Vol. 79 Friday, 

No. 26 February 7, 2014 

Part II 

Environmental Protection Agency 

40 CFR Parts 260, 262, 263 et al. 

Hazardous Waste Management System; Modification of the Hazardous 

Waste Manifest System; Electronic Manifests; Final Rule 

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7518 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 260, 262, 263, 264, 265, 

and 271 

[EPA–HQ–RCRA–2001–0032; FRL–9828–9] 

RIN 2050–AG20 

Hazardous Waste Management 

System; Modification of the Hazardous 

Waste Manifest System; Electronic 

Manifests 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA or the Agency) is 

establishing new requirements that will 

authorize the use of electronic manifests 

(or e-Manifests) as a means to track offsite shipments of hazardous waste from 

a generator’s site to the site of the 

receipt and disposition of the hazardous 

waste. This final rule also implements 

certain provisions of the Hazardous 

Waste Electronic Manifest 

Establishment Act, Public Law 112–195, 

which directs EPA to establish a 

national electronic manifest system (or 

e-Manifest system), and to impose 

reasonable user service fees as a means 

to fund the development and operation 

of the e-Manifest system. The 

requirements announced here clarify 

explicitly that electronic manifest 

documents obtained from the Agency’s 

national e-Manifest system and 

completed in accordance with today’s 

regulation, are the legal equivalent of 

the paper manifest forms (EPA Forms 

8700–22 and 8700–22A) that are 

currently authorized for use in tracking 

hazardous waste shipments. Upon 

completion of the e-Manifest system, the 

electronic manifest documents 

authorized by this final regulation will 

be available to manifest users as an 

alternative to the paper manifest forms, 

to comply with federal and state 

requirements respecting the use of the 

hazardous waste manifest. Users who 

elect to opt out of the electronic 

submittal to the e-Manifest system may 

continue to use the paper manifest to 

track their shipments during 

transportation, which then will be 

submitted by the designated facility for 

inclusion in the e-Manifest system. EPA 

recognizes that there will be a period of 

transition to electronic submittals and 

the Agency will, as we implement eManifest, assess what measures might 

be effective to expedite the transition 

from paper manifests to electronic 

manifests. This final regulation further 

clarifies those electronic signature 

methods that the Agency recommends 

for executing electronic manifests in the 

first generation of the national eManifest system. This regulation also 

specifies how issues of public access to 

manifest information will be addressed 

when manifest data are submitted and 

processed electronically. Finally, this 

regulation announces, consistent with 

the mandate of the Hazardous Waste 

Electronic Manifest Establishment Act, 

that the final electronic manifest 

requirements promulgated today will be 

implemented in all states on the same 

effective date for the national e-Manifest 

system. Authorized states must adopt 

program revisions equivalent to and 

consistent with today’s federal 

requirements, but EPA will implement 

these electronic manifest regulations 

unless and until the states are fully 

authorized to implement them in lieu of 

EPA. 

DATES: This final rule is effective as a 

final agency action on August 6, 2014. 

However, the implementation and 

compliance date for these regulations 

will be delayed until such time as the 

e-Manifest system is shown to be ready 

for operation and the schedule of fees 

for manifest related services has been 

announced. EPA will publish a further 

document subsequent to this rule’s 

effective date to announce the user fee 

schedule for manifest related activities. 

This document will also announce the 

date upon which compliance with this 

regulation will be required and upon 

which EPA will be ready to receive 

electronic manifests through the 

national e-Manifest system, in 

accordance with 40 CFR 3.2(a)(2). 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. RCRA–2001–0032. All documents 

in this docket are listed in the 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., confidential 

business information (CBI) or other 

information for which disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically at www.regulations.gov or 

in hard copy at the Resource 

Conservation and Recovery Act (RCRA) 

Docket, EPA/DC, EPA West, Room 3334, 

1301 Constitution Ave. NW., 

Washington, DC. The Public Reading 

Room is open from 8:30 to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the RCRA 

Docket is (202) 566–0270. Copies cost 

$0.15/page. 

FOR FURTHER INFORMATION CONTACT: For 

further information regarding specific 

aspects of this document, contact 

Richard LaShier, Office of Resource 

Conservation and Recovery, (703) 308– 

8796, lashier.rich@epa.gov, or Bryan 

Groce, Office of Resource Conservation 

and Recovery, (703) 308–8750, 

groce.bryan@epa.gov. Mail inquiries 

may be directed to the USEPA, Office of 

Resource Conservation and Recovery, 

(5304W), 1200 Pennsylvania Ave. NW., 

Washington, DC 20460. 

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 (nonwastewaters 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, EPA will assess 

what measures might be effective to 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7519 

expedite the transition from paper 

manifests to electronic manifests, and 

may take input on fee incentives (e.g., 

shifting a greater portion of the system 

development and operating cost 

recovery to paper manifests) or other 

means to meet this end. Thus, it is 

EPA’s goal to move to a fully electronic 

process and to maximize the use of 

electronic manifests, so that the full 

program benefits and efficiencies of 

electronic manifests can be realized as 

quickly as possible. If you have any 

questions regarding the applicability of 

this rule to a particular entity, consult 

the people listed under FOR FURTHER

INFORMATION CONTACT. 

B. How can I get copies of this document 

and other related information? 

1. Docket. EPA has established an 

official public docket for this action 

under Docket number RCRA–2001– 

0032. The official public docket consists 

of the documents specifically referenced 

in this action, any public comments 

received, and other information related 

to this action. Although a part of the 

official docket, the official public docket 

does not include CBI or other 

information for which disclosure is 

restricted by statute. The official public 

docket is the collection of materials that 

is available for public viewing at the 

EPA Docket Center (EPA/DC), EPA 

West, Room 1334, 1301 Constitution 

Ave. NW., Washington, DC. The EPA 

Docket Center Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744 

and the telephone number for the EPA 

Docket Center is (202) 566–0270. 

2. Electronic Access. You may access 

this Federal Register document 

electronically through the EPA Internet 

under the ‘‘Federal Register’’ listings at 

http://www.epa.gov/fedrgstr/. This 

Federal Register also may be accessed 

from EPA’s main manifest Web page at 

http://www.epa.gov/epaoswer/

hazwaste/gener/manifest/index.htm. An 

electronic version of the public docket 

is available through EPA’s electronic 

public docket and comment, EPA 

Dockets. You may use EPA Dockets at 

http://www.epa.gov/edocket/ to view 

public comments, access the index 

listing of the contents of the official 

public docket, and access those 

documents in the public docket that are 

available electronically. Although not 

all docket materials may be available 

electronically, you may still access any 

of the publicly available docket 

materials through the docket facility 

identified above. Once in the system, 

select ‘‘search,’’ then key in the 

appropriate docket identification 

number. 

II. Background 

A. Proposed Manifest Revisions and 

Electronic Manifest Standards 

On May 22, 2001, EPA published a 

notice of proposed rulemaking (NPRM) 

that proposed several major revisions to 

the hazardous waste manifest system 

(66 FR 28240). The May, 2001 proposed 

rule included two distinct types of 

manifest system revisions: (1) Revisions 

to the manifest form itself, including the 

proposed adoption of a standardized 

manifest form with more consistent 

procedures for using the manifest form 

to track waste shipments; and (2) 

proposed revisions aimed at adopting an 

electronic manifesting approach that 

would allow waste shipments to be 

tracked electronically, thereby 

mitigating the burdens and 

inefficiencies associated with the use of 

paper manifest forms. 

With respect to electronic 

manifesting, the May 2001 NPRM 

proposed a standards-based, 

decentralized approach under which 

EPA would establish and maintain the 

standards that would guide the 

development of electronic manifest 

systems by private sector entities that 

decided to participate in the system. 

EPA assumed that multiple electronic 

manifest systems adhering to EPA’s 

standards might be developed by large 

generators, transporters, waste 

management firms, or information 

technology (IT) vendors desiring to 

market electronic waste tracking 

services. EPA further assumed that its 

role with respect to the electronic 

manifest would be limited to 

maintaining the standards that the 

private developers’ systems would 

adhere to, and evaluating these systems 

to ensure their compliance with the 

Agency’s standards. EPA did not 

anticipate or discuss in the May 2001 

proposal that the Agency itself would 

develop a national electronic manifest 

information technology solution that 

would centralize and standardize the 

means for creating, transmitting, and 

collecting electronic manifests. Though 

in 2001 EPA did contemplate that the 

transition to fully electronic systems 

would take some time to implement, the 

Agency stated its desire to transform the 

manifest system quite dramatically from 

its current paper-based approach to one 

that supports paperless manifest 

completion and transmission. [66 FR 

28240 at 28267]. 

In announcing the May 2001 

proposed approach to the electronic 

manifest, EPA proposed standards in 3 

distinct areas: (1) Standard electronic 

data exchange formats for the manifest; 

(2) electronic signature methods that 

could be used to execute manifest 

signatures electronically; and (3) 

standard system security controls and 

work flow procedures to ensure the 

reliable and consistent processing of 

manifest data by electronic manifest 

systems, as well as to ensure the 

availability and integrity of manifest 

data submitted through the electronic 

systems. The primary objective of the 

May 2001 proposed rule was to propose 

the necessary changes to the manifest 

regulations so that systems adhering to 

these standards would produce and 

retain electronic manifests that would 

be recognized as legally valid—that is, 

as valid as the conventional paper 

manifests signed with ink signatures. 

The May 2001 proposed rule further 

proposed regulatory amendments 

describing the procedures for using 

electronic manifests, as well as 

regulatory changes necessary to 

eliminate impediments in the existing 

regulations to the use of electronic 

manifests. 

In response to the May 2001 

electronic manifesting proposal, EPA 

received some 64 sets of public 

comments from affected or interested 

members of the public. While there was 

strong and general support for the 

concept of the electronic manifest, 

commenters took issue with many 

aspects of the proposed rule standards 

and approach. Many of the commenters 

raised issues and concerns that 

challenged the premise that a 

decentralized approach was the most 

effective means to implement the 

electronic manifest. Several commenters 

criticized directly the decentralized 

approach, maintaining that the 

proposed approach would bring about 

the development of several inconsistent 

systems that would not be able to 

interoperate with each other. In 

particular, commenters suggested that 

inconsistent systems would be of little 

value to companies that engage in large 

numbers of inter-company waste 

transactions. These commenters 

questioned the cost-effectiveness of an 

approach that would lead to 

duplicative, but inconsistent 

information systems. These commenters 

suggested that the development of one 

national system that would process 

electronic manifests securely and 

consistently would be a more costeffective and efficient means for 

proceeding with the electronic manifest. 

Other commenters criticized the 

decentralized approach more for the 

rigor and prescriptiveness of the 

standards that EPA proposed as the 

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means to guide the development of 

private systems. Several of these 

commenters took particular exception to 

the prescriptiveness of the system 

security and operational controls that 

EPA included in the proposal in order 

to ensure a basic level of consistent and 

secure operations between systems. 

These commenters further pointed out 

that having such detailed standards 

codified in EPA’s regulations might 

frustrate the ability of electronic 

manifest systems to adapt to new 

technologies that would almost 

certainly be introduced over time. 

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 

EPA’s standards could be prohibitive for 

any one company to assume. According 

to these commenters, participation in 

the electronic manifest by private firms 

under the proposed approach might be 

very limited, thereby negating EPA’s 

assumption that significant numbers of 

manifests would actually be transmitted 

electronically. 

In summary, commenters on the May 

2001 proposed rule generally suggested 

that one national e-Manifest system 

would be preferable to the proposed 

approach, as it would provide a more 

consistent, secure and cost-effective 

solution that would be accessible to 

more users. Overall, the commenters 

also expressed the view that a national 

or centralized electronic manifest 

system would offer greater benefits to 

both manifest users and regulators, such 

as one-stop manifest reporting, more 

effective inspection and enforcement 

activities by RCRA regulators, the 

possibility of nearly real-time shipment 

tracking services, and the possible 

consolidation of duplicative federal and 

state systems now in place to collect 

and manage manifest data and data 

collected for the RCRA biennial 

reporting requirements. 

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, 

EPA decided to separate the form 

revisions content of the manifest 

rulemaking from the electronic manifest 

content. We announced final action on 

the manifest form revisions on March 4, 

2005 (70 FR 10776), while deferring 

final action on the electronic manifest 

until the completion of stakeholder 

outreach and analysis of the options 

suggested by the commenters and 

stakeholders. A new paper manifest 

form, with fully standardized data 

elements for tracking off-site shipments 

of hazardous waste, went into effect 

across the nation on September 5, 2006. 

B. May 2004 Stakeholder Meeting 

On April 1, 2004, EPA provided 

notice in the Federal Register of its 

plans to conduct a two-day public 

meeting with stakeholders on the future 

direction of the electronic manifest 

project (69 FR 17145). The meeting was 

held in Washington, DC on May 19–20, 

2004, and was attended by 

representatives of hazardous waste 

generators, hazardous waste 

transporters, and waste management 

firms, as well as EPA and state agency 

officials, interested trade organizations, 

and IT vendors. In conducting this 

meeting, EPA was interested in 

identifying alternatives to the 

decentralized, standards-based 

approach that we proposed in May 

2001. In particular, we were interested 

in gauging the level of interest in the 

centralized system approach that 

commenters suggested in response to 

the May 2001 proposed rule. In addition 

to discussing alternative approaches to 

the electronic manifest, we also engaged 

stakeholders in focused discussions 

over the two days on the technical, 

policy, governance, and funding issues 

that would need to be addressed were 

a centralized system to be developed. 

We gleaned several key messages from 

the May 2004 public meeting. First, we 

learned that there was generally a strong 

consensus among the affected interests 

in favor of a centralized, national eManifest system that would consistently 

and securely generate and process 

electronic manifests. We heard points 

discussed in favor of both a privatelyhosted and an EPA-hosted solution, and 

even some hybrid approaches, but there 

was no question that a national system 

was preferred strongly over the 

decentralized approach that EPA 

proposed in May 2001. Second, 

stakeholders generally agreed that the 

electronic manifest should be an 

optional means to track waste 

shipments and receipts for the regulated 

RCRA hazardous waste handlers, rather 

than a technology requirement that 

would be mandated for the user 

community to utilize. Third, there was 

agreement among stakeholders that the 

electronic manifest should be 

implemented as a scalable web-based 

application that could expand perhaps 

to include additional services, but that 

the initial implementation should be 

focused on the core waste tracking 

functions of the hazardous waste 

manifest. 

However, one of the most significant 

messages from the May 2004 meeting 

centered on the acknowledgement of the 

manifest user community that the 

development and operation of the eManifest system should be funded 

through service fees. Statements offered 

by manifest users affirmed that the 

current paper manifest system gives rise 

to substantial paperwork burdens, 

particularly for the heaviest users. The 

users suggested that they would be 

willing to pay reasonable service fees as 

the means to fund the e-Manifest 

system, if they could also be assured 

that the collected fees would be used 

only for the payment of e-Manifest 

system costs, and not diverted to other 

program accounts. These users also 

stated that they expected that any 

service fee arrangements, including the 

collection of fees and the reporting of 

expenditures, would be handled in a 

very transparent manner so that it may 

be demonstrated to the manifest user 

community that they are receiving value 

for the fees they contribute to fund the 

system. The full proceedings of the May 

2004 public meeting have been posted 

on the EPA Web site at http://

www.epa.gov/epaoswer/hazwaste/

gener/manifest/e-mat.htm. The 

proceedings and comments submitted to 

EPA in response to this meeting are also 

included in the docket for this action. 

C. April 18, 2006 Notice and Request for 

Comment 

EPA found the comments and other 

input from the May 2004 public meeting 

to be persuasive. As a result, EPA 

tentatively decided in November 2004 

to pursue the establishment of a 

national e-Manifest system, if a means 

could be found to establish such a 

system on a self-sustaining or feefunded basis. This represented a change 

in direction from the decentralized 

approach that we proposed in May 

2001. While a number of commenters 

suggested a centralized approach in the 

comments they submitted to EPA in 

response to the May 2001 proposed rule, 

EPA had not specifically identified in 

the earlier proposed rule the centralized 

approach as an option that was under 

consideration by the Agency. Therefore, 

EPA published a notice of data 

availability (NODA) and request for 

comment in the Federal Register on 

April 18, 2006 (74 FR 19842), to signal 

to the public on the rulemaking record 

that EPA’s preferred option was now the 

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establishment of a national e-Manifest 

system to be hosted by EPA and funded 

by service fees that would be paid by 

those waste handlers who opt to use 

electronic manifests. The April 2006 

notice identified and explained the 

information that had been placed in the 

docket on this issue as a result of the 

May 2004 public meeting, and it offered 

the public an opportunity to comment 

on the record on the fundamental issue 

of whether a centralized e-Manifest 

system is the approach we should adopt 

in this final rule. The April 18, 2006 

notice further explained that EPA’s 

ability to proceed with the development 

of the national e-Manifest system (and a 

final regulation) was contingent upon 

new legislation being enacted in the 

interim that would establish EPA’s 

authority to enter into a contract with 

one or more information technology 

vendors that would be funded by 

appropriations and/or the electronic 

manifest service fees that EPA would be 

authorized to collect from users of the 

e-Manifest system for payment of eManifest system costs. At the time of the 

April 18, 2006 notice, EPA lacked 

explicit statutory authority to collect or 

retain user charges for the payment of 

the development and operation costs 

related to the e-Manifest system. In 

addition, EPA stated in that notice that 

it expected to deal with any claims for 

business confidentiality of manifest data 

under the existing 40 CFR Part 2 

procedures, under which any claim of 

business confidentiality of manifest data 

would need to be asserted by a person 

at the time of submission of an 

electronic manifest to EPA, or else the 

claim would be waived. 

