuring that the data collected from both electronic manifests and paper forms could be efficiently processed so that a comprehensive set of manifest data would be available to users and regulators. One option considered was for the authorized states to continue to serve as the collection point for paper manifests, while all electronic manifests would be collected centrally by the national system and distributed to states through their Exchange Network nodes or equivalent on the system. In order to establish a composite set of data, states would then be required to conduct any quality assurance on the paper form data, key-in the data according to a specified file format, and then upload the verified data to
As a second option for addressing the dual systems issue,
EPA considered still a third option, under which only the designated facility would be required to submit to the e-Manifest system its final copy of the paper manifests that continue in use after implementation of the e-Manifest system. In addition, the designated facility would pay an associated user fee for the data processing services performed by the system. Under this option, generators and transporters would not be required to submit their copies of paper manifests to the e-Manifest system. However, state-tracking programs that decide to continue to collect generator copies of manifests could do so under their state law requirements, as this option would only affect the collection of the designated facility copies by
2. Solicitation of Comment on Collection of Designated Facility Copy. Because this third option proposed a new federal record collection requirement that was not discussed in prior regulatory documents,
FOOTNOTE 26
3. Final Rule Decision. Based on the comments received, and the commenters' desire to not have dual manifest systems,
Under today's regulation, the designated facility must send to the e-Manifest system the top copy (Page 1 of the 6-page set) of the paper manifest form within 30 days of delivery of the hazardous waste shipment. The copy could be mailed to the e-Manifest system, or
For paper copies mailed to the system by designated facilities, the e-Manifest system operator would create or obtain an image file of each such manifest, and store it on the system for retrieval by state or federal regulators. The e-Manifest system operator would also key-in or extract the federal- and state-regulated waste data from these copies to the e-Manifest system.
EPA believes that this approach provides the most efficient solution to the dual paper/electronic systems problem during the transition to an electronic manifest system. It simplifies manifest copy submission for the designated facilities, which will only need to provide facility copies or data to one location--the national e-Manifest system--rather than supply copies to the many state agencies that now collect manifest copies. Further, it focuses the federal collection effort on the final designated facility copies of the form, which provide the best accounting of the quantities and types of wastes that were actually received for management. By providing a means to collect a complete set of waste receipts data from RCRA TSDFs (the merged set of paper and electronic manifest data), it also provides
Therefore, while
1. Background. In the
In particular, at the time of the proposed rule,
Similarly, we discussed what we considered to be a common situation where individual generator sites would not have their own on-site technology capability to participate in the e-Manifest system, but would participate in the e-Manifest system through the portable technology devices (e.g., a mobile computer) brought to the generator sites by a transporter or waste management facility participating in the e-Manifest system. In the latter instance, there would in fact be participation in the electronic manifest transaction by all the waste handlers, but the generators themselves would not need to obtain or use their own equipment in order to engage in electronic manifesting. Id. at 28273.
2. Comment Analysis. The proposed rule's discussion of electronic manifesting procedures for those cases where not all the waste handlers could participate electronically generated several comments from members of the regulated community and from state agencies. A commenter from the steel industry voiced support for this aspect of the proposal, as it would allow steel industry generators and designated facilities to begin using electronic manifests promptly, without having to wait for transporters to participate. Several other industry commenters stated in their comments that
State commenters joined with the industry commenters that the final rule should describe more clearly what would be required of waste handlers or states when one or more waste handlers do not use the electronic manifest. One state commenter also voiced a strong objection to the suggestion in the proposal that an electronic copy of a manifest could be submitted to a state without all the transporter signatures being included on the electronic manifest.
3. Final Rule Decision. After considering all the comments and the manual processing steps that would be required to support the proposed rule approach,
EPA considered an approach whereby non-participating transporters would be accommodated by requiring the generator to supply sufficient printouts of the electronic manifest for all non-participating transporters. We considered specifying in this rule detailed procedures calling for the various paper copies to be manually signed and dated by the non-participating transporters. These procedures would also have required information to be entered on the paper copies regarding electronic signatures, including the names of the persons signing the manifest electronically, the date of these electronic signatures, and the notation "signed electronically" in the paper copies' signature fields. We considered this approach, because we wanted the paper copies to present a complete log of the transportation history of the shipment, including the signature information, so that the entire record of the waste shipment could be preserved by merging the data from paper copies with the electronic manifest data for the shipment.
In the end, however, we decided not to adopt this approach for the final rule because we concluded that the various manual processing steps that would be necessary to sustain the tracking process would be too complex and burdensome to be justified. The manual processing steps and their burdens would likely exceed any savings that would arise from the shipment being tracked partially with the electronic manifest. In order to maintain full accountability for these shipments, it would have been necessary to supply another paper copy for the designated facility, so that the facility could forward this copy to the e-Manifest system for data processing purposes. This approach would have placed an additional responsibility on the
EPA proposed the partial electronic and manual process for non-participating waste handlers because we believed that this approach would enable many more manifests to be initiated electronically in the system and also would enable designated facilities to verify their waste receipt data electronically and to transfer the data to
This final rule requires the use of the paper manifest form in all instances where it is known at the outset of a waste shipment that one or more of the waste handlers named on the manifest will not participate in the electronic manifest, unless one of the parties can provide access to the electronic manifest system to other parties involved in the transaction through hand-held or other technology. This requirement is codified in the generator requirements at 40 CFR 262.24(c).
However, there may also be instances in which a manifest is initiated electronically, but a situation develops, after transportation has begun, under which the manifest cannot be fully completed electronically. For example, the e-Manifest system may go down or become unavailable to users after the waste has been delivered to the initial transporter. Similarly, a transportation vehicle may break down while the waste shipment is in transportation, and it may be necessary to substitute another transporter or another vehicle that does not participate in e-Manifest. For these and like situations, therefore, it is necessary for the final rule to establish procedures for the manual completion of manifests that are initiated electronically, but, for whatever reason, cannot be completed electronically.
For these unfinished electronic manifests, it is the responsibility of the waste handler in possession of the waste at the time the electronic manifest becomes unavailable to obtain a pre-printed manifest from a registered printer, or, reproduce sufficient copies of the printed manifest carried on the transport vehicle to comply with the DOT's HMR. If the electronic manifest becomes unavailable before the waste is delivered by the generator to the initial transporter, then the simple back-up solution for the generator is to obtain and complete the manifest using a pre-printed manifest obtained from a registered manifest printer. The back-up paper manifest is then completed and used by the generator and other handlers in the same manner as any other paper manifest. This requirement is set out at
If, however, the electronic manifest becomes unavailable after the generator has delivered the waste to the initial transporter, then the transporter then in possession of the waste must follow different procedures. These special procedures for "replacement manifests" are codified at
In such cases, the transporter in possession of the waste must reproduce sufficient copies of the paper copy that is carried on the transport vehicle (which copy becomes the "replacement" manifest) and complete all further tracking requirements with the replacement manifest. This transporter should produce enough copies so that the transporter in possession of the waste and all subsequent handlers named on the manifest will be able to keep a paper copy for their records. He or she must also produce two additional copies that will be delivered with the waste to the designated facility. One such copy will be sent to the generator by the designated facility, in accordance with normal manifesting procedures for paper manifests. The final copy must ultimately be forwarded to the e-Manifest system by the designated facility for data processing. The transporter must also make notations in Item 14 (the Special Handling or Additional Information Item) indicating that the copies are a replacement manifest for an electronic manifest that could not be completed and the tracking number of the electronic manifest that the replacement manifest replaces.
EPA recognizes that the transporter responsible for producing these copies may not be able to reproduce the paper copies at the very moment that he or she is aware that the electronic manifest is no longer available for the shipment, but the copies must be produced before the waste handler obtains the signature from the next transporter or the designated facility to which the waste shipment is being delivered.
From the point at which the electronic manifest is no longer available for tracking the waste shipment, the paper replacement manifest will be completed and managed just as it would be completed and managed with the standard paper manifest form. However, as the printed copies will lack carbon paper and thus will not enable printed impressions to be passed through to all remaining copies, the transporters and owner/operators entering signatures or other information on the printed copies will need to sign and enter their other information individually on all printed manifest copies in their possession. As the custody of the waste is transferred to subsequent waste handlers, the subsequent handler will sign all the printed copies to acknowledge receipt from the delivering handler, and the delivering handler will keep one such signed copy for its records.
At 40 CFR 264.72(g) and 265.72(g), we have promulgated the special procedures applicable to designated facilities that receive replacement manifests that accompany hazardous waste deliveries. In such cases, the designated facility must likewise sign the remaining printed copies at the time the waste shipment is ultimately delivered to the designated facility. Upon signing the remaining copies to acknowledge the receipt of the waste (or to note discrepancies), the designated facility must provide one copy to the delivering transporter, must keep one copy for its records, and must, within 30 days of receipt of the waste, send one copy to the generator and submit an additional copy to the e-Manifest system for data processing.
EPA believes that these procedures for replacement manifests will be sufficient for completing the tracking of waste shipments for those irregular and infrequent circumstances where the manifest is initiated electronically but cannot be completed electronically.
M. Manifest Corrections
It is likely that errors will be made on manifests and continuation sheets as there will be up to 5.6 million manifests a year with up to 278 data fields per shipment (manifest plus continuation sheet). The types of errors that occur most frequently (based on experience with the paper manifest) include nonexistent EPA ID numbers because of transposed numbers, incorrect dates (past or future), missing required data fields, such as quantity, units of measure, or waste codes (state or RCRA), reported units of measure that are not appropriate for the waste stream, and errors in the proper shipping name.
We expect that the number of errors requiring correction will be much less when the e-Manifest format is used, as the online system will provide pre-shipment verification for accuracy and completeness of all required fields. We also intend to include in the system features such as drop down menus to aid in the selection of data items, the ability to save and revise previously completed manifests, and the ability to pre-populate manifests based on saved templates and user profiles. While the number of errors should be reduced with these electronic aids, we will still need to design an e-Manifest system with the capability for generators, transporters, or designated facilities to make those corrections that were not prevented by the pre-shipment verification process or the other electronic aids. This process may require correcting each manifest separately or could allow block corrections of a set of manifests with the same error in waste code, EPA ID number, or other like field.
The larger e-Manifest data system will also include data obtained from paper manifest forms and submitted to the e-Manifest system in either image or paper form. These paper format manifests will not have any pre-creation edits and may have more errors that need correction. States that currently collect paper manifests and enter the data from these forms into electronic databases have experienced high levels of manifest errors.
Persons providing data on a manifest have an obligation to provide and submit accurate information. When data errors are discovered before, during or after a hazardous waste shipment, the errors should be corrected.
IV.
A. Introduction
Under the e-Manifest Act,
FOOTNOTE 27 The provision of e-Manifest services by
While the details of the e-Manifest system design and development will be fleshed out during the system planning and acquisition phases, we intend that the e-Manifest system will support the following high-level functions:
1. Electronic Manifest Creation:
* Support for all manifest data elements,
* Support for several user interfaces, including mobile device interface,
* Support for templates or other manifest creation short-cuts, and
* Support for edit checks, pull down lists, and other aids to improve data quality.
2. Manifest Format and Communications Standards:
* Data exchange standard (e.g., XML schema or equivalent) to enable data exchanges with industry and state data management systems, and manipulations of data,
* Presentation standard to enable e-Manifest display that is faithful to appearance of the paper form,
* Standardized communications protocols for transmissions between handler devices and system, and
* Data exchange between e-Manifest and the railroad industry's electronic waybill system, to facilitate shipments of hazardous waste by rail.