Comments received in response to the 

April 2006 notice were highly 

supportive of the Agency’s newly 

announced preference for the 

development of a consistent national 

electronic manifest system. Commenters 

from the hazardous waste industry 

expressed strong support for the 

national e-Manifest approach. These 

commenters also expressed support for 

making electronic manifests available to 

users, at least initially, as an option 

rather than a mandatory requirement. 

Several waste industry commenters 

expressed their continued support for 

user fee funding of the e-Manifest 

system, while also expressing concerns 

that members of the waste industry may 

want to claim some manifest data to be 

confidential business information or 

CBI. 

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 

April 2006 notice, a few generators also 

expressed concerns that the overlapping 

requirements imposed by the 

Department of Transportation’s (DOT’s) 

hazardous materials shipping paper 

might make the use of electronic 

manifests less attractive, and that the 

new system could create unintended 

consequences, such as unanticipated 

burdens, data security issues, access 

issues for responders, and compliance 

issues when the system is down or data 

are lost. 

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 April 2006 

notice also generally supported the 

concept of a national electronic manifest 

system. State comments emphasized 

that it was important that the new 

system be able to address both Federal 

RCRA and non-RCRA or state-only 

wastes subject to the manifest 

requirements, and that the system be 

able to accommodate State facility and 

generator ID numbers, and state specific 

waste codes. Most significantly, the 

states emphasized that the system 

should be established to incorporate 

data from electronic manifests and from 

those paper manifests that continue in 

use. This would enable a unified 

national data system that included all 

manifest data, and avoid the need to 

maintain dual tracking systems for 

electronic and paper documents. The 

state commenters generally favored 

establishing the electronic manifest as 

an option for users to choose, although 

there was a minority view stating that 

use of electronic manifests should be 

mandatory at least for some facilities. 

States also favored the proposal to fund 

the e-Manifest system through the 

collection of user fees. A few state 

commenters indicated that it was not 

clear how EPA intended the new system 

to deal with several waste types, such as 

used oil, universal wastes, and wastes 

generated by conditionally exempt 

small quantity generators (CESQGs). 

Finally, the state comments on 

confidentiality of information adopted a 

position strongly at odds with industry’s 

position on CBI, as several states 

indicated that it is their policy to treat 

manifest data as public information and 

disclose it freely to the public. 

D. February 26, 2008 Notice and 

Request for Comment 

While the April 2006 notice elicited 

many comments supporting a national 

e-Manifest system, and supporting the 

optional use of electronic manifests, the 

record generated by the 2006 notice 

impressed EPA that we needed to give 

more attention to two issues: (1) The 

concern that an optional electronic 

manifest could give rise to dual 

electronic and paper systems, and (2) 

the conflicting positions expressed by 

industry and state commenters on 

addressing CBI claims for manifest data. 

Therefore, EPA issued another notice of 

data availability and request for 

comment specific to these issues in the 

February 26, 2008 Federal Register, 73 

FR 10204. 

In the February 2008 notice, EPA 

indicated its desire to establish a unified 

electronic data system that would 

collect data from all manifests. We 

requested public comments on our 

preferred approach that would require 

the designated facilities named on any 

paper manifest to submit the top copy 

of the manifest to the e-Manifest system 

operator within 30 days of receipt of the 

waste shipment. We discussed how this 

requirement could be satisfied by 

mailing the paper copy to the system 

operator, or, by transmitting an image 

file and perhaps a data file in lieu of 

mailing a paper copy. This would 

enable the system to enter data from all 

paper manifests into the national data 

repository that EPA would establish 

with e-Manifest. In connection with the 

submission of paper manifests or paper 

manifest data to the e-Manifest system, 

EPA further indicated that it would 

charge an appropriate service fee to 

cover the processing costs involved with 

collecting paper manifests and 

processing their data. 73 FR 10204 at 

10207. 

With respect to the CBI issue, EPA 

proposed in the February 2008 notice a 

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7522 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

1The Advisory Board is to be known as the 

Hazardous Waste Electronic Manifest System 

Advisory Board (also referred to as the System 

Advisory Board throughout this preamble). 

2The Advisory Board must be established within 

3 years of enactment of the e-Manifest Act, or by 

October 5, 2015. The establishment of the Advisory 

Board will be announced in a subsequent notice, 

and will not be discussed further in this initial 

regulation addressing the legal and policy 

framework for the e-Manifest. 

categorical determination that the 

information contained in individual 

manifests is essentially public 

information that cannot be the subject of 

a CBI claim. We requested public 

comment on this determination. Id. at 

10208. However, with respect to the 

aggregate data from the multiple 

manifests or reports that might be 

produced by querying the system, EPA 

acknowledged that there was a concern 

within the hazardous waste industry 

that industry members might try to use 

the national system to gain customer list 

information about their competitors. 

Therefore, EPA requested comments on 

whether the ability to obtain such 

aggregate data from the system or from 

EPA under the Freedom of Information 

Act (FOIA) might give rise to a CBI 

concern surrounding customer 

information, and how substantial the 

competitive harm would be to a 

company should disclosure occur. In 

addition to requesting that the industry 

provide comments that might 

substantiate their customer list 

concerns, we further requested 

comment on what mitigation measures 

(e.g., redaction) might be adopted in the 

final regulation should EPA determine 

that there was a valid concern that CBI 

would be disclosed to competitors. 73 

FR 10204 at 10210. 

The comments received in response to 

the February 2008 notice are 

summarized in a Response to Comments 

document included in the record for 

today’s final regulation. Significant 

comments addressing the proposal to 

require the collection of paper manifests 

are summarized in section III.K. of this 

preamble, while those significant 

comments addressing the CBI issues 

raised in the February 2008 notice are 

summarized in section III.I. of this 

preamble discussion. 

E. Electronic Manifest Legislation 

During September 2012, the 112th 

Congress enacted legislation entitled the 

Hazardous Waste Electronic Manifest 

Establishment Act, Public Law 112–195 

(hereafter, the e-Manifest Act). This 

legislation was signed into law by 

President Obama on October 5, 2012. 

This legislation was enacted into law 

expressly to direct EPA to establish a 

national e-Manifest system, as well as to 

facilitate the establishment of the eManifest system by providing EPA with 

explicit statutory authority needed to 

implement the electronic manifest in a 

self-sustaining manner. Among other 

things, the e-Manifest Act provides EPA 

with these new authorities: 

• Section 2(g)(1)(A) directs EPA to 

promulgate final regulations, after 

consultation with the Secretary of 

Transportation, authorizing the use of 

electronic manifests within 1 year of 

enactment, i.e., by October 5, 2013. 

• 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 October 5, 2015. 

• Section 2(c) of the e-Manifest Act 

authorizes EPA to impose and collect 

reasonable service fees necessary to pay 

the costs of implementing the eManifest system, including any costs 

incurred in collecting and processing 

data from any paper manifests 

submitted to the system, and to deposit 

these fees into a special revolving 

System Fund (or Fund) in the U.S. 

Treasury authorized under section 2(d) 

for the receipt of these funds. 

• Section 2(d)(2)(A) of the e-Manifest 

Act authorizes the Secretary of the 

Treasury, upon request by the 

Administrator of EPA, to transfer to EPA 

such amounts from the Fund that 

Congress has appropriated to the 

Agency to pay the costs incurred in 

developing, operating, maintaining, and 

upgrading the e-Manifest system. In 

accordance with section 2(d)(2)(B) of the 

e-Manifest Act, such funds will be 

available to EPA to spend on system 

related costs without fiscal year 

limitation. 

• Section 2(e) of the e-Manifest Act 

authorizes EPA, after consultation with 

the Secretary of Transportation, to enter 

into one or more performance-based IT 

contracts, with a term of up to 10 years, 

under which the contractor(s) would 

agree to provide electronic manifest 

related services. The e-Manifest Act 

provides that a primary measure of 

successful performance of the 

contract(s) shall be the development of 

a system that is performance-based, 

identifies objective outcomes, and 

contains performance standards that 

may be used to measure achievement 

and the goals to evaluate the success of 

the contractor(s), taking into 

consideration that a primary measure of 

successful performance shall be the 

development of a system that: 

Æ Meets the needs of the user 

community, including states that rely on 

manifest data, 

Æ Attracts sufficient user 

participation and service fee revenues to 

ensure the viability of the system, 

Æ Decreases the administrative 

burden on the user community, and 

Æ Provides waste receipt data for the 

RCRA Biennial Report. 

• Section 2(d)(3)(A) requires the 

submission to Congress every two years 

a report that includes an accounting of 

the fees collected and expenditures 

made over the reporting period, as 

reflected in the system’s financial 

statements. 

• Section 2(d)(3)(B) provides for an 

annual audit by the EPA Office of 

Inspector General on the fees collected 

and disbursed under the system, the 

reasonableness of the fee structure then 

in place, the level of use of the system 

by the users, and the success to date of 

the system in improving the efficiency 

of waste shipment tracking and in 

operating the system on a self-sustaining 

basis. 

• Section 2(i) of the e-Manifest Act 

authorizes appropriations for each of 

fiscal years 2013–2015 for system startup 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 eManifest 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 EPA to establish within three 

years of enactment of the law, an 

Advisory Board 1 consisting of an EPA 

Chair and eight others, at least two of 

whom shall have expertise in 

information technology, at least three of 

whom shall have experience in using or 

represent users of the manifest system, 

and at least three of whom shall be a 

State representative responsible for 

processing manifests. The e-Manifest 

Act requires that the Board meet 

annually to advise EPA on the 

effectiveness of the e-Manifest system 

and to provide recommendations to EPA 

relating to the system.2

• Section 2(g)(1)(B) of the e-Manifest 

Act authorizes EPA to promulgate 

regulations which may include such 

requirements as the Administrator 

determines to be necessary to facilitate 

the transition from the use of paper 

manifests to the use of electronic 

manifests, or to accommodate the 

processing of data from paper manifests 

to the electronic manifest system, 

including requirements that users of 

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3While 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 eManifest 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. 

4While 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. 

paper manifests submit to the system 

copies of the paper manifests for data 

processing purposes. 

• Section 2(g)(2) of the e-Manifest Act 

provides that EPA’s final regulations 

(i.e., this rule) carrying out the 

legislation shall take effect in each state 

on the effective date specified in EPA’s 

regulation, and that EPA shall carry out 

the electronic manifest final regulations 

unless and until the authorized state 

program is fully authorized to carry out 

the electronic manifest regulations in 

lieu of the EPA. 

• Section 2(g)(1)(B) authorizes EPA to 

collect for data processing purposes any 

paper manifests that continue in use 

after the implementation of electronic 

manifests, so that there will be one 

unified data system managing the data 

from both electronic and paper 

manifests. 

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 EPA to implement a national 

e-Manifest system approach during our 

prior national meetings and during our 

regulatory comment periods, EPA is 

announcing its final decision to 

establish a national e-Manifest system. 

EPA currently plans to host the eManifest system on the Agency’s Central 

Data Exchange (CDX)/National 

Environmental Information Exchange 

Network (Exchange Network) 

architecture or an equivalent 

architecture which EPA might establish 

for the e-Manifest System to support the 

creation, transmission, and reporting of 

electronic manifests. The system would 

also establish for the first time a 

national repository of manifest data, and 

a means to efficiently share manifest 

data with our RCRA authorized state 

partners and with the public. EPA will 

initiate soon a procurement action that 

will lead to the award of a contract(s) to 

one or more IT vendors to build and 

operate the e-Manifest system on behalf 

of EPA. Consistent with the funding 

mechanism established by Congress in 

sections 2(c), 2(d), and 2(i) of the eManifest Act, the e-Manifest system and 

the performance based contract 

authorized under § 2(e) of the e-Manifest 

Act will be funded by the service fees 

that will be charged to users of 

electronic and paper manifests, 

although the initial system start-up costs 

will be funded, at least in part, by 

appropriations that will later be offset 

by service fees. 

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 eManifest system and their payment of 

service fees. Therefore, we believe that 

through the collaborative efforts of EPA, 

the states, the user community, and the 

IT contractor(s), an e-Manifest system 

can be established and sustained over 

the years by a stable source of funding 

contributed by the users. Since the fees 

may also need to be adjusted over time 

to accommodate fluctuations in usage of 

the e-Manifest system, or upward or 

downward influences on system costs, 

the fee-funded approach should be 

sufficiently flexible to respond to 

change. Moreover, as required under 

section 2(d)(3) of the e-Manifest Act, 

EPA will prepare the financial 

statements, accounting reports, and 

annual audit reports that are prescribed 

for oversight purposes. This oversight 

will serve to assure the affected users 

that the collected service fees are being 

applied appropriately, that fees 

collected are sufficient (and not 

excessive) to cover the costs incurred, 

and that the program is providing value 

to the users and the regulatory agencies. 

While the establishment of the eManifest system announced today will 

satisfy one of several mandates of the eManifest Act, it will also confer 

substantial benefits. These benefits have 

always been the key drivers for the eManifest project, and they were the 

main impetus for the Congress to take 

interest in enacting the e-Manifest 

legislation. The e-Manifest system 

should significantly improve the 

delivery of waste tracking services to the 

public and the delivery of high quality 

manifest data to manifest users and to 

government officials, while 

substantially reducing the costs relative 

to the paper manifest system now in 

place. 

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 

EPA and to all interested states through 

the Exchange Network architecture; (7) 

greater transparency for the public about 

completed hazardous waste shipments 

to or from their communities; and (8) 

new data management possibilities that 

could ultimately simplify the RCRA 

biennial reporting requirements 3 and 

consolidate various federal and state 

reporting requirements for domestic and 

transboundary shipments. 

EPA anticipates that once fully 

operational, electronic reporting should 

yield significant savings over the 

current paper manifest and will ease the 

reporting burden. When EPA conducted 

a 2009 Alternatives Analysis evaluating 

several e-Manifest system approaches 

and their relative costs and benefits, we 

concluded then that a fully operational 

e-Manifest would produce annual 

burden hour savings of between 300,000 

and 700,000 burden hours, and cost 

savings exceeding $75 million per year.4

The Agency believes that there is a 

sound business and regulatory case for 

proceeding with the development of an 

e-Manifest system. 

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, EPA will explain how we 

intend to implement the national eManifest system, and we will explain in 

greater detail how we will amend the 

existing regulations so that they support 

the use of electronic manifests. To 

achieve EPA’s goal of a full electronic 

reporting system, EPA will develop an 

e-Manifest system that will support 

electronic manifests as the expected 

type of manifest submission but that 

will allow facilities to opt out of the 

electronic manifest and submit paper 

manifests during a period of transition. 

The Congressional authority provided to 

the Agency to develop the e-Manifest 

system allows EPA to include 

requirements that EPA determines to be 

necessary to facilitate the transition 

from the use of paper to electronic 

manifests or to accommodate the 

processing of data of paper manifests in 

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5Congress required that the e-Manifest system be 

established as a unified national system for the 

collection of electronic data from all manifests, 

whether initiated with the paper forms or with 

electronic formats. Therefore, the ‘‘user’’ definition 

was drafted broadly to include both users of the 

new electronic manifest formats as well as those 

who continue to use paper forms and submit a 

paper copy to the e-Manifest system per EPA 

regulations. In either case, the Act defines such 

persons as system ‘‘users’’ and confers authority on 

EPA to assess a fee for processing the data to the 

system. 

the electronic system [Sec. 2(g)(1)(B)]. 

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 opt out of the electronic 

manifest and continue to use the paper 

forms. We expect the use of electronic 

manifests will become the predominant 

means for tracking hazardous waste 

shipments. As we implement eManifest, EPA will assess what 

measures might be effective to expedite 

the transition from paper manifests to 

electronic manifests, and may take input 

on fee incentives (e.g., shifting a greater 

portion of the system development or 

operating cost recovery to paper 

manifest submissions) or other means to 

meet this end. Thus, it is EPA’s goal to 

move to a fully electronic system and to 

maximize the use of electronic 

manifests, so that the full benefits and 

efficiencies of electronic manifests can 

be realized as quickly as possible. 

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. EPA will later issue a 

regulation announcing the user fee 

schedule for e-Manifest system related 

activities and the date of availability of 

the e-Manifest system. When the 

Agency issues this subsequent eManifest fee schedule regulation, EPA 

will develop a Regulatory Impact 

Analysis discussing the expected costs, 

benefits, and other impacts of the eManifest system and its 

implementation. 

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 EPA announces in a 

subsequent Federal Register document 

that the e-Manifest system is ready to 

supply, receive and process electronic 

manifests. The scope of the electronic 

manifest was discussed in the eManifest Act, in which section 2(a) 

defines the term ‘‘user.’’ The statutory 

term ‘‘user’’ is defined to include all 

hazardous waste handlers (i.e. 

generators, transporters, or facility 

owner/operators) that are required to 

use a manifest under either Federal or 

state law to track hazardous waste or 

other material when shipped off-site for 

management. The statutory term ‘‘user’’ 

is also defined to clearly state that the 

use of electronic manifests is at the 

election of the user, and that if a user 

elects to use a paper manifest, the user 

may be required to submit a copy of 

such paper manifest to the system, in 

accordance with any regulations that 

EPA may promulgate to require such 

paper submissions.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 § 260.10 tracks the 

statutory definition with respect to 

tracking waste shipments from the site 

of generation to the off-site treatment, 

storage, disposal, or recycling facilities 

which have been designated to manage 

the waste upon receipt. In addition, the 

regulatory definition of ‘‘user of the 

electronic manifest’’ includes language 

to clarify that the electronic manifest, 

like the paper manifest form, may also 

be used to track shipments of rejected 

wastes or regulated container residues 

from the site of the rejecting facility (or 

facility shipping residues) to either an 

alternative facility or back to the 

original generation site in the event of 

a return shipment. 

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, 

EPA has also indicated in previous rules 

that authorized states may require the 

use of the hazardous waste manifest to 

track shipments of other waste materials 

that are not regulated federally as RCRA 

hazardous wastes, but are regulated 

more extensively by the authorized state 

programs and require a manifest under 

state law (e.g., ‘‘state only’’ hazardous 

wastes, as well as certain state-regulated 

industrial wastes). The definition of 

‘‘user of the electronic manifest’’ 

continues this practice, and makes it 

clear that persons who are subject to the 

state programs’ more extensive 

requirements for the use of the manifest 

form may also use the e-Manifest system 

to comply with both federal RCRA and 

these more extensive state requirements. 

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 EPA will currently 

allow users to opt out of the electronic 

system and continue to use the paper 

system as necessary. EPA requested 

comment in the April 2006 public 

notice whether use of electronic 

manifests should be optional or 

mandatory for the system users. 71 FR 

19842 at 19845 (April 18, 2006). We 

received numerous comments on this 

issue from members of the public, and 

our consideration of this issue is 

discussed in detail in section III.J. of 

this preamble. Because of the 

prominence of this issue, it was also 

considered by the Congress, which 

included language in the e-Manifest Act 

defining a ‘‘user of the electronic 

manifest’’ as one who ‘‘elects to use the 

system to complete and transmit an 

electronic manifest format.’’ EPA 

concludes in section III.J. of this 

preamble that the expected e-Manifest 

submission is electronic, but the Agency 

will allow users to opt out and continue 

to use paper manifests as necessary. We 

interpret the statutory definition of 

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‘‘user of the electronic manifest’’ to be 

consistent with the Agency’s 

determination on this question. 

Therefore, under this final rule, the use 

of an electronic manifest format is 

expected unless paper is requested and 

used by a waste handler that opts out of 

the electronic manifest. As we 

implement the e-Manifest system, EPA 

will closely monitor the levels of 

electronic manifest and paper manifest 

use, and adopt appropriate fee-based or 

other incentives to promote as complete 

a transition to electronic manifesting as 

is possible. It is EPA’s goal to maximize 

the use of electronic manifests by the 

user community, so that the full benefits 

and efficiencies of electronic manifests 

can be realized as quickly as possible. 

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 EPA may require. The eManifest system will collect manifest 

data from all manifests (paper or 

electronic) that are initiated after EPA 

announces the availability of the system 

for tracking hazardous waste shipments. 

Those persons (i.e., generators, 

transporters, or designated facilities) 

who submit electronic manifests to the 

system are clearly ‘‘users’’ within the 

meaning of the e-Manifest Act. In 

section III.K of this preamble, EPA 

explains that this regulation will require 

only designated facilities receiving 

paper manifests to submit one paper 

copy of each such manifest to the 

system for data processing. Thus, when 

this regulation is implemented, it will 

be the users of electronic manifests and 

the designated facilities receiving paper 

manifests that will be covered by this 

regulation as the ‘‘users’’ of the system 

when they submit their manifests to the 

system. It is these users who will also 

be subject to any requirement to pay 

appropriate fees imposed by the system 

to recover the system and data 

processing costs incurred in receiving 

and processing their manifest 

submissions. The fee structure will vary 

for those users who submit 

electronically and those who opt to 

submit a paper manifest. Congress 

authorized EPA to establish a fee 

structure to include the recovery of 

costs incurred in collecting and 

processing data from any electronic or 

paper manifest submitted to the system. 

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 eManifest 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 eManifest 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 EPA as the authorized substitute for 

the paper forms currently denoted as 

EPA Form 8700–22 (Manifest) and EPA 

Form 8700–22A (Continuation Sheet). 

This rule does not address the 

submission of any other RCRA-required 

forms or reports, including forms or 

reports that frequently accompany 

manifests, such as notices and 

certifications required from generators 

or treaters under the Land Disposal 

Restrictions (LDR) program (see 40 CFR 

268.7), EPA Acknowledgment of 

Consents to exports under 40 CFR 

262.53(f) and 262.54(h), Exception 

Reports under 40 CFR 262.42, and 

Discrepancy Reports under 40 CFR 

264.72(c). These and other reports or 

submissions must be submitted in 

accordance with the requirements and 

procedures specified in the specific 

regulations that describe when these 

reports are required and how one 

should supply these records or reports. 

Should the scope of the e-Manifest 

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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 (HMAccess) will be implemented as a paperless 

requirement. EPA is consulting with DOT on its 

progress with the possible transition to electronic 

shipping papers. At such time as DOT implements 

an electronic shipping paper, an entirely paperless 

shipping and tracking document will be possible for 

hazardous waste shipments. 

system be expanded later to encompass 

these or other RCRA reporting 

requirements, EPA will provide notice 

and opportunity for comment on such 

change(s) in scope and indicate when 

we will be prepared to accept the 

additional reports electronically. 

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, EPA cannot, 

at this time, eliminate all paper 

documents that are required in the 

course of transporting hazardous wastes. 

As we explained in the May 2001 

proposed rule (see 66 FR 28268), it will 

still be necessary to carry a printed copy 

of the electronic manifest on the 

transport vehicle during the 

transportation of hazardous wastes that 

are subject to the hazardous materials 

regulations, 49 CFR parts 171–180 

(HMR), since DOT requires that a hard 

copy of a shipping paper be carried on 

transport vehicles for shipments of 

hazardous materials, unless otherwise 

excepted.6

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 

U.S. Environmental Protection Agency 

specified in 40 CFR part 262.’’ 49 CFR 

171.8. DOT and EPA interpret this 

definition to mean that a material must 

be a federally listed or characteristic 

hazardous waste under EPA’s RCRA 

Subtitle C regulations, as these wastes 

become subject to the Hazardous Waste 

Manifest directly through part 262 and/ 

or the equivalent state law counterparts 

of authorized RCRA state programs. 

Therefore, the listed and characteristic 

hazardous wastes identified in EPA’s 

Subtitle C hazardous waste regulations 

are the ‘‘hazardous wastes’’ that are 

defined as hazardous materials under 49 

CFR 171.8. As the federally identified 

hazardous wastes are also hazardous 

materials under the HMRs, it is these 

federally identified or RCRA hazardous 

wastes that are subject to the 

requirement in the HMR to carry a hard 

copy of a shipping paper on the 

transport vehicle during transportation. 

For these federally identified hazardous 

wastes, EPA is clarifying that a print-out 

of the electronic manifest satisfies the 

HMR requirement to carry a shipping 

paper, provided the print-out is 

prepared in accordance with the 

shipping paper requirements of the 

HMRs. See 49 CFR part 172, Subpart C. 

For shipments that involve stateregulated 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. 

EPA will continue to consult with the 

Department of Transportation to 

coordinate the electronic manifest with 

any electronic shipping document that 

is developed to satisfy the HMRs. 

D. What are the major changes from the 

proposed rule’s provisions? 

The final rule differs from the May 

2001 proposed rule, by adopting a 

national, centralized e-Manifest system 

instead of the decentralized approach 

that we proposed. Because this decision 

departed from the decentralized 

approach proposed in May 2001, we 

published a separate notice in April 

2006 requesting comment on this 

change in direction for the electronic 

manifest program. As the comments on 

the April 2006 notice were supportive of 

this change, we are finalizing this rule 

so that it is consistent with the 

centralized system approach, as well as 

the Hazardous Waste Electronic 

Manifest Establishment Act enacted in 

October 2012 to implement such an 

approach. The change to the centralized 

electronic manifest approach 

necessitated a number of changes in the 

proposed rule provisions that we 

published in May, 2001. This section of 

the preamble summarizes the key 

changes to the regulatory provisions of 

the 2001 proposed rule. 

1. Implementation of Agency-wide 

Electronic Reporting Rule. Since the 

proposed rule of May 2001, the Agency 

adopted a comprehensive rule 

governing electronic reporting. The 

Cross-Media Electronic Reporting 

Regulation (CROMERR), found at 40 

CFR part 3, governs, among other things, 

electronic reporting to EPA. As the 

electronic manifests will be submitted 

directly to EPA via the Agency’s CDX or 

other system designated by the 

Administrator, the submission of 

electronic manifests will be governed by 

the provisions of 40 CFR 3.10. Section 

3.10(a) provides that a person may use 

an electronic document to satisfy a 

federal reporting requirement or 

otherwise substitute for a paper 

document or submission that is required 

or permitted under Title 40 of the Code 

of Federal Regulations only if: (1) The 

person transmits the electronic 

document to EPA’s CDX or to another 

electronic document receiving system 

designated for the receipt of such 

documents by EPA, complying with the 

system’s requirements for submission; 

and (2) the electronic document bears 

all valid electronic signatures that are 

required under 40 CFR 3.10(b). Section 

3.10(b) requires that an electronic 

document bear the valid electronic 

signature of a signatory if that signatory 

would be required under Title 40 to sign 

the paper document for which the 

electronic document substitutes. 40 CFR 

3.10. Thus, by developing the national 

e-Manifest system within the CROMERR 

legal and policy framework, the Agency 

achieves consistency with existing EPA 

electronic reporting regulations. The 

resulting simplification of the electronic 

manifest regulatory standards is further 

explained in the section that follows. 

2. Simplification of the electronic 

manifest regulatory standards. The 

greatest impact of this final rule on the 

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regulatory provisions for the electronic 

manifest is a simplification of the 

standards that will govern the eManifest system. The proposed rule of 

May 2001 assumed the possibility that 

a number of e-Manifest systems would 

be developed by private sector entities, 

such as waste management firms, waste 

brokers, or IT vendors desiring to 

market new hazardous waste tracking 

services. Thus, the proposed rule was 

developed to include fairly detailed 

system security, work flow, and 

interoperability standards that the 

various private systems would need to 

adhere to before they could operate. 

These detailed regulatory standards 

were intended as a means to ensure 

some level of consistency, security, and 

interoperability among the various 

private electronic manifest systems, in 

order that electronic manifests could be 

exchanged freely among the different 

private systems, and that there would be 

some assurance of consistent and 

reliable processing of the manifest data 

by these IT systems. That is, these 

standards were developed for the 

proposed rule approach so that there 

could be sufficient confidence in data 

integrity, security and enforceability of 

the electronic manifests that would 

result from a decentralized approach. 

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 EPA currently intends to 

host on its CDX portal or other system 

designated by the Administrator for 

electronic reporting of manifests. As 

long as manifest users obtain and 

execute their electronic manifests 

through use of the EPA e-Manifest 

system, apply their ‘‘valid electronic 

manifest signatures’’ as discussed in 

section III.G. of this preamble, and abide 

by the conditions of 40 CFR 262.20(a)(3) 

discussed in section III.H. of this 

preamble, they will be creating and 

using valid electronic manifests. 

Therefore, the detailed Electronic 

manifest systems and security controls 

that were included in § 262.26 of the 

proposed rule are not being codified as 

part of this final rule. 

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 

§ 262.26(c)(1) of the proposed rule. This 

proposed provision was intended to 

provide an assessment and certification 

of electronic manifest systems by an 

independent third party with expertise 

in information security, so that the 

various privately developed systems 

under the decentralized approach 

would be evaluated and assessed for 

compliance with the proposed rule’s 

system security and interoperability 

requirements. The national e-Manifest 

system that EPA will develop in 

response to this final rule will of course 

be evaluated and accredited for 

compliance with applicable internal or 

government-wide IT policies and 

standards on information security, and 

tested for consistent operation with 

system performance requirements and 

requirements of the CDX (or other 

system designated by the Administrator) 

prior to beginning its production 

operation. Since federal IT systems are 

generally subject to applicable federal 

security standards and accreditation 

requirements, it is not necessary to 

codify the proposed rule provisions that 

required independent assessment of the 

decentralized private sector systems. 

Additional information on the 

information security approach that will 

be followed in the final rule’s electronic 

manifest approach is discussed in 

section III.F. of this preamble. 

We are also simplifying greatly the 

provisions on use of the electronic 

manifest that were included in § 262.24 

of the proposed rule. First, the 

provisions of proposed § 262.24(b) on 

manifest preparation and signature by 

‘‘authorized preparers’’ are not being 

finalized in this final rule. The topic of 

manifest preparation and the related 

issue of when it is proper for a preparer 

of manifests to sign for the generator has 

been subsumed by the discussion of 

offeror responsibilities and offeror 

signatures in the March 4, 2005 final 

rule on Manifest Form Revisions. 

Because this area is now fully addressed 

in the general discussion of offeror 

responsibilities and offeror certifications 

that apply to all manifests, both paper 

and electronic, it is not necessary to 

codify in this final rule a distinct 

provision limited to electronic 

manifesting that would have addressed 

manifest preparation and preparer 

signatures. The offeror responsibilities 

and options for signing manifests are no 

different for paper manifests and 

electronic manifests. 

Second, the May 2001 proposed rule 

contained a significant number of 

detailed regulatory provisions in 

§ 262.24(c)–(g) to address the specific 

procedures for originating and using 

electronic manifests. These provisions 

for the most part duplicated the detailed 

provisions on use of the paper manifests 

in proposed § 262.23, with minor 

adjustments to reflect differences 

between the paper and electronic 

systems and work flow. In this final 

rule, we have departed from the explicit 

recitation of near-identical provisions 

for paper and electronic manifests. 

Instead, in this rule, we cross-reference 

the paper manifest requirements which 

apply to electronic manifests. This 

change in format results in the 

elimination of much of the redundant 

content between the provisions on use 

of the paper and electronic manifests. 

This change also serves to reduce the 

complexity of the final rule, as well as 

to emphasize again that the electronic 

manifests are considered to be the legal 

equivalent of the paper forms. 

E. What electronic formats are required 

for electronic manifests? 

In section 262.20(a)(3) of the May 

2001 proposed rule, EPA proposed an 

Electronic Data Interchange (EDI) format 

based on ASC X12 Transaction Sets 856 

(Ship Notice/Manifest) and 861 (Receipt 

and Advice). EPA also proposed an 

Internet form format that would be 

developed in the Extensible Mark-up 

Language (XML). At that time, XML was 

only coming into being as a data 

exchange language, but it was already 

understood as offering many potential 

advantages as a means to exchange over 

the Internet documents that contain 

structured data. Unlike EDI data 

exchange tools, XML is not bound by 

rigid semantics, and XML has much 

more flexibility designed into it to adapt 

to a variety of applications and 

computing environments. With XML, a 

document’s content may be ‘‘tagged’’ to 

indicate the role that content plays, and 

the relationships to other data and 

content. Given that XML seemed to be 

emerging as a powerful tool for data 

exchange, and that it seemed to offer a 

cost-effective means of exploiting the 

openness of the Internet as a 

distribution medium for business and 

government requirements, we proposed 

an XML option and included a 

suggested Document Type Definition 

(DTD) that we presented for comment. 

DTDs and ‘‘schemas’’ are the agreed 

tools in XML to define for various 

transactions, the agreed document 

structures, the agreed tag identifiers and 

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relationships, such as the agreed data 

elements and document contents, and 

the agreed exchange requirements. In 

addition, an XML schema, when 

combined with an XML stylesheet, can 

be displayed in a web browser, enabling 

these formats to be used for both data 

exchange and the design of web forms. 

Thus, an electronic manifest format 

based on XML could establish a 

standard method for both displaying 

and exchanging manifest data with XML 

enabled browsers and data base 

software. 

In the May 2001 proposal, EPA 

requested comment on both the EDI and 

XML approaches (see 66 FR 28240 at 

28277, May 22, 2001). We asked 

specifically for comments on the 

feasibility of including an XML format 

for the manifest in the final rule, and 

whether it made sense to promulgate 

both an EDI format and an XML 

approach. Id. at 28278. 

EPA received many comments in 

support of XML as the data exchange 

format of choice for defining a standard 

electronic manifest format for a webbased electronic manifest. These 

commenters pointed out that a webbased 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 EPA’s proposed manifest 

format based on EDI transaction sets and 

mapping conventions. In particular, 

comments submitted on behalf of the 

railroad interests pointed out that the 

rail industry currently uses EDI 

protocols for electronic bills of lading, 

waybills, and other documents used by 

the railroads in connection with the 

transport of hazardous materials, using 

EDI transaction sets and protocols 

developed by the ASC X12 

Transportation Data Coordinating 

Committee. In their comments, the 

railroad industry urged EPA to continue 

to permit the railroads to use their 

existing EDI approach, and they further 

suggested that requiring new protocols 

from the railroads might only 

discourage the railroads from 

transporting hazardous waste. However, 

the railroad industry submitted 

additional comments in response to the 

April 2006 notice in which we 

requested comment on a web-based 

centralized e-Manifest system. In their 

2006 comments, the railroad industry 

expressed strong support for the 

centralized approach using an XML 

schema for data exchange, as long as the 

Agency was willing to work with the 

rail industry to ensure the 

interoperation of the XML schemas with 

the railroad industry’s EDI based 

system. 

Finally, EPA received several 

comments offering particular advice on 

how EPA should implement an XML 

standard format for the electronic 

manifest. Among these comments, it 

was suggested that EPA should define 

the standard for XML usage with the 

manifest promptly, before the role 

defaults to the states or external parties. 

Further, another commenter urged EPA 

to include in the rule a more up-to-date 

XML schema specification rather than 

the DTD that EPA proposed in May 

2001, as the schema offered a much 

richer format. Another such commenter 

urged EPA to develop the XML schema 

for the electronic manifest with the 

involvement of interested stakeholders 

to ensure that the electronic manifest 

format is compliant with XML systems 

under development in other 

organizations. 