3. Document and work flow management:
* Work flow must support for "chain of custody" tracking of each hazardous waste shipment,
* Completion of manifest data elements and signatures in proper sequence without errors,
* Preservation of copies of record for key shipment statuses,
* Management of work flow by mobile applications while manifests reside on mobile devices, and
* Synchronization of mobile devices with Central System after off-line operations.
4. Electronic signatures and compliance with
* "Valid and enforceable electronic signatures" per this Rule and CROMERR, and
* Identity proofing as required.
5. Manifest data reporting:
* Standard reports and customized queries.
6. Manifest data access for states:
* Distribution of electronic manifests to states through the National Environmental Information Exchange Network.
7. Development of national manifest data repository:
* Repository to manage data from both electronic and paper manifests.
8. Standard processing of final copy of paper manifests from TSDFs:
* Imaging of final copies,
* Data import or data entry into national data system, and
* Quality checks and error reports for data import files.
9. Electronic payment and collection of user fees.
B. What system architecture will be used for hosting e-Manifest?
EPA will determine the preferred system architecture as we complete our Requirements and Alternatives Analyses, and determine the most practical and cost-effective means for fielding the e-Manifest services. One option that
FOOTNOTE 28
As stated previously, the performance requirements and detailed technical standards governing the design and operation of the e-Manifest system will be developed during the procurement action and system design rather than as a part of this final rule. We plan to award a contract to a vendor or vendors to develop and operate a national e-Manifest system that will be accessed through the Agency's CDX or an alternative hosting portal. After the vendor develops the e-Manifest system, it first must be evaluated and accredited for compliance with applicable internal and federal IT policies and standards on information security and privacy, and tested for consistent operation with system performance requirements before beginning its production operation. Therefore, once the evaluation process is complete,
V. State Implementation and Effective Date
A. Background
The issue of State Implementation of the electronic manifest involves two distinct considerations: (1) what are the impacts of RCRA state program authorization requirements on the authorized states' ability to implement and enforce the electronic manifest requirements announced in this final regulation; and (2) what are the impacts of CROMERR requirements insofar as requiring CROMERR-related authorization or approval of states' document receiving systems for electronic reporting. For the latter approval process, for example, CROMERR provides that where states choose to allow electronic reporting, they must modify their electronic reporting programs to demonstrate compliance with CROMERR's performance standards for electronic reporting programs at 40 CFR 3.2000.
With respect to the CROMERR authorization of states' electronic reporting programs, there are no such approval requirements resulting from this federal regulation. This regulation implements the e-Manifest Act's mandate calling for the establishment by
In the
Despite these concerns,
In addition, the
FOOTNOTE 29
B. Comment Analysis
Among the regulated industry, this issue generated perhaps the strongest and most consistent response. Industry commenters expressed the view in no uncertain terms that the electronic manifest would not succeed unless all states are required to adopt the electronic manifest requirements as a component of their RCRA authorized state programs. Several industry and federal facility commenters stated bluntly that the regulated industry would not make either the capital or manpower investments needed to support the electronic manifest unless they had reasonable assurances that electronic manifests would be recognized as valid in all states. In addition, industry comments supported the view that without a policy requiring the uniform adoption of the electronic manifest by the states, there would be serious burdens imposed on the free movement of waste from a patchwork of states both accepting and not accepting the validity of electronic manifests. Because of this possible outcome, one waste management facility suggested in its comments that
Among state agency commenters, there were several strong comments suggesting that the electronic manifest should not be a mandatory component of authorized state RCRA programs, at least at the outset of the electronic manifest program. These comments emphasized that the states are in varying stages of development in terms of deploying electronic business in government at the state level. The state commenters also focused on the start-up costs, training, the demands on state personnel, and the resources that would be required among the states to maintain the capability to interact with the e-Manifest system. In addition, several state agency commenters suggested that
C. Final Rule Decision
Because of the critical nature of this issue to the likelihood of success of an e-Manifest system, the issue of consistent electronic manifest implementation among the states was addressed by specific language included in the e-Manifest Act. Under section 2(g)(2) of the e-Manifest Act, any regulations promulgated by
Therefore, in accordance with the provisions of the e-Manifest Act, there will be no patchwork effect among the states insofar as their electing to either adopt or not adopt state regulations adopting the electronic manifest regulations and recognizing the validity of electronic manifests. Under the terms of the legislation, the electronic manifest regulations will be effective in all states and the system will be implemented federally by
As EPA promulgated federal regulations addressing the HSWA mandates for corrective action programs and the land disposal restrictions (LDRs) during the late 1980's and the early 1990's, these new requirements were implemented initially in all states by
This policy of consistency with respect to the implementation of the e-Manifest regulations applies with equal force to the electronic signatures implemented in accordance with this regulation.
EPA has concluded that the electronic signatures that are used in connection with electronic manifests executed through the national e-Manifest system require the same consistency in implementation as the other standards and procedures affecting the creation and use of electronic manifests. A national system would be unworkable if different electronic signature methods had to be applied depending on the requirements imposed by the states that might be generator states or destination states for different hazardous waste shipments.