EPA agrees with the numerous 

comments that urged EPA to adopt a 

web form approach based on XML as 

the standard electronic format for the 

electronic manifest. EPA is persuaded 

that XML schemas and stylesheets, 

when combined with XML enabled 

browsers, data bases, and other 

applications are currently the method of 

choice for conducting data exchange 

using the Internet to transfer and 

manipulate data, such as manifest data 

among different applications in a 

distributed computer system 

environment. We also are impressed 

that there was much more support for 

the XML standard format as opposed to 

the proposed EDI format. We also 

acknowledge and appreciate the support 

expressed by the railroad industry for 

the national electronic manifest 

approach we discussed in the April 

2006 notice, and we will make every 

effort to work with the rail transporters 

on capabilities and support needed to 

enable the rail industry’s EDI-based 

electronic waybill system to exchange 

data with the e-Manifest system. We 

announce, therefore, that we are 

currently adopting an XML schema and 

style sheet as the electronic format for 

the electronic manifest, and we are 

abandoning the EDI format as a separate 

or alternative format for electronic 

manifest data transmissions. EPA has 

previously developed draft XML 

schemas and style sheets based on 

earlier iterations of the hazardous waste 

manifest form. EPA intends that the eManifest system development contractor 

will update the draft XML schemas and 

style sheets, and that these updates will 

provide the data exchange format 

supported by the e-Manifest system. 

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 eManifest system. It is EPA’s current 

intent to develop a first generation eManifest system that will support an 

XML schema and style sheet (or other 

functional equivalent) as the data 

exchange format for the electronic 

manifest. The development of the XML 

schema and style sheet (or functional 

equivalent) will be included in the 

performance requirements for the IT 

contractor selected to build and operate 

the first generation e-Manifest system. 

The vendor will be provided with 

previous draft schemas and style sheets 

developed for EPA in the past, as well 

as be tasked to revise the XML schema 

and style sheet to meet the XML 

specifications adopted by the World 

Wide Web Consortium (or other 

organization or format specified by 

EPA). In addition, the vendor will 

consult with other interested 

organizations, manifest stakeholders, 

and/or standards setting bodies who 

may have already undertaken the 

development of XML schemas for 

related types of transactions. The eManifest system IT vendor will also be 

tasked to maintain the XML schema and 

style sheet (or functional equivalent) for 

the electronic manifest over the period 

of operation of the system, as it may be 

necessary to implement changes to the 

format in response to changes to the 

XML specifications, stakeholder input, 

or other regulatory considerations. In 

any event, EPA is announcing that the 

first generation e-Manifest system will 

rely on an XML-based approach as the 

data exchange format for the electronic 

manifest, and the XML schema and style 

sheet (or functional equivalent) 

supplied by the national e-Manifest 

system will be the exclusive electronic 

format recognized by EPA for 

exchanging manifest data. Should data 

exchange languages and formats change 

over time, the exchange language and 

formats that are then supported under 

the next generation national e-Manifest 

system would then become the data 

exchange methods for exchanging 

electronic manifest data. 

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 

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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 May 2001 proposed rule, EPA 

proposed the adoption of a general 

inspection requirement for electronic 

manifest copies and electronic manifest 

systems, as well as ten specific types of 

computer system security controls. 

These security controls were proposed 

in order to ensure the authenticity and 

integrity of electronic manifest data, to 

avoid repudiation of manifests created 

on electronic systems, and to ensure the 

consistent and reliable processing of 

manifests by the various electronic 

systems that may have arisen under the 

proposed rule. These security controls 

were contained at proposed section 

262.26, entitled ‘‘Electronic manifest 

systems and security.’’ Proposed section 

262.26(b) specified that electronic 

manifest copies, as well as the 

hardware, software, controls, and 

documentation for these systems, must 

be readily available for and subject to 

inspection by any EPA or authorized 

state inspector. The proposed rule 

assumed that private entities would 

develop various electronic manifest 

systems adhering to EPA’s standards, so 

it was necessary to require inspector 

access to both the manifest copies and 

the electronic manifest systems so that 

EPA could inspect the manifests and the 

private systems for compliance. 

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, EPA believed it was necessary 

to specify such detailed controls, and to 

validate and certify through written 

assessments that they had been 

implemented successfully in order to 

provide some minimum level of 

consistency and security in the design 

and operation of decentralized 

electronic manifest systems. At the time 

the proposed rule was developed, there 

was much concern that the 

decentralized approach might foster the 

development of numerous proprietary 

systems that would be incapable of 

communicating with each other, and 

that this approach might result in 

inconsistent and insecure systems with 

questionable ability to produce reliable 

and enforceable data. Therefore, the 

proposed security and processing 

controls were intended to ameliorate 

this concern by addressing what we 

concluded was a necessary set of 

controls to define a minimally 

acceptable level of consistency, data 

integrity, and system security for the 

various private systems that might have 

been developed under the proposed 

rule. 

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 EPA 

should develop performance standards, 

not prescriptive rules, for electronic 

manifest systems, while another 

commenter observed that the 

decentralized approach itself placed 

EPA in a dilemma, since the Agency 

somehow needed to specify 

technologies and standards enough to 

ensure universality and compatibility, 

while also trying to leave the industry 

enough latitude to determine how best 

to comply. 

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 

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commenters argued that EPA should 

instead identify acceptable hardware or 

software, or, describe the criteria that 

EPA will use to evaluate systems. 

Since EPA has decided to adopt a 

centralized system approach for the eManifest 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 eManifest system developed to host the 

transmission of electronic manifests, 

and the system will be operated by EPA 

through its contractor(s), the system 

security requirements for the e-Manifest 

will instead be planned and addressed 

under the Agency’s security planning 

policies. EPA has concluded that it is far 

more sensible to develop the e-Manifest 

system security requirements and 

controls in this manner than to 

promulgate regulations that would 

codify the system security controls. 

G. What electronic signature methods 

are required? 

1. Background. Section 2(g)(C) of the 

e-Manifest Act provides that EPA’s 

electronic manifesting regulations ‘‘shall 

ensure that each electronic manifest 

provides, to the same extent as paper 

manifests under applicable Federal or 

State law, for—(i) the ability to track 

and maintain accountability of (I) the 

person that certifies that the information 

provided in the manifest is accurately 

described; and (II) the person that 

acknowledges receipt of the manifest.’’ 

This provision of the e-Manifest Act 

confirms the objective that EPA 

announced in the May 2001 proposed 

rule concerning the electronic signature 

method: that is, the designation of an 

electronic signature method that should 

be no less secure and trustworthy than 

the conventional handwritten signatures 

that now appear on paper manifests. See 

66 FR 28240 at 28283. 

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, EPA has 

relied upon manifest signatures to show 

the chain of custody of hazardous waste 

shipments in transportation, and to 

establish clear lines of accountability 

among the waste handlers while the 

waste shipment is in transportation. In 

the May 2001 proposed rule, we 

acknowledged that there was a wellestablished track record and a high level 

of experience and comfort with using 

handwritten signatures as evidence in 

legal proceedings, while there was not 

the same level of experience and 

comfort with electronic signature 

methods. 66 FR at 28283–28284. 

Nevertheless, the Agency concluded 

that, as we gained more experience and 

familiarity with electronic signatures, 

many of the concerns with their 

reliability would be resolved. Id. 

After the publication of the proposed 

rule in May 2001, EPA issued its final 

Cross-Media Electronic Reporting 

Regulation (CROMERR) on October 13, 

2005 (70 FR 59848). CROMERR 

establishes a suite of performance 

standards for systems that collect 

electronic documents in lieu of paper 

documents under Federal 

environmental programs or under 

Federally approved, authorized, or 

delegated environmental programs 

administered by state, local, or tribal 

governments. These performance 

standards are codified at 40 CFR part 3. 

EPA has decided that it will, as a matter 

of policy, develop its own electronic 

reporting systems to meet the same 

performance standards that apply to 

state, local, and tribal government 

programs under subpart C of 40 CFR 

part 3. As explained by EPA in the 

CROMERR preamble, the CROMERR 

rule is intended to improve the 

efficiency, speed, and quality of 

regulatory reporting, while at the same 

time, ensuring ‘‘the legal dependability 

of electronic documents submitted 

under environmental programs.’’ 70 FR 

59848 at 59850. Electronic signatures 

play a significant part in CROMERR’s 

discussion of the legal dependability of 

electronic documents. CROMERR 

includes, in 40 CFR 3.3, a definition of 

‘‘valid electronic signature’’ which 

requires electronic signatures to be 

created with a device (e.g., secret code 

or private encryption key) that the 

person signing the document is 

uniquely entitled to use (i.e., 

ownership) and that is not compromised 

at the time of use. This definition of 

‘‘valid electronic signature’’ further 

requires that the signatory be an 

individual who is authorized to sign the 

document by virtue of their position or 

relationship with the reporting entity on 

whose behalf the signature is executed. 

See also, 40 CFR 3.2000(b)(5). In this 

way, CROMERR ensures that 

individuals will be no less accountable 

for their electronic signatures than they 

are for their handwritten signatures on 

paper documents. 70 FR at 59850. 

Thus, the May 2001 proposed rule, 

CROMERR, and the e-Manifest Act are 

consistent in requiring that electronic 

manifests be no less legally dependable 

and defensible than the paper manifests 

they would replace. 

In the May 2001 proposed rule, we 

proposed two distinct electronic 

signature methods: (1) A digital 

signature, based on asymmetric (i.e., 

private key/public key) cryptography; 

and (2) a secure digitized signature, 

which involves a digitized signature 

pad, stylus, and software that operate in 

conjunction to capture one’s 

handwritten signature input. We also 

solicited comment on the use of 

Personal Identification Numbers (PINs) 

or passwords as an electronic signature 

method for electronic manifests, and 

solicited comments on how (and if) 

PINs or passwords could be 

implemented securely and efficiently as 

an electronic signature method for 

electronic manifests. See 66 FR 28240 at 

28290–91. 

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 May 22, 2001 proposed rule. See 

66 FR 28240 at 28284. 

As an alternative to the digital 

signature method, we also proposed in 

May 2001 a signature method we 

identified as ‘‘secure digitized 

signature.’’ A ‘‘digitized’’ signature is 

one that is captured electronically on a 

touch-sensitive signature pad as a pen 

or stylus travels over the pad. Under the 

proposed rule, electronic manifests 

would be signed in the field using a 

portable digitizing pad that would 

create a graphical record of the 

signature. This signature would be 

logically bound to the manifest record 

by an encryption process known as a 

hash function. Because the document 

binding and signature verification 

features would promote signature 

authenticity and data integrity, we 

referred to this proposed signature 

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7Section 2(f) of the e-Manifest Act provides that 

EPA must establish a 9-member Advisory Board 

consisting of members selected from EPA, the 

states, and the regulated industry user community, 

with the Board to meet annually to evaluate the 

effectiveness of, and to provide recommendations to 

EPA, relating to the system. 

method as a ‘‘secure digitized 

signature.’’ See 66 FR at 28289. 

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 May 2001 notice that a simple 

PIN or password approach based on one 

secret item of information might not 

provide sufficient authentication 

strength and security for the electronic 

manifest, we were also aware that PINs 

and passwords are still commonly used 

in many contexts for electronic 

authentication, and are popular with 

users because of their familiarity and 

relative ease of implementation. 

Therefore, we requested specific 

comments from the public on whether 

there was a practical, secure, and 

efficient means to implement a PINbased signature method for the 

electronic manifest. Id. at 28291. 

2. Comment Analysis. EPA received 

many comments addressing the 

electronic signature methods in the 

proposed rule. Several commenters from 

state agencies seemed concerned that 

the level of security and cost associated 

with the digital signature (encryptionbased) method was not warranted in the 

manifest context. The state-agency 

commenters expressed some modest 

support for the secure digitized 

signature method. However, several 

other state-agency comments urged 

strongly that EPA consider a PIN-based 

electronic signature system for the final 

rule, as the PIN signature would be 

easiest to implement, easiest to validate, 

easiest for signatories to use, and the 

most cost-effective of the three methods. 

A view repeated in several state agency 

comments was that the proposed 

signature methods placed far more 

emphasis on security and preventing 

fraud than the commenters believed was 

warranted with the hazardous waste 

manifest. The commenters argued that 

there is not the level of falsification and 

fraud being practiced with manifests to 

warrant the perceived costs and 

additional burdens of the proposed 

methods. Those stating this view further 

suggested that the proposed signature 

methods did not place sufficient 

emphasis on the convenience to users, 

suggesting that the proposed signature 

methods and their burdens would 

discourage the use of the electronic 

manifest system. 

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 PINbased 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 stateagency 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 EPA 

must clarify in the final rule that a 

consistent signature method will be 

implemented in all states for electronic 

manifests, since manifests are interstate 

transactions that require consistency in 

implementation across all the states. 

3. Final Rule Decision on Electronic 

Signature Criteria. 

i. Introduction. EPA is today 

promulgating a final rule that is 

technology-neutral, rather than 

codifying specific electronic signature 

methods. Therefore, for the final rule’s 

electronic signature selection criteria, 

§ 262.25 of the generator requirements 

states that electronic signature methods 

for the e-Manifest system shall: (1) Be a 

legally valid and enforceable signature 

under applicable EPA or other federal 

requirements pertaining to electronic 

signatures; and (2) be designed and 

implemented in a manner that is 

sufficiently cost-effective and practical 

for the users of the manifest. These 

signature selection criteria are explained 

in detail below, and there is 

corresponding language included as 

well in Part 263 (transporters) and in 

Parts 264 and 265 (for receiving 

facilities). 

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, EPA is 

announcing the electronic signature 

method criteria which EPA will follow 

as we develop and implement the initial 

technical design approach for the eManifest system, as well as any 

subsequent refinements adopted in the 

system’s change management process. 

EPA will consult with our manifest user 

groups during the initial design phase of 

the e-Manifest system, and we will 

continue to collaborate with the user 

groups and the System Advisory Board 7

after the system is operational as part of 

the regular oversight and the change 

management process for the e-Manifest 

system. A distinct advantage of 

finalizing this rule with a technologyneutral standard and decision criteria is 

that the e-Manifest system, through the 

participation of the user groups and the 

System Advisory Board, will be able to 

assist EPA in identifying new electronic 

signature methods as a part of the 

normal system design and changemanagement process. We can also 

obtain the critical input from the user 

groups and System Advisory Board 

members on the various electronic 

signature methods that might be 

submitted to these groups for their 

consideration. This type of input is 

difficult to obtain through a rulemaking 

process, but it is essential to the IT 

system development process. 

Second, EPA is also announcing in 

this preamble section its current 

recommendations on how the Agency 

plans to implement electronic 

signatures for the first-generation of the 

e-Manifest system. The Agency has 

concluded that these recommended 

methods should be acceptable for the 

initial system design phase, and that 

they should meet the electronic 

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8While 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. 

signature criteria that are codified in the 

regulation. These recommendations are 

non-binding, and the e-Manifest system 

developers may consider and select 

other legally valid and enforceable 

signature methods that are 

recommended during the design phase 

of the project. After the first generation 

system is in place, the System Advisory 

Board and user groups can also 

recommend the adoption of new 

technologies and methods as they are 

demonstrated to be sufficiently strong, 

effective and feasible alternatives to the 

first-generation methods ultimately 

selected during the design phase of the 

e-Manifest project. 

ii. Electronic Signature Selection 

Criteria. In this section of the preamble, 

the Agency explains the electronic 

signature method selection 

requirements that will guide EPA, in 

consultation with the IT contractor, user 

groups, and the System Advisory Board, 

on the initial design of and any future 

changes to the electronic signature 

methods for the e-Manifest system. In 

the selection of the electronic signature 

methods for e-Manifest, the Agency is 

requiring that the signature method(s) 

shall: (1) be legally valid and 

enforceable signatures under applicable 

EPA and other Federal requirements 

pertaining to electronic signatures; and 

(2) be designed and implemented in a 

manner that is sufficiently cost-effective 

and practical for the users of the 

manifest, so that the signature methods 

gain broad user acceptance and 

encourage user participation in the eManifest system. 

As of the development of this 

regulation, the requirement of a legally 

valid and enforceable electronic 

signature is governed by EPA’s 

regulatory requirements in CROMERR, 

which EPA has codified at 40 CFR part 

3. In particular, applicable requirements 

for electronic signatures are governed by 

the definition of ‘‘valid electronic 

signatures’’ under 40 CFR 3.3 and the 

related provisions on electronic 

reporting under Subparts B and D of 40 

CFR part 3. Hereafter, therefore, we will 

refer in this preamble to consistency 

with CROMERR or CROMERR 

compliant electronic signatures as the 

means by which EPA will implement 

valid and enforceable electronic 

signatures that will ensure the legal 

dependability and defensibility of 

electronic manifests. EPA understands, 

however, that the CROMERR regulation 

could be altered or replaced over time 

by new EPA regulations and/or new 

Federal requirements pertaining to 

electronic signatures. Therefore, we 

have codified in § 262.25(a) the broader 

language requiring a ‘‘legally valid and 

enforceable signature under applicable 

EPA and other Federal requirements 

pertaining to electronic signatures’’ so 

that the regulation will be broad enough 

to encompass any changes to EPA rules 

or Federal law that may augment or 

supersede EPA’s current CROMERR 

requirements. 

a. CROMERR consistency. As 

discussed above, EPA’s current 

regulatory policy on electronic reporting 

and electronic signatures is prescribed 

by CROMERR. The e-Manifest is an 

example of a system that will provide 

electronic documents directly to EPA. 

Therefore, the e-Manifest is subject to 

the requirements (performance 

standards) of 40 CFR part 3, Subpart B, 

addressing electronic reporting to EPA. 

The CROMERR requirements for State 

document receiving systems (40 CFR 

part 3, Subpart D) contain much more 

specific system requirements than 

Subpart B’s performance standards. 

Although EPA is not legally bound by 

the Subpart D standards, EPA intends to 

comply with the Subpart D standards as 

a matter of Agency policy. See 70 FR 

59848 at 59860. Among the Subpart D 

standards are the specific requirements 

for valid electronic signatures under 40 

CFR 3.2000(b)(5)(i) and the 

requirements for identity proofing at 40 

CFR 3.2000(b)(5)(vii). The electronic 

signatures for e-Manifest must be 

consistent with these CROMERR 

standards. 

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 EPA is evaluating 

potential electronic signature 

approaches. 

Since the initial implementation of 

the manifest system in 1980, EPA’s 

manifest regulations have emphasized 

the important role of the user 

community in monitoring their waste 

shipments as they are tracked with 

manifests, so that waste quantities and 

types that are shipped are reconciled 

with the wastes quantities and types 

reported as received by designated 

facilities, and to ensure that waste 

shipments in fact arrive at the 

designated facilities within the 

regulatory timeframes. Given this key 

role played by the user community in 

overseeing the manifest system, EPA 

believes it is important that the user 

community be able to readily access and 

utilize the e-Manifest system to prepare 

and transmit their electronic manifests. 

We believe that the preparation and 

transmittal of e-Manifests will greatly 

enhance the ability of users to track the 

status of their shipments, to identify and 

rectify problems with shipments more 

quickly, and to avoid many of the data 

entry errors and legibility problems that 

arise in the paper system. Since the user 

community inspects and closely 

monitors the manifests that it creates, 

the key to leveraging the enhanced 

tracking and oversight capabilities of the 

e-Manifest is to ensure that the eManifest is readily available to and 

broadly embraced by the user 

community. Therefore, it is essential 

that the CROMERR compliant electronic 

signature methods adopted for eManifest also be practical for the users 

to implement. 

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, EPA will consider the 

impact of available electronic signature 

methods on the level of use of the 

system, to ensure that the e-manifest 

system will be viable and will effectuate 

statutory objectives that the system be 

established and operated on a selfsustaining, user-fee funded basis. 

4. Final Rule Recommendation on 

First Generation System Signature 

Methods. Based on the comments 

received in developing this rule, and on 

our May 2007 economic analysis of the 

proposed rule signature options and 

variants, EPA believes that the first 

generation system should provide 

support for either or both the digitized 

handwritten signature method and/or 

the PIN/password signature method.8

The public comments on the proposed 

rule electronic signature content are 

summarized above in section G.2. of this 

preamble. EPA also conducted a 

detailed economic analysis of the 

proposed electronic signature 

technologies and identity proofing 

methods in May 2007, as we wanted to 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7533 

understand better how the hardware, 

software, and support services needed 

for each signature and identity proofing 

method would impact the 

implementation costs for the system and 

its users, and how these costs might 

affect the per-manifest user fee that 

would be imposed to recover the costs 

of administering the system. 

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, 

EPA is announcing that for the first 

generation e-Manifest system, the 

Agency will recommend the PIN/

password electronic signature method 

as described in today’s rule. We also 

expect to deploy the digitized 

handwritten signature method in the 

first generation system if the validating 

studies demonstrate its forensic 

reliability; however, we will allow the 

deployment of this method on an 

interim basis (with some paper/ink 

signature requirements still applicable) 

pending the results of the studies. 

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 May 2007 

analysis revealed that the projected cost 

of implementing the proposed digital 

signature method with a public key 

infrastructure or PKI would likely be 

three to four times the projected costs of 

implementing either the PIN/password 

method or digitized signature method. 

Because of the far greater costs 

associated with PKI, and the comments 

that criticized the complexity of this 

signature method, EPA has determined 

that it will not initially provide support 

for PKI in the implementation of the eManifest system. However, this should 

not be taken to mean that the Agency 

has ruled out the digital signature 

alternative entirely, as we recognize that 

technology changes and updated cost 

projections that may appear before the 

system build is complete could alter our 

conclusions regarding the costeffectiveness of this technology. 

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. EPA expects that 

vendors of these products who wish to 

qualify their digitized handwritten 

signature products for use with eManifest could obtain or participate in 

the necessary studies that demonstrate 

their products’ reliability in helping to 

verify authentic signatures or to identify 

non-authentic signatures. 

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 May 2001 proposed rule. We 

further note that this electronic 

signature method has been widely 

implemented by package delivery 

services and various retail or 

government establishments as a means 

to collect signatures for credit 

transactions, for drivers’ license and 

insurance policy applications, and to 

document the receipt of medical 

prescriptions or other goods. 

EPA is also persuaded by the findings 

of our May 2007 economic analysis of 

electronic signature methods. This 

analysis revealed that the handwritten 

digitized signature method was among 

the least expensive to implement of the 

electronic signature methods we 

analyzed, despite the fact that this 

method entails a more significant initial 

investment by users or sponsoring 

companies in the signature pads and 

software necessary to collect the 

signatures. We estimated the 5-year 

average annual cost of implementing 

this method to be about $0.5 million to 

$1.5 million, which can also be 

expressed as an incremental cost of 

between $0.13 and $0.39 per electronic 

manifest. Assuming there are digitized 

handwritten signature products that can 

be shown through peer reviewed studies 

to collect reliable forensic evidence for 

enforcement actions, then the Agency 

believes this signature method can be 

implemented consistently with 

CROMERR requirements. Further, since 

this method also appears to be costeffective and acceptable to the manifest 

user community, EPA tentatively 

concludes that the digitized 

handwritten signature method should 

be an acceptable method for the first 

generation e-Manifest system. 

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 

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7534 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

9 In 1994, Congress amended the Hazardous 

Materials Transportation Act (HMTA) to provide 

that an electronic image of a shipping paper may 

be retained by an offeror or carrier, in lieu of the 

paper record, as the legal record to be made 

available for inspection by enforcement agencies. 

See 49 U.S.C. 5110(e), added by Public Law 103– 

311, Title I, Sec. 115 (August 26, 1994). The 

hazardous waste manifest is a Hazardous Materials 

shipping paper, and EPA is required by statute to 

be consistent with the Hazmat law in developing 

our transportation requirements, such as the 

manifest regulations. In 1996, EPA/OSWER 

announced a policy allowing hazardous waste 

facilities under specified conditions to retain 

scanned and retrievable image files of paper 

manifests in lieu of retaining their paper copies. 

EPA believes that high quality digitized signature 

products can create electronic signatures with 

evidentiary strength that exceeds that of the ‘‘flat 

image’’ manifest signatures that are now accepted 

under the paper manifest system. 

10The 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. 

11Moreover, 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. 

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 at least 

some of these products may be able to 

record and process the handwritten 

signature images and attendant 

signature dynamics with sufficient 

detail and reliability so as to permit a 

trained federal document examiner or 

other expert handwriting analysts to 

reliably authenticate a signature. 

However, as we noted above, we cannot 

make a final determination on the 

quality and suitability of these products 

until we obtain the peer reviewed 

studies indicating the reliability of this 

signature technology in providing the 

forensic evidence necessary to 

authenticate a signature. 

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, EPA anticipates that the 

digitized handwritten signatures could 

be used and proven in litigated cases in 

much the same manner that 

conventional paper manifest signatures 

are used and proven in these cases. In 

particular, we anticipate that the use of 

high quality digitized signature 

products with the e-Manifest will allow 

the Agency to collect sufficient forensic 

evidence 9 surrounding these signatures 

to either demonstrate that the signature 

is authentic, or, rebut any effort by the 

signatory to repudiate their digitized 

handwritten signature. Thus, we will 

continue to pursue and evaluate the 

digitized handwritten signature method 

so that we can confirm or repudiate the 

belief that there generally may be the 

same level of legal dependability for 

electronic manifests signed with 

digitized handwritten signatures as 

there is now for paper manifests (or 

images of paper manifests) and their 

handwritten signatures.10

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 EPA anticipates that the 

validating peer reviewed studies will 

demonstrate that with the appropriate 

implementation and technology, a 

digitized handwritten signature can 

verify or authenticate the identity of an 

individual in the same way that 

handwritten signatures on paper are 

authenticated, that is, by their 

appearance and by the forensic evidence 

surrounding their execution. 

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, 

EPA will specify performance 

requirements in the procurement 

documents that will address the eManifest system acquisition. Based on 

our current understanding of the 

capabilities and features of digitized 

signature products, EPA is exploring 

and will seek to validate products that 

have these or similar characteristics: 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7535 

• 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 peerreviewed 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 

EPA or others are not able to complete 

the necessary studies prior to the 

implementation date of today’s rule, 

EPA may allow the deployment of this 

method on an interim basis (with some 

paper/ink signature requirements) 

pending the results of the studies. 

Under such an interim 

implementation, EPA would accept the 

deployment of digitized signature pads 

and/or digital pens that simultaneously 

capture an ink signature. We are aware 

of several existing products with this 

capability. One paper copy of the 

manifest would be executed for each 

shipment with the original ink 

signatures of all the hazardous waste 

handlers, while the digitized signatures 

would simultaneously be collected and 

associated with the electronic manifests 

that would be distributed and retained 

by the e-Manifest system. At the end of 

the waste shipment transaction, the 

designated facility would retain the one 

paper copy with the original ink 

signatures among its operating records 

for at least three years, just as 

designated facilities currently retain a 

final paper manifest copy among their 

records. The designated facility would 

retain this paper copy securely and 

make it available for inspection and 

enforcement purposes by state or federal 

inspectors. Thus, during the interim 

period of implementation, the one paper 

copy with ink signatures would remain 

the copy of record for all enforcement 

actions involving that manifest. In the 

event of an enforcement action where a 

manifest signature is at issue, the paper 

copy would be produced for 

enforcement officials, and the ink 

signatures on this stored copy would be 

authenticated by document examiners 

in the same manner that such ink 

signatures are currently authenticated in 

enforcement actions. The digitized 

signature images captured on the 

electronic manifest copies in the system 

could be relied upon by e-Manifest 

users for all other purposes. Since civil 

and criminal enforcement actions would 

continue to rely on enforcing the paper 

manifest copy with its handwritten ink 

signatures, the effect of this interim 

solution is to defer full CROMERR 

compliance with respect to e-Manifest 

until the program is ready to implement 

a fully paperless system that would rely 

on the authentication of the digitized 

signatures in enforcement actions. 

While this interim solution might 

appear to be inconsistent with the goal 

of a fully paperless manifest, EPA 

emphasizes that after the 

implementation of the e-Manifest 

system, DOT’s HMR will continue to 

require hazardous waste transporters to 

carry a hazardous materials shipping 

paper (i.e., the manifest) on transport 

vehicles. So, e-Manifest users would 

still be required for the foreseeable 

future to produce one paper copy of the 

manifest in order to comply with these 

existing DOT shipping paper 

requirements. Since there will need to 

be one paper copy of the manifest 

carried on the transport vehicle in any 

case for DOT’s purposes, the use of this 

one paper copy to simultaneously 

record enforceable ink signatures under 

this interim solution will not result in 

additional paperwork being supplied. 

Moreover, most of the paperwork 

reduction, greater efficiency, and data 

quality enhancement benefits of the 

electronic manifest will still be realized 

even with the execution and retention of 

this one paper manifest copy as an 

enforcement copy of record. 

We anticipate that this interim 

signature method could be used until 

such time as EPA is able to identify 

specific digitized signature products 

that have been tested and found through 

peer reviewed studies to meet the 

forensic reliability standard. During the 

interim period, however, certain 

digitized signature products could be 

deployed, and the peer reviewed studies 

could be set up to take advantage of the 

data developed using several such 

products under a test protocol that 

would enable us to identify the high 

quality digitized handwritten signatures 

that could stand alone as enforceable 

and legally valid electronic signatures 

without any paper copy back-up. 

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 EPA and DOT regulations to 

be carried on transport vehicles shall in 

such cases of electronic signature tests 

be signed in ink by the generator, 

transporter, and designated facility 

owner or operator. At the end of the 

shipment, the printed copy bearing all 

the original ink signatures shall be 

retained by the designated facility 

among its records, and made available 

to federal and state RCRA inspectors to 

support their compliance monitoring 

and enforcement activities. These 

special procedures are codified for 

generators at 40 CFR 262.24(f), for 

transporters at 40 CFR 263.20(a)(7), and 

for owners or operators of designated 

facilities at 40 CFR 264.72(i) and 

265.72(i). These procedures are 

sufficiently flexible to apply over the 

life cycle of the system to the use of any 

electronic signature method that would 

benefit from a pilot or demonstration 

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7536 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

12Section 3.2000(b)(5)(vii) describes three 

identity proofing methods that have been deemed 

acceptable for electronic reports that are submitted 

to EPA or state systems. These accepted methods 

under CROMERR include: (1) The vetting and 

verification by a disinterested individual of a 

person’s identifiers or attributes that are contained 

in that person’s identity credential (e.g., a driver’s 

license, passport, or financial account), with at least 

one such identity credential being a government 

issued credential; (2) a method of determining 

identity that is no less stringent than the vetting of 

an identity credential by a disinterested individual; 

and (3) the collection of either a CROMERR 

‘‘subscriber agreement’’ or a certification from a 

‘‘local registration authority’’ that such an 

agreement has been received and securely stored. 

40 CFR 3.2000(b)(5)(vii). 

test before a decision is made to fully 

implement the method as a legally valid 

and enforceable electronic signature. 

6. PIN or Password Electronic 

Signature. 

i. Introduction. In addition to the 

digitized signature method discussed 

above, EPA recommends PIN and 

password-based electronic signatures for 

the first generation e-Manifest system. 

As with the digitized signature method 

discussed above, the PIN or password 

signature must also activate a hash 

function or equivalent technology, so 

that the electronic signature will be 

bound to the document content, and any 

data alterations attempted after 

signature may be detected. 

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 

understands that mobile devices with 

digitizer pads may not be available or 

attractive to all manifest users. We 

believe that the PIN/password electronic 

signature method provides a reasonable 

alternative for these prospective 

manifest users. 

EPA received many public comments 

on the May 2001 proposed rule urging 

the Agency to implement a PIN/

password signature approach for the eManifest, as these users believed that 

PINs or passwords would be more costeffective for users than those methods 

that required the purchase and use of 

peripherals, such as digitizer pads and 

the software needed to operate them. 

PINs and passwords are commonly 

implemented as an authentication 

approach in many electronic systems, 

and they are fairly easy to implement 

and validate. The technical basis for 

executing and validating a PIN or 

password signature is well established, 

and there is no need for studies to 

establish their technical reliability. 

Moreover, the May 2007 economic 

analysis of electronic signature methods 

confirmed that PIN/password signatures 

were fairly inexpensive for the 

electronic manifest community, with 

average costs between $.50 to $.96 per 

manifest. However, as previously noted, 

our analysis concluded that PINs and 

passwords may not be as inexpensive a 

signature method as the digitized 

handwritten signature over the life cycle 

of the system, since PINs and passwords 

are frequently lost or forgotten, and help 

desk support or self-service password 

management software may be required 

to reset them. 

While PINs/passwords have these 

drawbacks, the Agency believes that 

PIN/password-based electronic 

signatures can be implemented for the eManifest 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 May 2007 economic analysis 

confirms that this signature method may 

pose acceptable costs, despite the help 

desk and other management costs 

associated with PINs and passwords. 

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 § 3.2000(b)(5)(vii) of 

CROMERR does not specify how this 

performance standard is to be met 12, the 

rule does require that, at a minimum, 

the identify-proofing process must 

involve access to a set of descriptions 

that apply uniquely to an individual in 

question and refer to attributes that are 

durable, documented, and objective. Id. 

Such descriptions must be capable of 

being shown to uniquely identify the 

individual without having to depend on 

one such as a signatory who may want 

to repudiate their identification. Id. 

Alternatively, a subscriber agreement 

within the meaning of 40 CFR 3.3 may 

be collected to satisfy CROMERR 

identity proofing requirements. 

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 EPA evaluated 

several technology-based second 

authenticating factors. Our economic 

analysis of electronic signature and 

authentication methods concluded that 

the use of some currently available 

hardware tokens or biometric devices 

could triple or quadruple the permanifest cost of signing electronic 

manifests with a PIN or password. We 

believe that the addition of these costs 

to the PIN/password signature 

implementation costs could discourage 

use of the system by the more costsensitive members of the prospective 

user population. Therefore, we have 

chosen, at the outset, to employ second 

authenticating factors for PINs or 

passwords that require no additional 

hardware. Again, this should not be 

taken to mean that the Agency has 

forever ruled out all such technologybased approaches to reducing the 

vulnerability of a PIN/password 

signature to compromise. Should other 

methods relying on biometrics, 

hardware tokens, or other technologies 

be identified that are inexpensive, 

effective, and acceptable to the user 

community, they certainly would merit 

consideration for the e-Manifest system. 

Likewise, other non-technology 

methods that rely on business process 

adjustments or management controls, 

and that are effective in reducing the 

vulnerability of the PIN/password 

signature to compromise, may also be 

suitable if they meet the requirements of 

today’s rule and CROMERR. 

a. Personal Question Challenge as 

Second Authenticating Factor. One 

approach that EPA currently allows 

under CROMERR as a second 

authenticating factor for PIN/password 

signatures is to present the signatory 

with a challenge question each time he 

or she enters their PIN or password to 

execute a signature. Under this 

approach, the PIN/password electronic 

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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. 

signature can be sufficiently 

strengthened if the signatory 

successfully answers a challenge 

question from a set of questions for 

which the signatory has provided prearranged answers. Since only the actual 

signatory would likely be able to 

successfully provide both the required 

PIN/password and the correct answer to 

a personal challenge question, this 

approach can provide significant added 

protection against signature fraud and 

repudiation. In administering the 

CROMERR regulation, EPA has 

approved several systems that 

implement the use of personal challenge 

questions as a second authentication 

factor for PIN/password signatures. 