Moreover, the section 2(g) provisions of the e-Manifest Act render moot the need to clarify how the manifest would work when waste is hauled between a state that has adopted the electronic manifest and a state that has not. While states that have not adopted the electronic manifest regulations will not be able to enforce electronic manifest regulatory violations under their state laws, the electronic manifest will be valid and effective in all states regardless of any one state's adoption and authorization status. As the manifest will be effective in all states on the same date established by
EPA has included new language in 40 CFR 271.3, 271.4, and 271.10 to codify the provisions of the e-Manifest Act that address the consistency implications and state authorization requirements for the electronic manifest. Section 271.3(b) has been amended by adding a new paragraph (b)(4), which implements section 2(g) of the e-Manifest Act, by stating that any requirement applicable to the content or use of electronic manifests, and imposed under the authority of the Hazardous Waste Electronic Manifest Act: (1) Shall take effect in each state having a fully authorized state program on the same date as such requirement takes effect in other states; (2) shall supersede any less stringent or inconsistent provision of a state program; and (3) shall be carried out by
Section 271.4(c) has been amended to state explicitly that the consistency that is required of authorized state hazardous waste manifest programs extends explicitly to the electronic manifest. States' authorized programs must allow the use of the electronic manifest as an option for tracking hazardous waste shipments, and their regulations must recognize the validity of electronic manifests as defined in 40 CFR 260.10 of this regulation.
With respect to 40 CFR 271.10, which addresses state program requirements for generators, several amendments were made to accommodate the electronic manifest and ensure consistency in the use and implementation of the electronic manifest.
EPA is not amending at this time the provisions of
In addition, 40 CFR 271.11 is amended to provide new language to address the consistency requirements for state program requirements applicable to transporters. Specifically, we are amending
In addition, we are not currently amending
VI. The Projected Economic Impacts of the Electronic Manifest
In attributing any monetary cost and benefits of the final rule, the Agency had to determine if today's action, which codifies the statutory requirements authorizing the use of electronic hazardous waste manifest as a means to track off-site shipments of hazardous waste, imposes any direct impacts to the government, including state governments or the regulated community. As such, the Agency determined that today's rule simply establishes the legal and policy framework for the national e-Manifest system and does not independently impose or realize any direct monetary costs or benefits. The e-Manifest option will only become available when
Nevertheless, we would note that in drafting a 2009 Alternatives Analysis conducted by
Using information from the ICR (OMB Control No. 2050-0039, EPA ICR No. 801.16),
FOOTNOTE 30 This is likely a conservative estimate, as it does not include the additional cost savings likely to result from the greater efficiencies with which existing data systems operated by industry users and states will be able to exchange data with the e-Manifest system, relative to manually keying data from paper forms. END FOOTNOTE
We would note that part of the reason for establishing an electronic tracking system for hazardous waste shipments is that such tracking can be conducted in a more cost-effective manner, and thus, we would expect reduced costs and paperwork processing burdens to the regulated community, as well as to the regulators in the long run, recognizing that there may be some upfront costs that these entities may bear. We also expect that there will be more timely access to manifest data and shipment information, and improved quality to the data that is shared among users, regulators, and their data management systems.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and 13563: Improving Regulation and Regulatory Review
This final rule, " Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests," primarily codifies new statutory provisions that authorize the use of electronic manifests for tracking hazardous wastes. Under Executive Order 12866 (58 FR 51735,
B. Paperwork Reduction Act
This action does not impose any new information collection burden. The regulatory changes to the manifest system announced in this Final Rule do not change the information collected by the hazardous waste manifest, nor the scope of the wastes that are now subject to manifesting. The adoption of the electronic manifest changes the manner in which manifest information will be collected and transmitted. However, the
This rule merely provides the legal and policy framework for the electronic tracking of off-site shipments of hazardous waste. The use of e-Manifests cannot occur until
C. Regulatory Flexibility Analysis
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business as defined by the
After considering the economic impacts of this final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule does not change existing requirements for manifesting hazardous waste shipments. It merely authorizes the use of electronic manifests at such time as the system to receive them is built and operational. Small generators of hazardous waste will either participate in the electronic manifest through the involvement of the transporters or facilities that service their wastes, or, they will continue to use paper manifests. Likewise, small transporters or small treatment, storage, or disposal facilities may elect to continue to use paper manifests, although there could be competitive pressure on those small transporters or facilities that continue to supply paper manifest to their customers.
D. Unfunded Mandates Reform Act
This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. Today's rule, however, does require RCRA authorized state programs to recognize the electronic documents that can be completed and submitted electronically under today's final rule as the authorized substitute for the current paper forms (i.e., EPA Form 8700-22 (Manifest) and EPA Form 8700-22A (Continuation Sheet)). Thus, authorized states that currently use information systems to track manifest data will need to modify their information systems in order to receive specific electronic manifest data from the national e-Manifest system.
E. Executive Order 13132: Federalism
This final rule does not have federalism implications. It will 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, as specified in Executive Order 13132. Thus, Executive Order 13132 does not apply to this rule.
F. Executive Order 13175: Consultation With Tribal Governments
This final rule does not have tribal implications, as specified in Executive Order 13175. It does not impose any new requirements on tribal officials nor does it impose substantial direct compliance costs on them. This rule does not create a mandate for tribal governments, nor does it impose any enforceable duties on these entities. Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From
EPA interprets EO 13045 (62 FR 19885,
H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use
This rule is not a "significant energy action" as defined in Executive Order 13211, "Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use" (66 FR 28355,
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 ("NTTAA"), Public Law 104-113, Section 12(d) (15 U.S.C. 272 note) directs
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
Executive Order (EO) 12898 (59 FR 7629 (
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment, and because it still requires that hazardous waste be subject to the manifest requirement, although it could be in electronic format or paper format.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C.
List of Subjects
40 CFR Part 260
Environmental protection, Exports, Hazardous materials transportation, Hazardous waste, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
40 CFR Part 262
Environmental protection, Electronic reporting requirements, Exports, Hazardous materials transportation, Hazardous waste, Imports, Labeling, Packaging and containers, Reporting and recordkeeping requirements.
40 CFR Part 263
Environmental protection, Electronic reporting requirements, Hazardous materials transportation, Hazardous waste.
40 CFR Part 264
Environmental protection, Electronic reporting requirements, Hazardous waste, Packaging and containers, Reporting and recordkeeping requirements, Security measures.
40 CFR Part 265
Environmental protection, Electronic reporting requirements, Hazardous waste, Packaging and containers, Reporting and recordkeeping requirements.