EPA’s experience with these systems 

indicates that there should be at least 10 

candidate questions made available to a 

user at the time of registration, although 

we recommend a longer list of at least 

20 such questions to give the registrant 

a better chance of finding several 

questions that he or she can answer 

from memory. In any case, under this 

method in the past administration of 

CROMERR, EPA has required that 

registrants select and answer five of the 

candidate questions at the time of 

registration with the system. Thereafter, 

when the user enters his or her PIN/

password electronic signature, he or she 

will be presented with one of the five 

selected challenge questions, which the 

system will choose at random. The entry 

of the correct response to the challenge 

question satisfies the CROMERR 

requirement for a second factor to 

strengthen the PIN/password signature. 

The personal question challenge is 

recognized as a CROMERR compliant 

second authentication factor, and this 

method is therefore available for the eManifest system as a means to 

strengthen PIN/password electronic 

signatures. However, EPA has some 

concerns that this method of 

implementing a PIN or password 

signature may present difficulties for eManifest users, particularly for 

hazardous waste generators. There are 

about 139,000 RCRA hazardous waste 

generators (and many more stateregulated waste generators), many of 

whom may decide to use electronic 

manifests, and many of these generators 

are small entities that may ship 

hazardous waste infrequently, e.g., no 

more than two or three times per year. 

Since these generators will have 

infrequent contacts with e-Manifest, we 

are concerned that these generators will 

have difficulty recalling both their 

passwords and personal question 

responses from memory. Manifest 

signatures occur in the context of a live, 

commercial transaction, and the 

signature data will likely be entered on 

mobile devices brought to the 

generators’ sites. Since the use of 

electronic manifests will be the default, 

the possibility that many generators 

could have difficulty executing both 

their passwords and personal question 

responses successfully may cause these 

users delay and frustration that could 

result in their continued reliance on 

paper manifests. To mitigate this 

possibility, we are also recommending 

an alternative method to the personal 

question challenge that users may find 

more suited to the manifest business 

process. This alternative may be used to 

satisfy CROMERR’s requirement for a 

second authentication factor for PIN/

password signatures for electronic 

manifests. It relies on a certification by 

a signature witness to strengthen the 

PIN/password signature. This method is 

explained in the preamble section 

below. 

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, 

EPA will require a witness’s 

certification of the signature to reduce 

the vulnerability of the PIN or password 

to compromise. Signature witnessing 

will take place as follows. First, the 

waste handler signing the manifest will 

present their government-issued 

photographic identification (e.g., 

driver’s license, passport, or Stateissued photo ID) to the witness. The 

witness will be expected to examine the 

name and picture contained in the 

photo identification, and to verify that 

the claimed identity of the signer is 

consistent with the information 

contained in the driver’s license or other 

photo identification. To ensure that this 

identity check is performed, the system 

will prompt the witness to enter the last 

five digits of the identification number 

included on the presented credential 

(e.g., the last five digits of the signer’s 

driver’s license number) and the witness 

will certify that this check was done. 

Second, EPA will rely upon the live 

witnessing of the signer’s PIN or 

password signature act 13 as the distinct 

second authentication strengthening 

factor. The system will collect the 

evidence of both the signer’s signature 

act and the facts attested to in the 

witness’s certification, and the 

collection of this evidence is sufficient 

to satisfy CROMERR insofar as 

establishing that each electronic 

signature was valid at the time of 

signature. See 40 CFR 3.2000(b)(5)(i). A 

signature affixed to the e-Manifest in the 

presence of a witness with distinct 

interests to the signer is highly unlikely 

to be compromised, as the signer 

understands at the time of signature that 

the witness could testify against the 

signer should the signer later attempt to 

repudiate his or her signature. Because 

of the manner in which the signature 

witnessing process is conducted—with 

direct in-person contacts between the 

signatory and the witness at the time of 

signature, with reliance of the witness 

on a government issued identity 

credential of independent origin that 

includes a photo of the signatory, and 

with the certification statement of the 

witness that includes the durable and 

objective evidence (the driver’s license 

number fragment)—this signature 

witnessing process also satisfies 

CROMERR’s requirement for identity 

proofing under 40 CFR 

3.2000(b)(5)(vii)(B). In this regard, while 

the interests of the generator and 

transporter in the waste transaction may 

be adverse to or distinct from each other 

rather than a ‘‘disinterested’’ 

relationship, EPA believes that the 

vetting of the generator’s representative 

identity by the transporter’s 

representative with each signature act is 

no less stringent than the one-time 

identity proofing by a disinterested 

party contemplated by 40 CFR 

3.2000(b)(5)(vii)(A). 

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 

recommends this signature process for 

the first generation e-Manifests, because 

it does not depend on any 

authentication technology that is more 

sophisticated than a keypad device for 

entering the signer’s and witness’s PINs 

or passwords and the signer’s license 

number data. 

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7538 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

14Whether the witnessed signature approach 

might be used only in connection with generator 

signatures or used more extensively is a system 

design issue that EPA will determine after 

consultations with stakeholders and the IT 

contractor(s) developing the system. 

15As 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. 

16As 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. 

17This 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 

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 eManifest 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. 

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 esignature 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. 

H. Requirements for Obtaining and 

Using the Electronic Manifest 

Under the May 2001 proposed rule, 

EPA proposed to modify existing 

§ 262.20(a) so that it would present both 

a paper form option under proposed 

§ 262.20(a)(2) and an electronic manifest 

format option under a new provision 

that we proposed in § 262.20(a)(3). 

Under proposed § 262.20(a)(3), EPA 

proposed authorizing the use of all 

electronic manifests that were: (1) Used 

in accordance with the proposed 

electronic manifest use requirements in 

proposed § 262.24; (2) signed in 

accordance with the proposed electronic 

signature requirements in proposed 

§ 262.25; and (3) generated and 

maintained on electronic systems which 

met the proposed security requirements 

in proposed § 262.26. If all of these 

conditions were met, then proposed 

§ 262.26(a) further clarified that these 

electronic manifest copies would be 

considered the legal equivalent to paper 

manifest copies bearing handwritten 

signatures, for the purposes of satisfying 

any of the RCRA regulatory 

requirements pertaining to hazardous 

waste manifests. See 66 FR 28240 at 

28304. 

Based on the comments received in 

response to the May 2001 proposed rule 

as well as the comments submitted in 

response to the April 18, 2006 NODA, 

EPA is finalizing the provisions of 

§ 262.20(a) to reflect the changed 

approach to the electronic manifest that 

we have adopted since the May 2001 

proposed rule was announced. Thus, in 

this final rule, § 262.20(a)(1) imposes a 

requirement that all off-site shipments 

of hazardous waste 17 must be 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7539 

40 CFR 262.20(e); or the exemption for universal 

waste shipments in 40 CFR Part 273. 

18This 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. 

19This regulation does not address retention of 

electronic manifests beyond the 3-year record 

retention period required of paper manifests. EPA 

is aware that some manifest users now choose to 

retain manifests for longer periods or indefinitely 

for a variety of reasons. When the System Advisory 

Board is formed, EPA will discuss with 

stakeholders if the system should provide extended 

records retention or archiving (with an appropriate 

fee for that service) or if other extended storage 

options are available. 

accompanied by a manifest, which may 

be satisfied under § 262.20(a)(2) by 

preparing and using the current paper 

forms (EPA Forms 8700–22 and 22A) for 

the manifest and continuation sheet, or, 

by preparing and using the electronic 

manifest format described in 

§ 262.20(a)(3) of the final rule. Rather 

than specifying either an EDI format or 

an Internet Forms format such as we 

discussed in § 262.20(a)(3) of the 

proposed rule, the final rule requires 

simply that generators must obtain and 

complete in accordance with 

§ 262.20(a)(3) the requirements of the 

electronic manifest format supplied by 

EPA’s national e-Manifest system that 

the Agency will establish and host in 

accordance with the e-Manifest Act. As 

discussed previously in section III.E. of 

this preamble, EPA currently intends to 

develop and maintain a schema and 

stylesheet in XML (or functional 

equivalent) to support the presentation 

and exchange of manifest data on the 

web-based e-Manifest system. 

Under § 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 

§ 262.20(a)(3). Wherever the existing 

regulations require a manifest to be 

supplied, signed, used or carried with a 

hazardous waste shipment, the 

execution of an electronic manifest on 

the national e-Manifest system shall be 

deemed to comply with these 

requirements to obtain, sign, carry, or 

otherwise use the hazardous waste 

manifest. 

Because electronic manifests will be 

directly reported to EPA, the submission 

of electronic manifests on the national 

e-Manifest system are currently 

governed by the provisions of 40 CFR 

3.10, which addresses direct reporting 

of environmental information to EPA 

through EPA’s CDX portal or other 

system designated by the Administrator. 

Therefore, compliance with the 40 CFR 

3.10 requirements for direct electronic 

reporting to EPA is required under 

§ 262.20(a)(3) of this final rule as one of 

the conditions that must be met to 

obtain and execute a valid electronic 

manifest. 

The requirements for direct electronic 

reporting of compliance information to 

EPA were announced in the final 

CROMERR rule, 70 FR 59848 (October 

13, 2005). This rule provides a 

consistent legal and policy framework 

for electronic reporting to EPA under 

the Agency’s various environmental 

programs that are codified in Volume 40 

of the Code of Federal Regulations. For 

all electronic documents that are 

submitted directly to EPA, the 

requirements of CROMERR § 3.10 state 

that in order for electronic documents to 

be considered the legal equivalent of 

paper submissions, the electronic 

document must be transmitted to the 

EPA’s CDX or other system designated 

by the Administrator and bear all valid 

electronic signatures that are required. 

CROMERR also provides that, if the 

corresponding paper document is one 

that must bear a signature under 

existing regulations, then the electronic 

document must bear a ‘‘valid electronic 

signature.’’ 40 CFR 3.10. We discussed 

the ‘‘valid electronic signature’’ 

requirement of CROMERR in the context 

of our discussion of electronic signature 

selection criteria above in section III.G. 

of this preamble. 

By providing a consistent, national eManifest system that will be accessed 

through EPA’s CDX electronic reporting 

portal or other system designated by the 

Administrator, EPA is thereby providing 

a straightforward means for establishing 

electronic manifests that will be the 

legal equivalent of the current, handsigned paper manifest forms. By tying 

the e-Manifest to the CDX or other 

system designated by the Administrator, 

and by developing this final rule 

consistently with the CROMERR legal 

framework for electronic reporting to 

EPA, the requirements for the use of 

electronic manifests are more 

straightforward under this final rule 

than under the decentralized approach 

to the electronic manifest that we 

proposed in May 2001. Electronic 

manifests that are obtained, completed 

and transmitted in accordance with 

§ 262.20(a)(3) on the EPA’s e-Manifest 

system, and that are signed with valid 

electronic signatures as described in 40 

CFR 262.25, are deemed by this rule to 

be valid manifests for purposes of 

RCRA. The primary purpose of this final 

rule is to clarify that electronic 

manifests that are obtained, executed, 

and signed in this fashion are 

authorized for use as legally valid 

manifests for all RCRA purposes. While, 

as explained previously, one printed 

copy of the electronic manifest must be 

carried on the transport vehicle during 

the transportation of federally regulated 

hazardous wastes, the electronic format 

is considered a fully equivalent 

substitute for the use of the manifest 

paper forms (EPA Forms 8700–22 and 

8700–22A).18 The electronic formats so 

obtained and completed shall meet all 

requirements in RCRA for supplying, 

completing, signing, sending, 

retaining 19 or otherwise dealing with a 

hazardous waste manifest. In particular, 

electronic manifests supplied and 

executed on the e-Manifest system shall 

be just as admissible as the paper 

manifest forms in civil, criminal, or 

administrative proceedings where 

manifests may be offered as evidence. 

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 EPA’s 

national e-Manifest system, and that is 

the legal equivalent of EPA Forms 8700– 

22 (Manifest) and 8700–22A 

(Continuation Sheet). The term 

‘‘Electronic Manifest System’’ or ‘‘eManifest System,’’ on the other hand, 

refers to EPA’s national information 

technology system through which the 

electronic manifest may be obtained, 

completed, transmitted and distributed 

to users of the electronic manifest and 

to regulatory agencies. 

I. Public Access to Electronic Manifest 

Data 

1. Introduction. EPA proposed two 

distinct options in separate public 

notices (April 18, 2006, 71 FR 19842 

and February 26, 2008, 73 FR 10204) to 

solicit comments from the public on 

whether manifests submitted to the eManifest system should be eligible for 

treatment as CBI. In the April 18, 2006 

public notice and request for comment, 

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EPA included a general discussion of 

the Agency’s conceptual approach to the 

design and operation of the e-Manifest 

system. We stated that we would 

develop the system so that it would 

support, as far as possible, the provision 

of reliable manifest services. We also 

stated that we would adopt the 

necessary measures and controls that 

were necessary to comply with EPA and 

federal policies protecting information 

security, privacy, and CBI. 71 FR 19842 

at 19847. We also summarized the 

existing procedures for submitting and 

obtaining determinations of CBI claims 

under the 40 CFR part 2 regulations. As 

a part of this discussion, we suggested 

further that any CBI claims that might 

arise in connection with the e-Manifest 

system would need to be asserted at the 

time of the submission of the electronic 

manifest to the system, or the claim 

would be waived. Id. At 19847–19848. 

At the time we issued the April 2006 

public notice, we believed that it was 

appropriate to plan for the consideration 

of any CBI claims for manifest data 

within the context of the 40 CFR part 2 

procedures, as well as the more specific 

provision applicable to RCRA 

information at 40 CFR 260.2(b). The 

§ 260.2(b) regulation provides that CBI 

claims respecting information required 

under the Subtitle C hazardous waste 

regulations will be addressed in 

accordance with the Part 2 standards 

and procedures, and further requires 

that a RCRA CBI claim must be made at 

the time of submission of the 

information to EPA, or the claim will be 

waived. 

EPA received several public 

comments on the CBI related statements 

contained in the April 2006 NODA. A 

state-agency commenter presented the 

view that nothing in the e-Manifest 

system should be allowed to be 

withheld from public disclosure as CBI, 

since the manifest is on its face a 

document that is shared with and 

viewed by several entities in its normal 

use. On the other hand, a large waste 

disposal and treatment company and a 

trade association of hazardous waste 

treaters and disposers offered comments 

supporting the view that some manifest 

data might be claimed as CBI. These 

commenters were especially interested 

in protecting customer information from 

being mined from electronic manifests 

by competitors. The industry members 

commenting in April 2006 seemed to be 

most concerned that the availability of 

this information electronically would 

enable competitors to obtain more 

immediate and efficient access to their 

customer information. 

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 

Federal Register on February 26, 2008. 

EPA explained that it had evaluated the 

public access/CBI issue more closely as 

it prepared for the development of the 

e-Manifest system, and announced that 

it had determined to categorically 

exclude individual hazardous waste 

manifests from CBI coverage. The effect 

of the new policy is that EPA made a 

categorical determination that it would 

not accept any CBI claims that might be 

asserted in the future in connection 

with the processing, using, or retaining 

of individual paper or electronic 

manifests. 

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 EPA’s belief 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. 40 

CFR part 2, Subpart B, and 40 CFR 

260.2. We stated that as manifests are 

shared with several commercial entities 

while they are being processed and 

used, a business concerned with 

protecting its 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. 73 FR 10204 at 10208. 

Second, we explained that much of the 

information that might be claimed by 

industry commenters to be CBI is 

already available to the public from a 

number of government and other 

legitimate sources, because a large 

number of states now require the 

submission of generator and/or TSDF 

copies of manifests to state data 

systems, and the data from these 

manifests are often made publicly 

available through state Web sites or 

reported and disclosed freely in federal 

and state information systems. For these 

reasons, among others, we stated that 

manifest records and data contained in 

them should not be subject to CBI 

claims, as the information is to a 

significant extent available from other 

sources. 

The February 2008 NODA also 

acknowledged that the waste 

management industry was concerned 

that the aggregation of manifest records 

and data contained in them in one 

national system may enable competitors 

to obtain more immediate and efficient 

access to their customer information, 

and thus, potentially create competitive 

consequences not experienced under 

the current paper system. The public 

notice further stated that we had little 

information available at that time on 

whether states have generally withheld 

or disclosed aggregate data, as 

information provided previously by the 

states did not disclose any pattern of 

states withholding or releasing such 

data. Therefore, the public notice also 

requested comment on whether 

aggregate manifest data requests should 

similarly be categorically excluded from 

CBI coverage, or, whether aggregate data 

requests merited special handling (e.g., 

redacting information), because of the 

possible efficiency with which aggregate 

data might be mined for competitive 

purposes from the national system. In 

addition, we specifically requested 

comment from the waste management 

industry on how substantial the harm 

would be to companies’ competitive 

position if aggregate data were released 

in response to a FOIA request. 73 FR 

10204 at 10209. 

2. Comment Analysis. State and waste 

industry commenters generally agreed 

with EPA’s position that CBI protections 

would not apply to requests for 

individual manifests, since an 

individual manifest could not itself 

disclose a customer list. However, there 

was strong disagreement between the 

industry and state commenters on 

whether to apply CBI protection to 

aggregate manifests or data compilations 

developed by querying the system. 

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 EPA, and by examining 

shipment data reported through the 

biennial report by large quantity 

generators. 

Another commenter representing 

State governments (The Association of 

State and Territorial Solid Waste 

Management Officials or ASTSWMO) 

stated that, based on information that it 

has collected, most States do not honor 

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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 $7 

million to $9 million. 21 Greenberg v. FDA, 775 F.2d 1169. 