40 CFR Part 271
Environmental protection, Administrative practice and procedure, Confidential business information, Electronic reporting requirements, Hazardous materials transportation, Hazardous waste, Reporting and recordkeeping requirements.
Dated:
Administrator.
For the reasons stated in the preamble, title 40, Chapter I of the Code of Federal Regulations is amended as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
1. The authority citation for part 260 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921--27, 6930, 6934, 6935, 6937, 6938, 6939, and 6974.
Subpart A--General
2. Section 260.2 is revised to read as follows:
(a) Any information provided to
(b) Except as provided under paragraph (c) of this section, any person who submits information to
(c)(1) After
(2)
Subpart B--Definitions
3. Section 260.10 is amended by revising the definition of "manifest" and adding in alphabetical order the definitions of "electronic manifest," "electronic manifest system," and "user of the electronic manifest" to read as follows:
* * * * *
Electronic manifest (or e-Manifest) means the electronic format of the hazardous waste manifest that is obtained from
Electronic Manifest System (or e-Manifest System) means
* * * * *
Manifest means the shipping document EPA Form 8700-22 (including, if necessary, EPA Form 8700-22A), or the electronic manifest, originated and signed in accordance with the applicable requirements of parts 262 through 265 of this chapter.
* * * * *
User of the electronic manifest system means a hazardous waste generator, a hazardous waste transporter, an owner or operator of a hazardous waste treatment, storage, recycling, or disposal facility, or any other person that:
(1) Is required to use a manifest to comply with:
(i) Any federal or state requirement to track the shipment, transportation, and receipt of hazardous waste or other waste material that is shipped from the site of generation to an off-site designated facility for treatment, storage, recycling, or disposal; or
(ii) Any federal or state requirement to track the shipment, transportation, and receipt of rejected wastes or regulated container residues that are shipped from a designated facility to an alternative facility, or returned to the generator; and
(2) Elects to use the system to obtain, complete and transmit an electronic manifest format supplied by the
(3) Elects to use the paper manifest form and submits to the system for data processing purposes a paper copy of the manifest (or data from such a paper copy), in accordance with
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
4. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922--6925, 6937, and 6938.
5. In
* * * * *
(a) * * *
(3) Electronic manifest. In lieu of using the manifest form specified in paragraph (a)(1) of this section, a person required to prepare a manifest under paragraph (a)(1) of this section may prepare and use an electronic manifest, provided that the person:
(i) Complies with the requirements in
(ii) Complies with the requirements of 40 CFR 3.10 for the reporting of electronic documents to
* * * * *
6. Add SUBSEC 262.24 and 262.25 to subpart B to read as follows:
(a) Legal equivalence to paper manifests. Electronic manifests that are obtained, completed, and transmitted in accordance with
(1) Any requirement in these regulations to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 262.25.
(2) Any requirement in these regulations to give, provide, send, forward, or return to another person a copy of the manifest is satisfied when an electronic manifest is transmitted to the other person by submission to the system.
(3) Any requirement in these regulations for a generator to keep or retain a copy of each manifest is satisfied by retention of a signed electronic manifest in the generator's account on the national e-Manifest system, provided that such copies are readily available for viewing and production if requested by any
(4) No generator may be held liable for the inability to produce an electronic manifest for inspection under this section if the generator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the generator bears no responsibility.
(b) A generator may participate in the electronic manifest system either by accessing the electronic manifest system from its own electronic equipment, or by accessing the electronic manifest system from portable equipment brought to the generator's site by the transporter who accepts the hazardous waste shipment from the generator for off-site transportation.
(c) Restriction on use of electronic manifests. A generator may prepare an electronic manifest for the tracking of hazardous waste shipments involving any RCRA hazardous waste only if it is known at the time the manifest is originated that all waste handlers named on the manifest participate in the electronic manifest system.
(d) Requirement for one printed copy. To the extent the Hazardous Materials regulation on shipping papers for carriage by public highway requires shippers of hazardous materials to supply a paper document for compliance with 49 CFR 177.817, a generator originating an electronic manifest must also provide the initial transporter with one printed copy of the electronic manifest.
(e) Special procedures when electronic manifest is unavailable. If a generator has prepared an electronic manifest for a hazardous waste shipment, but the electronic manifest system becomes unavailable for any reason prior to the time that the initial transporter has signed electronically to acknowledge the receipt of the hazardous waste from the generator, then the generator must obtain and complete a paper manifest and if necessary, a continuation sheet (EPA Forms 8700-22 and 8700-22A) in accordance with the manifest instructions in the appendix to this part, and use these paper forms from this point forward in accordance with the requirements of
(f) Special procedures for electronic signature methods undergoing tests. If a generator has prepared an electronic manifest for a hazardous waste shipment, and signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the generator shall also sign with an ink signature the generator/offeror certification on the printed copy of the manifest provided under paragraph (d) of this section.
(g) Imposition of user fee. A generator who is a user of the electronic manifest may be assessed a user fee by
Electronic signature methods for the e-Manifest system shall:
(a) Be a legally valid and enforceable signature under applicable
(b) Be a method that is designed and implemented in a manner that
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
7. The authority citation for part 263 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
8. Section 263.20 is amended by revising paragraph (a) to read as follows:
(a)(1) Manifest requirement. A transporter may not accept hazardous waste from a generator unless the transporter is also provided with a manifest form (EPA Form 8700-22, and if necessary, EPA Form 8700-22A) signed in accordance with the requirement of
(2) Exports. In the case of exports other than those subject to Subpart H of 40 CFR part 262, a transporter may not accept such waste from a primary exporter or other person if he knows the shipment does not conform to the EPA Acknowledgment of Consent; and unless, in addition to a manifest signed by the generator in accordance with this section, the transporter shall also be provided with an EPA Acknowledgment of Consent which, except for shipments by rail, is attached to the manifest (or shipping paper for exports by water (bulk shipment)). For exports of hazardous waste subject to the requirements of subpart H of 40 CFR part 262, a transporter may not accept hazardous waste without a tracking document that includes all information required by 40 CFR 262.84.
(3) Compliance date for form revisions. The revised Manifest form and procedures in 40 CFR 260.10, 261.7, 263.20, and 263.21, had an effective date of
(4) Use of electronic manifest--legal equivalence to paper forms for participating transporters. Electronic manifests that are obtained, completed, and transmitted in accordance with
(i) Any requirement in these regulations to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 40 CFR 262.25.
(ii) Any requirement in these regulations to give, provide, send, forward, or return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person by submission to the system.
(iii) Any requirement in these regulations for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment, except that to the extent that the Hazardous Materials regulation on shipping papers for carriage by public highway requires transporters of hazardous materials to carry a paper document to comply with 49 CFR 177.817, a hazardous waste transporter must carry one printed copy of the electronic manifest on the transport vehicle.
(iv) Any requirement in these regulations for a transporter to keep or retain a copy of a manifest is satisfied by the retention of an electronic manifest in the transporter's account on the e-Manifest system, provided that such copies are readily available for viewing and production if requested by any
(v) No transporter may be held liable for the inability to produce an electronic manifest for inspection under this section if that transporter can demonstrate that the inability to produce the electronic manifest is exclusively due to a technical difficulty with the
(5) A transporter may participate in the electronic manifest system either by accessing the electronic manifest system from the transporter's own electronic equipment, or by accessing the electronic manifest system from the equipment provided by a participating generator, by another transporter, or by a designated facility.
(6) Special procedures when electronic manifest is not available. If after a manifest has been originated electronically and signed electronically by the initial transporter, and the electronic manifest system should become unavailable for any reason, then:
(i) The transporter in possession of the hazardous waste when the electronic manifest becomes unavailable shall reproduce sufficient copies of the printed manifest that is carried on the transport vehicle pursuant to paragraph (a)(4)(iii)(A) of this section, or obtain and complete another paper manifest for this purpose. The transporter shall reproduce sufficient copies to provide the transporter and all subsequent waste handlers with a copy for their files, plus two additional copies that will be delivered to the designated facility with the hazardous waste.
(ii) On each printed copy, the transporter shall include a notation in the Special Handling and Additional Description space (Item 14) that the paper manifest is a replacement manifest for a manifest originated in the electronic manifest system, shall include (if not pre-printed on the replacement manifest) the manifest tracking number of the electronic manifest that is replaced by the paper manifest, and shall also include a brief explanation why the electronic manifest was not available for completing the tracking of the shipment electronically.
(iii) A transporter signing a replacement manifest to acknowledge receipt of the hazardous waste must ensure that each paper copy is individually signed and that a legible handwritten signature appears on each copy.
(iv) From the point at which the electronic manifest is no longer available for tracking the waste shipment, the paper replacement manifest copies shall be carried, signed, retained as records, and given to a subsequent transporter or to the designated facility, following the instructions, procedures, and requirements that apply to the use of all other paper manifests.
(7) Special procedures for electronic signature methods undergoing tests. If a transporter using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the transporter shall sign the electronic manifest electronically and also sign with an ink signature the transporter acknowledgement of receipt of materials on the printed copy of the manifest that is carried on the vehicle in accordance with paragraph (a)(4)(iii)(A) of this section. This printed copy bearing the generator's and transporter's ink signatures shall also be presented by the transporter to the designated facility to sign in ink to indicate the receipt of the waste materials or to indicate discrepancies. After the owner/operator of the designated facility has signed this printed manifest copy with its ink signature, the printed manifest copy shall be delivered to the designated facility with the waste materials.
(8) Imposition of user fee for electronic manifest use. A transporter who is a user of the electronic manifest may be assessed a user fee by EPA for the origination or processing of each electronic manifest. EPA shall maintain and update from time-to-time the current schedule of electronic manifest user fees, which shall be determined based on current and projected system costs and level of use of the electronic manifest system. The current schedule of electronic manifest user fees shall be published as an appendix to part 262 of this Chapter.
* * * * *
9. Add SEC 263.25 to subpart B to read as follows:
SEC 263.25 Electronic manifest signatures.
(a) Electronic manifest signatures shall meet the criteria described in SEC 262.25 of this chapter.
(b) [Reserved]
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
10. The authority citation for part 264 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
Subpart E--Manifest System, Recordkeeping, and Reporting
11. Section 264.71 is amended by revising paragraph (a)(2), and by adding paragraphs (f), (g), (h), (i), (j), and (k) to read as follows:
264.71 Use of manifest system.
(a) * * *
(2) If the facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator, or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in SEC 264.72(a)) on each copy of the manifest;
(iii) Immediately give the transporter at least one copy of the manifest;
(iv) Within 30 days of delivery, send a copy (Page 3) of the manifest to the generator,
(v) Within 30 days of delivery, send the top copy (Page 1) of the Manifest to the e-Manifest system for purposes of data entry and processing. In lieu of mailing this paper copy to EPA, the owner or operator may transmit to the EPA system an image file of Page 1 of the manifest, or both a data string file and the image file corresponding to Page 1 of the manifest. Any data or image files transmitted to EPA under this paragraph must be submitted in data file and image file formats that are acceptable to EPA and that are supported by EPA's electronic reporting requirements and by the electronic manifest system.
(vi) Retain at the facility a copy of each manifest for at least three years from the date of delivery.
* * * * *
(f) Legal equivalence to paper manifests. Electronic manifests that are obtained, completed, and transmitted in accordance with SEC 262.20(a)(3) of this chapter, and used in accordance with this section in lieu of the paper manifest form are the legal equivalent of paper manifest forms bearing handwritten signatures, and satisfy for all purposes any requirement in these regulations to obtain, complete, sign, provide, use, or retain a manifest.