CBI claims for manifest information. 

The commenter stated that most states 

it contacted have indicated that they do 

not afford CBI protection to either 

individual manifests or aggregated data, 

and these states thus believe that neither 

individual nor aggregate manifest data 

should be subject to CBI protection 

under our federal policy. Another state 

agency commenter (MIDEQ) also stated 

its agreement with the policy that 

neither individual nor aggregate 

manifest data may be claimed as CBI. 

The commenter indicated that this state 

does not honor CBI claims for any 

manifest information. However, one 

state agency (Ohio EPA) indicated that 

manifest data probably would be subject 

to CBI protection in that state. The State 

indicated that, based on the fact that 

most of its facilities currently claim 

business confidentiality for their similar 

customer identification information 

submitted with these facilities’ 

hazardous waste annual reports, it is 

expected that they would likewise claim 

CBI protection for their manifest 

submissions to Ohio. 

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 (The 

Environmental Technology Council or 

ETC) explained that the ability to 

efficiently aggregate manifest data 

through the e-Manifest system would 

pose significantly different concerns 

relative to the more substantial effort 

required to assemble a customer list 

under the current paper-based system. 

The commenter emphasized that the 

creation of a useful customer list from 

the existing paper manifests is 

exceedingly expensive and time 

consuming, and that the information 

that could be obtained under the paper 

system would be incomplete and of 

significantly less value than the 

aggregated data that could possibly be 

obtained through querying a nationwide 

e-Manifest system. A competitor able to 

obtain this information at minimal 

expense could obtain an unfair 

competitive advantage.20 For this 

reason, these industry commenters 

supported the idea of EPA redacting 

customer information before disclosing 

aggregate manifest information pursuant 

to a FOIA request. 

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. 

Finally, a Federal sector generator (the 

Department of the Navy) raised another 

concern based on anti-terrorism and 

security considerations, that is, that the 

ability to data-mine the e-Manifest 

system might pose opportunities to 

obtain information on the types and 

locations of hazardous wastes. 

3. Legal Authority and States’ 

Experience With Handling Manifest 

Data. In this section of the preamble, 

EPA will first summarize the existing 

authorities and procedures that govern 

CBI under federal law. We will 

summarize as well how manifest 

records have been handled for more 

than 20 years by the states, which have 

had significant involvement with 

collecting manifest records and 

applying their records laws over the 

years to the collection of many millions 

of manifest records. 

i. Legal Authority. The Federal 

Freedom of Information Act, 5 U.S.C. 

552(a), section 3007(b) of RCRA, and 

EPA regulations implementing the 

Freedom of Information Act and RCRA 

section 3007(b) generally mandate the 

disclosure to the public of information 

and records in the possession of 

government agencies. However, there 

are nine categories of information that 

may be exempt from disclosure, and one 

such category of information 

(Exemption 4) is for ‘‘trade secrets and 

commercial or financial information 

obtained from a person and privileged 

or confidential.’’ 5 U.S.C. 552(b)(4). EPA 

has adopted regulations at 40 CFR part 

2, Subpart B, to address the handling of 

claims respecting the confidentiality of 

business information. 

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 EPA in a recorded form. 40 

CFR 2.201(c). Such business 

information may be claimed by an 

‘‘affected business’’ to be entitled to 

treatment as CBI if the business 

information is a ‘‘trade secret’’ or other 

type of proprietary information which 

produces business or competitive 

advantages for the business, such that 

the business has a legally protected right 

to limit the use of the information or its 

disclosure to others. Id. at § 2.201(e). 

Under 40 CFR 2.204 and 2.205, there 

are procedures specified for EPA to 

develop interim and final 

determinations to resolve CBI claims 

submitted by affected businesses. The 

interim and final confidentiality 

determinations are governed by the 

substantive criteria in 40 CFR 2.208. 

Pursuant to § 2.208, EPA must find that 

the business information that is the 

subject of a claim is entitled to CBI 

treatment if: 

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 EPA in addressing the 

public availability of manifests. Based 

on information developed from a survey 

of state programs conducted by 

ASTSWMO, and other available 

information, it appears that the 20 or 

more states with manifest collection and 

tracking programs generally treat 

manifests as publicly available records. 

Some states have broad public records 

laws that mandate the availability of all 

manifest records, while other states 

have public records laws with CBI 

provisions similar to the federal 

authorities discussed above. Of the nine 

states that responded to the ASTSWMO 

survey, only one state (Ohio) opined 

that waste facilities in that state might 

be expected to claim CBI for manifest 

submissions, as several TSDFs in the 

state had asserted CBI claims with 

respect to similar data submitted as a 

part of the state’s Hazardous Waste 

Annual Report. A second state stated 

that although it does not now collect 

manifests, if it were to obtain these 

records and there were CBI claims 

involved, it would refer these 

confidentiality claims to the state’s legal 

office for resolution of the claim. 

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22 In August 2004, an official with the Ohio EPA 

surveyed the states on their Site ID, manifest 

tracking, and Hazardous Waste Reporting 

requirements. As part of the 2004 survey, 44 States 

responded to the question ‘‘Do you allow CBI 

claims on the Hazardous Waste Report?’’ The 

responses to this question from the 44 respondents 

was evenly split between states that would allow 

and states that would not allow CBI claims for their 

Hazardous Waste Report data. 

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 April 2006 NODA or the 

February 2008 NODA. Although we 

received a number of comments from 

state regulatory agencies, the previously 

submitted state comments did not 

differentiate clearly between individual 

manifests and aggregate data when 

discussing state policies. Thus, we 

could not ascertain whether the states 

which stated that they generally 

released manifests upon request were 

also releasing aggregate manifest data 

upon request. The purpose of the 2008 

comment clarification was to flesh out 

better whether these states are: (1) 

Already releasing aggregate manifest 

data in response to public requests; or 

(2) imposing any CBI related limitations 

on the information they will disclose in 

response to such a request. We also 

asked these states to explain whether 

they allow CBI claims for information 

submitted for the states’ hazardous 

waste reports, because we are aware that 

a previous state survey had indicated 

that some states allow CBI claims for 

their Hazardous Waste Reports.22 Since 

similar information linking waste 

management firms and their generator 

customers could be made available from 

both the states’ Hazardous Waste 

Reporting systems and from their 

manifest data systems, one would 

expect consistent policies regarding CBI 

coverage for customer information. 

Based on the requested clarifications, 

two states (NJ and NY) may directly or 

indirectly make aggregate data available 

to the public upon request. The New 

Jersey Department of Environmental 

Protection (NJDEP) makes aggregated 

data available for a fee, unless the 

requestor downloads the data from their 

public internet Web site. The NJDEP 

does not impose any CBI related 

limitations on the information they 

disclose in response to public requests 

for aggregate data. The New York 

Department of Environmental 

Conservation (NYDEC) makes manifest 

data available in text format on their 

department Web site. If manifest 

information can be queried from their 

state database system, then it is 

provided for a fee to the requestor of the 

queried information. The Michigan 

Department of Environmental Equality 

(MIDEQ) does not conduct queries to 

generate aggregate lists for FOIA 

requestors. Manifest data, however, is 

available on a MIDEQ public internet 

Web site, but not in a manner to easily 

produce aggregate lists. The other two 

states (IL and OH) do not provide 

hazardous waste manifest record data to 

the public but they do provide 

hazardous waste report data. 

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 EPA, we have 

concluded that information contained in 

individual hazardous waste manifest 

records, including any individual 

electronic manifests that may be 

submitted and collected electronically 

through the e-Manifest system, is 

essentially public information and 

therefore is not eligible under federal 

law for treatment as CBI. The effect of 

this decision is that EPA is making a 

categorical determination that it will not 

accept any CBI claims that might be 

asserted in the future in connection 

with processing, using, or retaining 

individual paper or electronic 

manifests. This decision will apply 

prospectively from the effective date of 

this final rule—that is, 180 days after 

the date of publication in the Federal 

Register, because the Agency has not 

previously announced this position and 

thus it would be unfair or inappropriate 

for the Agency to release such 

information, particularly for those 

companies that have previously made 

such a claim. Thus, it will not impact 

any CBI claims or any determinations 

made in the past by EPA in resolving 

manifest-related CBI claims. Our 

rationale is explained in the following 

paragraphs. 

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 EPA that many manifest 

records and the information on them 

linking waste management firms and 

generators or transporters are already 

available from a number of states and 

other legitimate sources. We did not 

find any significant history or record of 

current state practices withholding 

individual manifests from disclosure on 

account of customer information, with 

the narrow exception of a California 

statute that applies only to certain stateregulated (not RCRA) wastes and the 

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23Hazardous waste transporters that are 

authorized by CA to use CA’s consolidated 

manifesting procedures must submit quarterly 

reports to the CA EPA Department of Toxic and 

Substances Control (DTSC). The consolidated 

manifesting procedures apply to non-RCRA/CA 

hazardous waste or to RCRA hazardous waste that 

is not subject to the federal manifest requirements. 

The CA Health and Safety Code § 25160(d) 

prohibits the disclosure of the association between 

any specific transporter and specific generator. The 

list of generators served by a transporter is deemed 

to be trade secret and confidential business 

information for purposes of Section 25173 and 

Section 66260.2 of Title 22 of the California Code 

of Regulations. CA freely discloses information 

from RCRA hazardous waste manifests. 

24 In January of 2007, the MI state representative 

on EPA’s E-Manifest Final Rule Work Group 

disseminated a survey on behalf of ASTSWMO, 

through the Hazardous Waste Program Operations 

Task Force, to interested states in order to request 

information about their state manifest requirements, 

including the requirements for public access/CBI to 

manifest records. Eight states responded on how 

they currently treat or might treat manifest data as 

CBI. Responses from the eight states are as follows: 

One state (NY) denies CBI treatment to manifest 

records; One state (OH) allows TSDFs to claim CBI 

on their annual waste report; Four states (ID, OR, 

SC, CT) do not give CBI treatment to manifest data 

reported on quarterly or annual reports; and Two 

states (FL, MI) indicate that they would not give 

manifest data CBI treatment. In addition, three 

states (MD, NJ, PA) that participated on the 

regulatory work group, but were not included in the 

ASTSWMO survey, indicated that their state would 

not treat any manifest data as CBI. 

disclosure of transporter/customer 

information.23

Since the states have had far more 

experience than EPA with the collection 

and disclosure of manifests, EPA is 

persuaded that the states’ policies in 

this area are entitled to some deference. 

Several state programs now deny CBI 

treatment to data contained in manifest 

records,24 while other states have 

indicated to EPA that they routinely 

disclose manifest records to the public. 

EPA has concluded that among the 

States that collect manifest copies, it has 

been the general practice among these 

states for more than 20 years to disclose 

manifest data without CBI limitations. 

Our information on state practices 

suggests that free disclosure has been 

the predominant practice for dealing 

with data from individual manifest 

records among these states, and there 

have not been significant objections 

raised by members of industry to those 

states’ disclosure practices. EPA is not 

persuaded that it should reverse this 

long-standing policy among those states 

by adopting a Federal policy that 

conflicts with the prevailing state laws 

and policies on this issue. 

Finally, we note that the comments 

submitted by members of the regulated 

industry in response to the February 

2008 notice generally conceded the 

point that individual manifests and the 

data included in them should not be the 

subject of CBI claims. These 

commenters agreed that individual 

hazardous waste manifests are basically 

treated as public information. 

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, EPA has 

determined that data from individual 

manifests cannot be claimed to be 

confidential under Federal information 

law. Therefore, we have codified in 40 

CFR section 260.2(c)(1) this categorical 

policy that the data included in 

individual hazardous waste manifests 

cannot be the subject of CBI claims. This 

policy will apply prospectively to 

electronic and paper manifests, and to 

domestic and transboundary shipment 

manifests. 

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 EPA 

through the system or under a FOIA 

request, we are not persuaded by the 

comments that EPA should treat 

aggregate manifest data obtained from 

the system as confidential business 

information. The e-Manifest system is 

being developed so that electronic 

manifests and data are available to the 

authorized states at the same time they 

are available to EPA. We now 

understand from state comments and 

from state responses to surveys and 

requests for clarification that among the 

states that collect and track manifests, 

the policy of many of these states is not 

to recognize any CBI claims when 

processing requests from the public for 

aggregate manifest or waste receipt data. 

We identified some 21 states from 

questions or surveys addressing state 

policies with respect to processing 

requests for data from both state 

manifest tracking systems and state 

waste receipt information managed in 

the states’ annual report data systems. 

Thus, a large amount of aggregate 

information, including information on 

facilities and their generator customers, 

would be available from many of these 

21 states without CBI restrictions. These 

states’ disclosure policies will still 

apply after states begin to acquire their 

manifest data from the e-Manifest 

system. Since a substantial amount of 

aggregate data could be obtained by the 

public through these states, EPA is not 

convinced that it should accord such 

information confidential status under 

federal information law. 

We would also note that EPA cannot 

objectively determine whether a 

particular system search or FOIA 

request would entail the disclosure of a 

company’s customer list. EPA requested 

comment in the February 2008 notice to 

help us determine how many manifests 

or how much aggregate information 

should be involved in a search or an 

aggregate record before CBI concerns 

would be triggered. We received no 

comments to help us with this 

determination, other than comments 

from industry relying on a ‘‘mosaic’’ 

theory to support their argument that 

the e-Manifest system could disclose 

CBI. The mosaic theory is premised on 

the notion that information already 

available to a requestor, when combined 

with information it might obtain from 

the government, may in total amount to 

a customer list. The problem posed by 

this argument is that EPA cannot 

possibly know how much customer 

information a particular requestor 

already has available from other 

sources, or whether a relatively small or 

large amount of additional information 

is needed from e-Manifest to enable that 

requestor to assemble a full customer 

list. The mosaic theory does not provide 

EPA with any practical or objective 

basis for recognizing CBI in the eManifest system. 

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 

recognizes that manifest information in 

its possession may not be ready for 

general release to the public. Manifest 

preparers and waste handlers 

responding to manifests need sufficient 

time to address discrepancies or 

exceptions related to hazardous waste 

shipments and to verify and correct data 

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25EPA solicited comment on this issue before the 

enactment of the statute, which provides that the 

use of electronic manifests be at the election of the 

user. We believe it is appropriate to discuss the 

comments received on this issue, and our responses 

to those comments in this section. 

recorded on their manifests. Until such 

time as these corrections can be made 

and manifest data can be verified and 

finalized, manifest data will be 

considered ‘‘in process.’’ To that end, 

unless otherwise required by federal 

law, we are extending the amount of 

time that manifest data will be 

considered ‘‘in process.’’ EPA will make 

manifest information in e-Manifest 

available on-line 90 days from the date 

hazardous waste is delivered to the 

designated facility. 

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 February 2008 notice 

that we would not directly disclose 

manifest data to the public for at least 

60 days after the start of a waste 

shipment, as this period would provide 

the necessary time for the shipment to 

be delivered, for exceptions and 

discrepancies to be resolved, and for 

manifest data to be verified or corrected. 

73 FR 10204 at 10209 (February 26, 

2008). Commenters on this proposal 

noted that 60 days may not be a 

sufficient amount of time in several 

instances for manifest data to be verified 

and corrected. These commenters stated 

that it could take several months for 

manifest data to be verified and 

corrected, and one commenter noted 

delivered wastes may be stored for as 

long as a year under the RCRA Land 

Disposal Restrictions before the 

containers are opened and the wastes 

are verified before treatment. We also 

received comments indicating that there 

are hazardous waste shipments that 

could pose national security concerns if 

shipment information were to be made 

directly available to the general public 

during transportation and this 

information were to fall into the hands 

of those who might use these materials 

to do harm to other persons or to the 

homeland. 

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 online 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 will not provide 

the general public with direct, on-line 

access to these data during this 90-day 

period, but will make such information 

available to the public to the extent 

required by other Federal law, e.g., the 

Freedom of Information Act or FOIA. 

After the 90-day period of restricted 

access has passed, the Agency intends 

to provide full direct, on-line access by 

the public to all manifest data in the 

system. 

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 EPA in its role as 

the federal custodian of data in the eManifest system data repository. Since 

authorized states will receive electronic 

manifests and data simultaneously with 

EPA, this federal policy does not affect 

the states’ policies on disclosure of 

manifest data under their public 

information laws. States that wish, for 

example, to disclose manifest data to the 

public more immediately after the 

receipt of hazardous waste shipments 

are free to do so under their public 

information laws, and these states may 

continue to do so once this regulation is 

in effect. 

J. Will electronic manifests be optional 

or mandatory for users? 

1. Background. In the April 18, 2006 

NODA in which EPA announced that a 

national e-Manifest system was the 

preferred regulatory option, the Agency 

solicited comments on whether the use 

of the e-Manifest system should be 

mandatory.25 71 FR 19842 at 19845. We 

heard a number of users at the 2004 

stakeholder meeting urge EPA to 

develop an electronic manifest as an 

optional tracking tool for manifest users, 

while maintaining a paper option for 

some small businesses that may not 

have the economic incentive to invest in 

electronic manifest capabilities. While 

EPA will procure the applications and 

IT services to support electronic 

manifesting on the CDX and Exchange 

Network architecture (or other 

appropriate system), EPA understands 

that manifest users will still need to 

make initial investments—to provide or 

acquire the computers or portable frontend devices and network access for 

entering data to the e-Manifest system, 

to integrate the e-Manifest system with 

their existing data systems, etc.—before 

they can leverage the savings that will 

arise from electronic manifesting. Large 

volume users of manifests will likely 

realize the greatest net savings and 

therefore possess the greatest incentives 

to be early adopters of the e-Manifest 

system. Moreover, we anticipate that the 

larger transporters and waste 

management facilities (RCRA TSDF 

firms) would be the entities most likely 

to participate in the initial phases of eManifest system implementation, and 

that these larger entities will likely bring 

the portable technology to many of the 

small businesses and generator sites that 

they service as their customers. EPA 

expects that electronic manifest use will 

increase over time, and that users will 

be motivated primarily by the economic 

savings and convenience of electronic 

submission. Additionally, as more users 

join the e-manifest system the cost of 

maintaining a paper system will fall on 

a smaller and smaller group of paper 

users, likely resulting in ever-increasing 

fees for paper submissions. 