(1) Any requirement in these regulations for the owner or operator of a facility to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 40 CFR 262.25.
(2) Any requirement in these regulations to give, provide, send, forward, or to return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person.
(3) Any requirement in these regulations for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the waste shipment.
(4) Any requirement in these regulations for an owner or operator to keep or retain a copy of each manifest is satisfied by the retention of the facility's electronic manifest copies in its account on the e-Manifest system, provided that such copies are readily available for viewing and production if requested by any EPA or authorized state inspector.
(5) No owner or operator may be held liable for the inability to produce an electronic manifest for inspection under this section if the owner or operator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the electronic manifest system for which the owner or operator bears no responsibility.
(g) An owner or operator may participate in the electronic manifest system either by accessing the electronic manifest system from the owner's or operator's electronic equipment, or by accessing the electronic manifest system from portable equipment brought to the owner's or operator's site by the transporter who delivers the waste shipment to the facility.
(h) Special procedures applicable to replacement manifests. If a facility receives hazardous waste that is accompanied by a paper replacement manifest for a manifest that was originated electronically, the following procedures apply to the delivery of the hazardous waste by the final transporter:
(1) Upon delivery of the hazardous waste to the designated facility, the owner or operator must sign and date each copy of the paper replacement manifest by hand in Item 20 (Designated Facility Certification of Receipt) and note any discrepancies in Item 18 (Discrepancy Indication Space) of the paper replacement manifest,
(2) The owner or operator of the facility must give back to the final transporter one copy of the paper replacement manifest,
(3) Within 30 days of delivery of the waste to the designated facility, the owner or operator of the facility must send one signed and dated copy of the paper replacement manifest to the generator, and send an additional signed and dated copy of the paper replacement manifest to the electronic manifest system, and
(4) The owner or operator of the facility must retain at the facility one copy of the paper replacement manifest for at least three years from the date of delivery.
(i) Special procedures applicable to electronic signature methods undergoing tests. If an owner or operator using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the owner or operator shall also sign with an ink signature the facility's certification of receipt or discrepancies on the printed copy of the manifest provided by the transporter. Upon executing its ink signature on this printed copy, the owner or operator shall retain this original copy among its records for at least 3 years from the date of delivery of the waste.
(j) Imposition of user fee for electronic manifest use. An owner or operator who is a user of the electronic manifest format may be assessed a user fee by EPA for the origination or processing of each electronic manifest. An owner or operator may also be assessed a user fee by EPA for the collection and processing of paper manifest copies that owners or operators must submit to the electronic manifest system operator under SEC 264.71(a)(2)(v). EPA shall maintain and update from time-to-time the current schedule of electronic manifest system user fees, which shall be determined based on current and projected system costs and level of use of the electronic manifest system. The current schedule of electronic manifest user fees shall be published as an appendix to part 262 of this chapter.
(k) Electronic manifest signatures. Electronic manifest signatures shall meet the criteria described in SEC 262.25 of this chapter.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
12. The authority citation for part 265 continues to read as follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 6935, 6936, and 6937.
Subpart E--Manifest System, Recordkeeping, and Reporting
13. Section 265.71 is amended by revising paragraph (a)(2), and by adding paragraphs (f), (g), (h), (i), (j), and (k) to read as follows:
SEC 265.71 Use of manifest system.
* * * * *
(a) * * *
(2) If the facility receives a hazardous waste shipment accompanied by a manifest, the owner, operator, or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in SEC 264.72(a) of this chapter) on each copy of the manifest;
(iii) Immediately give the transporter at least one copy of the manifest;
(iv)Within 30 days of delivery, send a copy (Page 3) of the manifest to the generator,
(v) Within 30 days of delivery, send the top copy (Page 1) of the Manifest to the electronic manifest system for purposes of data entry and processing. In lieu of mailing this paper copy to the electronic manifest system operator, the owner or operator may transmit to the system operator an image file of Page 1 of the manifest, or both a data string file and the image file corresponding to Page 1 of the manifest. Any data or image files transmitted to EPA under this paragraph must be submitted in data file and image file formats that are acceptable to EPA and that are supported by EPA's electronic reporting requirements and by the electronic manifest system.
(vi) Retain at the facility a copy of each manifest for at least three years from the date of delivery.
* * * * *
(f) Legal equivalence to paper manifests. Electronic manifests that are obtained, completed, and transmitted in accordance with SEC 262.20(a)(3) of this chapter, and used in accordance with this section in lieu of the paper manifest form are the legal equivalent of paper manifest forms bearing handwritten signatures, and satisfy for all purposes any requirement in these regulations to obtain, complete, sign, provide, use, or retain a manifest.
(1) Any requirement in these regulations for the owner or operator of a facility to sign a manifest or manifest certification by hand, or to obtain a handwritten signature, is satisfied by signing with or obtaining a valid and enforceable electronic signature within the meaning of 40 CFR 262.25.
(2) Any requirement in these regulations to give, provide, send, forward, or to return to another person a copy of the manifest is satisfied when a copy of an electronic manifest is transmitted to the other person.
(3) Any requirement in these regulations for a manifest to accompany a hazardous waste shipment is satisfied when a copy of an electronic manifest is accessible during transportation and forwarded to the person or persons who are scheduled to receive delivery of the hazardous waste shipment.
(4) Any requirement in these regulations for an owner or operator to keep or retain a copy of each manifest is satisfied by the retention of the facility's electronic manifest copies in its account on the e-Manifest system, provided that such copies are readily available for viewing and production if requested by any EPA or authorized state inspector.
(5) No owner or operator may be held liable for the inability to produce an electronic manifest for inspection under this section if the owner or operator can demonstrate that the inability to produce the electronic manifest is due exclusively to a technical difficulty with the EPA system for which the owner or operator bears no responsibility.
(g) An owner or operator may participate in the electronic manifest system either by accessing the electronic manifest system from the owner's or operator's electronic equipment, or by accessing the electronic manifest system from portable equipment brought to the owner's or operator's site by the transporter who delivers the waste shipment to the facility.
(h) Special procedures applicable to replacement manifests. If a facility receives hazardous waste that is accompanied by a paper replacement manifest for a manifest that was originated electronically, the following procedures apply to the delivery of the hazardous waste by the final transporter:
(1) Upon delivery of the hazardous waste to the designated facility, the owner or operator must sign and date each copy of the paper replacement manifest by hand in Item 20 (Designated Facility Certification of Receipt) and note any discrepancies in Item 18 (Discrepancy Indication Space) of the replacement manifest,
(2) The owner or operator of the facility must give back to the final transporter one copy of the paper replacement manifest,
(3) Within 30 days of delivery of the hazardous waste to the designated facility, the owner or operator of the facility must send one signed and dated copy of the paper replacement manifest to the generator, and send an additional signed and dated copy of the paper replacement manifest to the EPA e-Manifest system, and
(4) The owner or operator of the facility must retain at the facility one copy of the paper replacement manifest for at least three years from the date of delivery.
(i) Special procedures applicable to electronic signature methods undergoing tests. If an owner or operator using an electronic manifest signs this manifest electronically using an electronic signature method which is undergoing pilot or demonstration tests aimed at demonstrating the practicality or legal dependability of the signature method, then the owner or operator shall also sign with an ink signature the facility's certification of receipt or discrepancies on the printed copy of the manifest provided by the transporter. Upon executing its ink signature on this printed copy, the owner or operator shall retain this original copy among its records for at least 3 years from the date of delivery of the waste.
(j) Imposition of user fee for electronic manifest use. An owner or operator who is a user of the electronic manifest format may be assessed a user fee by EPA for the origination or processing of each electronic manifest. An owner or operator may also be assessed a user fee by EPA for the collection and processing of paper manifest copies that owners or operators must submit to the electronic manifest system operator under SEC 265.71(a)(2)(v). EPA shall maintain and update from time-to-time the current schedule of electronic manifest system user fees, which shall be determined based on current and projected system costs and level of use of the electronic manifest system. The current schedule of electronic manifest user fees shall be published as an appendix to part 262 of this chapter.
(k) Electronic manifest signatures. (1) Electronic manifest signatures shall meet the criteria described in SEC 262.25 of this chapter.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS
14. The authority citation for part 271 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
Subpart A--Requirements for Final Authorization
15. Section 271.3 is amended by revising paragraph (b) introductory text, and adding paragraph (b)(4) to read as follows:
SEC 271.3 Availability of final authorization.
* * * * *
(b) States approved under this subpart are authorized to administer and enforce their hazardous waste program in lieu of the Federal program, except as provided below:
* * * * *
(4) Any requirement applicable to the content or use of electronic manifests, including electronic signature requirements, and imposed under the authority of the Hazardous Waste Electronic Manifest Establishment Act:
(i) Shall take effect in each State having a finally authorized State program on the same date as such requirement takes effect in other States;
(ii) Shall supersede any less stringent or inconsistent provision of a State program, and
(iii) Shall be carried out by the Administrator in an authorized state except where, pursuant to section 3006(b) of RCRA, the State has received final authorization to carry out the requirement in lieu of the Administrator.
* * * * *
16. Section 271.4 is amended by revising paragraph (c) to read as follows:
SEC 271.4 Consistency.
* * * * *
(c) If the state manifest system does not meet the requirements of this part, the state program shall be deemed inconsistent. The state manifest system must further allow the use and recognize the validity of electronic manifests as described in SEC 260.10 of this chapter.
17. Section 271.10 is amended by revising paragraphs (f)(1), (f)(3), and the introductory text to paragraph (h) to read as follows:
SEC 271.10 Requirements for generators of hazardous waste.
* * * * *
(f) * * *
(1) Use a manifest system that ensures that interstate and intrastate shipments of hazardous waste are designated for delivery and, in the case of intrastate shipments, are delivered to facilities that are authorized to operate under an approved state program or the federal program. The manifest system must require the use of the paper or electronic manifest formats as required by SEC 262.20(a) of this chapter. No other manifest form, electronic manifest format, shipping paper, or information other than that required by federal requirements, may be required by the state to travel with the shipment, or to be transmitted electronically, as a means to track the transportation and delivery of hazardous waste shipments. No other electronic signature other than that required by the federal electronic manifest requirements may be required by a state to be executed in connection with the signing of an electronic manifest.
* * * * *
(3) Ensure that all wastes offered for transportation are accompanied by a manifest form, or are tracked with an electronic manifest, except:
(i) Shipments subject to 40 CFR 262.20(e) or (f);
(ii) Shipments by rail or water, as specified in 40 CFR 262.23(c) and (d).
* * * * *
(h) The state must follow the federal manifest format for the paper manifest forms (EPA Forms 8700-22 and 8700- 22A) and the instructions in the appendix to part 262, and must follow the federal electronic manifest format and instructions as obtained from the Electronic Manifest System described in SEC 260.10 of this chapter.
* * * * *
18. Section 271.11 is amended by revising paragraph (c)(1) to read as follows:
SEC 271.11 Requirements for transporters of hazardous wastes.
* * * * *
(c)(1) The state must require the transporter to carry the manifest forms (EPA Forms 8700-22 and 8700-22A) during transport, or, where the electronic manifest is used and the
* * * * *
[FR Doc. 2014-01352 Filed 2-6-14;
BILLING CODE 6560-50-P
| Copyright: | (c) 2014 Federal Information & News Dispatch, Inc. |
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