On the other hand, EPA has also 

heard views expressed by some that it 

would be advantageous to mandate the 

use of electronic manifests. A 

mandatory electronic manifest may 

create a more certain environment for 

the IT vendors that choose to bid on the 

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e-Manifest system procurement, and it 

would eliminate the concern among 

some state officials that an elective 

electronic manifest would result in 

disparate systems, in which some 

manifest data are received electronically 

through the e-Manifest system, while 

the remainder of manifest data would 

still exist on paper forms and would 

need to be processed manually. This 

would increase the cost of operating the 

E-manifest system. Further, there is 

much merit to the point that a 

mandatory electronic manifest will 

expedite and maximize the realization 

of economic savings and other benefits 

that will result from electronic 

manifesting. Clearly, if the electronic 

manifest were mandatory, it would be 

much easier to integrate manifest and 

RCRA biennial reporting, as the 

collection of electronic manifest data 

could replace the current process under 

which a separate set of Waste Receipt 

forms are collected from RCRA TSDFs 

for the biennial report. Therefore, we 

solicited comment on the merits of a 

mandatory versus optional electronic 

manifest. 

2. Comment Analysis. EPA received a 

number of comments from the regulated 

community and from authorized state 

agencies on the issue of an optional 

versus mandatory electronic manifest. 

Among the regulated community 

commenters, we received 10 comments 

addressing this point. Nine of the ten 

industry comments favored an optional 

E-Manifest system for users, although 

three of these comments suggested that 

EPA might consider moving to a 

mandatory system after two to three 

years. Only one industry commenter 

recommended without qualification that 

the use of electronic manifests should 

be mandatory for all users. 

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 eManifest 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 eManifest 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 April 18, 2006 NODA, there was 

more of a split of opinions on the 

question of whether the use of 

electronic manifests should be optional 

or mandatory. Of nine states that 

commented on this issue, five 

commented without qualification that 

users should be able to choose filing an 

electronic manifest, primarily on 

account of the burden that these state 

commenters perceived would fall 

unreasonably on small businesses if the 

system use were mandatory. Only one 

state agency commented unequivocally 

that e-Manifest system use should be 

mandatory for all users, so that RCRA 

regulators could avoid having to 

maintain dual tracking systems to host 

the electronic and paper form data, 

which is more expensive. On the other 

hand, three other states argued for a 

targeted approach to mandating eManifest system use. For example, one 

state asserted in its comments that 

designated facilities (waste receiving 

facilities) should be required to submit 

data electronically for all the waste they 

receive. This comment and similar 

comments from states favoring 

mandatory use of the e-Manifest system 

were more focused on mandating 

electronic reporting of waste receipt 

data by designated facilities than on the 

more specific issue of whether the use 

of the e-Manifest system should be 

mandatory for originating electronic 

manifests and tracking waste shipments 

electronically on a cradle-to-grave basis. 

On a somewhat different note, another 

state maintained in its comments that 

designated facilities should be required 

to use the e-Manifest system for 

shipments they receive from 

conditionally exempt small quantity 

generators (CESQGs). Still, another state 

with a large generator base and 

substantial experience with its current 

electronic data reporting system 

suggested a similar targeted requirement 

that would focus mandatory e-Manifest 

system use on large quantity generators 

(LQGs) or other targeted audience, 

unless excused for good cause, while 

allowing others to choose to use the eManifest system. 

3. EPA Decision on Optional vs. 

Mandatory Use. EPA is committed to 

moving toward full electronic reporting. 

EPA is persuaded by the points raised 

by the majority of commenters who 

supported the position that users should 

be able to choose the electronic manifest 

as the expected means of tracking 

hazardous waste shipments, while also 

allowing facilities the chance to opt out 

of the electronic manifest system and 

submit paper manifests. EPA will seek 

to transition to a full electronic system. 

EPA will accommodate the concerns of 

these commenters raised in 2006 and 

currently allow paper submissions as 

this electronic transition is underway. 

Congress provided EPA the authority in 

the e-Manifest Act [2(g)(1)(B)] to include 

requirements that EPA determines are 

necessary to facilitate the transition 

from the use of paper manifests to the 

use of electronic manifests, or to 

accommodate the processing of data 

from paper manifests in the electronic 

manifest system. Under this authority 

EPA will move toward its goal of a fully 

electronic system but allow for a period 

of transition to accommodate paper 

users who opt out of an electronic filing. 

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 e-Manifest 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 will become the 

predominant means for tracking 

hazardous waste shipments. As we 

implement e-Manifest, EPA will assess 

what measures might be effective to 

expedite the transition from paper 

manifests to electronic manifests, and 

may take input on fee incentives (e.g., 

shifting a greater portion of the system 

development or operating cost recovery 

to paper manifest submissions) or other 

means to meet this end. Thus, it is 

EPA’s goal to move to a fully electronic 

system to maximize the use of electronic 

manifests, so that the full benefits and 

efficiencies of electronic manifests can 

be realized as quickly as possible. This 

position is consistent with § 2(a)(5)(B) of 

the e-Manifest Act, which directs that 

the use of the electronic manifest system 

to obtain electronic manifest formats 

shall be at the election of the users. EPA 

agrees that there may be some 

businesses, particularly, small 

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businesses, that initially will not have 

the willingness or economic incentive to 

participate in the e-Manifest system. 

Over time though, paper based reporting 

will become less economical 

particularly with the potentially higher 

user fees associated with the processing 

of paper manifests. While many small 

businesses may be able to participate in 

the e-Manifest system through the 

efforts of the transporters or designated 

facilities with whom they contract for 

transportation or disposal services, this 

outcome initially should be influenced 

by market factors rather than mandated. 

EPA agrees that there are some 

businesses that interact with the 

manifest infrequently for tracking 

relatively small quantities of hazardous 

waste. These businesses may for a time 

need to continue to use the paper 

manifest form with which they are 

familiar and comfortable. In addition, 

while EPA agrees that a complete set of 

electronic waste receipt data from 

designated facilities would be 

advantageous, we also believe that this 

objective can be attained through other 

means. The proportion of manifests 

completed electronically should 

increase over time through competitive 

forces and fee incentives so that the 

amount of effort expended collecting 

and processing paper manifests should 

become less significant. As more users 

join the e-manifest system, the cost of 

maintaining a paper system will fall on 

a smaller and smaller group of paper 

users, potentially resulting in everincreasing fees for paper submissions. 

As EPA explains below in section 

III.K of this preamble, upon 

implementation of the e-Manifest 

system, EPA will require TSDFs to 

submit one final copy of their remaining 

paper manifests to EPA rather than to 

the authorized states for processing. 

These paper manifest copies will be 

processed centrally and the system 

operator will enter the data from these 

forms into the e-Manifest system. Thus, 

a complete set of designated facility data 

on hazardous waste receipts can be 

obtained in this manner without 

initially mandating a transition to the 

use of electronic manifests. The 

interests of the state commenters in 

obtaining a complete set of electronic 

data will be realized, although with 

much less efficiency than with everyone 

using the electronic manifests. 

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 optout 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. EPA is 

adopting policies (e.g., the E-Enterprise 

Initiative) across its environmental 

programs that would establish 

electronic reporting as the means of 

submitting reports to the Agency. 

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 e-Manifest 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 will become the 

predominant means for tracking 

hazardous waste shipments. As we 

implement e-Manifest, EPA will assess 

what measures might be effective to 

expedite the transition from paper 

manifests to electronic manifests, and 

may take input on fee incentives (e.g., 

shifting a greater portion of the system 

development or operating cost recovery 

to paper manifest submissions) or other 

means to meet this end. Thus, it is 

EPA’s goal to move to a fully electronic 

system so as to maximize the use of 

electronic manifests, so that the full 

benefits and efficiencies of electronic 

manifests can be realized as quickly as 

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 $1 million per year and EPA 

estimates that the labor costs alone for 

creating, handling, and processing the 

paper manifests are somewhere between 

$193 million and $769 million annually. 

The witnesses had not made their own 

independent estimate of the cost 

associated with the existing system but 

did say: ‘‘we do believe based on our 

own experience that the current system 

is quite labor intensive and, therefore, 

costly.’’ [David R. Case, Executive 

Director of Environmental Technology 

Council, June 21, 2012 before the 

Subcommittee on Environment and the 

Economy; Frederick J. Florjancic, CEO 

and President of Safety-Kleen, 

September 28, 2006 Subcommittee on 

Superfund and Waste Management]. 

These benefits should allow users and 

states to shift resources from data 

management activities to those more 

targeted at their business activities and 

at improving waste management and 

addressing any noncompliance issues. 

These shifts in focus will in turn 

contribute to increased levels of 

compliance, greater public awareness of 

local and national waste management 

trends, and a more level playing field 

for the regulated community. For the 

first time in the more than 30 years of 

hazardous waste regulation under 

RCRA, EPA, the States, and the public 

will have available a complete set of 

national data on all manifested 

shipments of hazardous waste. 

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 [David R. Case, Executive 

Director of Environmental Technology 

Council, June 21, 2012 before the 

Subcommittee on Environment and the 

Economy; Frederick J. Florjancic, CEO 

and President of Safety-Kleen, 

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September 28, 2006 Subcommittee on 

Superfund and Waste Management] 

With the transition to the electronic 

manifest, EPA will be able to collect and 

manage more efficiently the manifests 

from all the nation’s hazardous waste 

movements. 

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 evaluate in more detail when 

we announce the fee schedule and 

implementation date for the e-Manifest 

system. Any resulting savings, as well as 

the non-economic benefits discussed 

here for the electronic manifest, would 

clearly be maximized if the use of 

electronic manifests could be promoted 

and incentivized so that use approaches 

100%. 

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. 

K. How will remaining paper manifest 

forms be submitted and processed? 

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 EPA’s goal that over a period of 

several years, the use of electronic 

manifests will become the predominant 

means of tracking RCRA hazardous 

waste shipments. The incidence of 

paper form use may be initially greater 

for state-regulated or non-RCRA wastes 

subject to the manifest, as many of the 

generators of non-RCRA wastes tend to 

be smaller generators who may initially 

let the larger generators begin use of the 

e-Manifest systems before trying it or be 

dependent on the larger generators 

providing equipment. As noted above, 

in the early years the numbers of paper 

forms that remain in the manifest 

system will surely be greater than as the 

system matures. One of the outcomes of 

maintaining dual electronic and paper 

manifest submissions is that this system 

will be costlier to maintain and may 

result in higher user fees. Additionally, 

as more users choose the electronic 

manifest, the cost of maintaining a 

paper system will fall on a smaller and 

smaller group of paper users, potentially 

resulting in ever-increasing fees for 

paper submissions. 

Commenters on the April 2006 NODA 

emphasized the importance of this 

issue. Industry commenters generally 

supported elective use of electronic 

manifests, but they also questioned 

whether the resulting dual paper and 

electronic systems would generate 

complexity and burden that would 

frustrate the transition to electronic 

manifests and thus undermine the 

Agency’s and industry’s savings 

projections. State-agency commenters 

on the April, 2006 NODA offered strong 

comments indicating that their support 

for electronic manifesting was 

contingent upon there being 

implemented a means to ensure that a 

complete set of manifest data would be 

established. According to these 

commenters, a centralized system that 

did not also contain the data from paper 

manifests would not present a complete 

picture of all RCRA and state regulated 

wastes. Such a system would not be 

useful, for example, for biennial 

reporting purposes, and would result in 

states having to maintain duplicative 

processes and systems to collect and 

track the data from the remaining paper 

forms. Thus, both industry and state 

commenters urged EPA to develop the 

final rule so as to mitigate the effects of 

a dual paper and electronic manifest 

system. 

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 EPA at some regular 

frequency so that it could be merged 

with the electronic manifest data 

collection. While this would continue 

the current scope of manifest reporting 

as defined by current state copy 

submission requirements, it would not 

produce a complete set of data, as the 

manifests from states that do not now 

collect manifests would be omitted. 

As a second option for addressing the 

dual systems issue, EPA considered 

requiring all manifests now subject to 

state requirements for submission of 

manifest copies to be instead submitted 

to the e-Manifest system operator for 

collection and data processing. Quality 

assurance steps and data entry would be 

conducted consistently by e-Manifest 

system personnel, and a fee for this 

service would be collected to recover 

the paper and data processing costs. 

However, this option would be as 

limited as the first option insofar as 

continuing to collect only the same 

scope of generator and designated 

facility manifests as are now collected 

under existing state requirements for the 

submission of manifest copies. 

EPA considered still a third option, 

under which only the designated facility 

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7548 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

26EPA solicited comment on this issue prior to 

the enactment of the 2012 statute, which confers on 

EPA the discretion to require the collection of a 

paper copy of the manifest for data processing 

purposes. Thus, we are implementing this 

discretionary authority with the decision 

announced here. 

would be required to submit to the eManifest 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 eManifest system. However, statetracking 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 EPA. This 

option would, however, require the 

collection of paper manifests from 

designated facilities in all states, so, 

unlike the other two options, this third 

option would provide a complete set of 

paper manifest copies from all 

designated facilities. 

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, EPA 

presented this option for public 

comment in the February 2008 NODA.26

Comments received by EPA in response 

to the NODA discussion of this issue 

generally supported the proposal to 

require a final copy of the manifest (or 

the data and image from this copy) to be 

submitted to the system operator by the 

designated facility. 

3. Final Rule Decision. Based on the 

comments received, and the 

commenters’ desire to not have dual 

manifest systems, EPA has decided to 

adopt the approach of the third option 

for this final rule. This requirement also 

implements section 2(g)((1)(B) and 

section 2(c)(1) of the e-Manifest Act, 

which, respectively, confers discretion 

upon EPA to promulgate a regulation 

requiring that users of paper manifests 

submit paper copies to the e-Manifest 

system for data processing purposes, 

and authorizes EPA to collect a 

reasonable fee from users for the costs 

incurred in collecting and processing 

the data from any paper manifests. 

Therefore, we are implementing an eManifest system that will be structured 

so that electronic submissions will be 

the expected submission format, but 

that will allow users during a transition 

period to opt out of the electronic 

system by submitting a paper manifest, 

which will be received by the eManifest system for data processing 

purposes. 

Under today’s regulation, the 

designated facility must send to the eManifest 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 EPA may authorize the 

designated facility to transmit an image 

file to the EPA system so that the system 

personnel could key-in the data from 

the image files to the data system. 

Alternatively, the designated facility 

may be able to submit both the image 

file and a file presenting the manifest 

data to the system in image file and data 

file formats acceptable to the e-Manifest 

system operator and supported by EPA’s 

electronic reporting requirements. The 

data file submission may be subject to 

quality assurance checks, and the 

regulated entity would be responsible 

for responding to and correcting errors 

identified from this check before a 

submission is accepted for processing 

by the e-Manifest system. This latter 

alternative could result in much more 

timely receipt of the manifest data by 

the system, and avoid the need for 

manual data entry activities by the 

system operator. EPA is codifying these 

requirements for designated facilities to 

submit final paper copies or their data 

at 40 CFR 264.71(a)(2)(v) and 

265.71(a)(2)(v). 

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 eManifest system operator would also 

key-in or extract the federal- and stateregulated waste data from these copies 

to the e-Manifest system. EPA could 

extract any data regarding RCRA 

hazardous wastes for inclusion in its 

data systems, while the states could pull 

off data from the system concerning 

RCRA and state-regulated wastes for 

processing in the states’ own tracking 

systems. The designated facility would 

be required to pay a fee to the system 

operator for processing the data from 

these final copies of the paper forms, 

and the fee would vary with the type of 

submission (mailed copy, image file, or 

image plus data file), as these 

submission types will likely present a 

different level of effort insofar as the 

processing steps required to enter the 

form data into the system. The fees for 

these and other e-Manifest system 

services will be determined later by 

EPA, and published in a distinct 

regulatory document prior to the 

implementation of 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 EPA with the means to modify 

biennial reporting by TSDFs of waste 

receipts data with a much simpler 

approach that relies upon the 

designated facility data reported to the 

e-Manifest system. As states will be 

connected to the e-Manifest system 

through the Information Exchange 

Network or alternate system, they can 

download the image files or the data 

keyed from paper manifests from this 

central processing service, just as they 

will be able to obtain the data and 

presentations of electronic manifests 

from the XML schemas and stylesheets 

transmitted on the e-Manifest system. 

Finally, as EPA will be able to assess 

appropriate fees for the paper 

processing and data entry activities 

necessary to process the data from paper 

forms and enter them into the eManifest system, the actual costs of 

providing these services will be 

recovered. Since we expect that 

electronic manifests will be much more 

efficient to process than paper forms, 

the differential fees that are established 

for paper and electronic manifest 

processing will likely operate as an 

additional incentive for the transition to 

electronic manifests. 

Therefore, while EPA is clarifying in 

this rule that the use of the electronic 

manifest format is expected for 

members of the regulated community 

(with the opportunity to opt out), 

designated facilities will be required by 

this final rule to interact with the eManifest system, whether the electronic 

manifest format or the paper manifest 

form is used. EPA’s decision to collect 

the final copy of paper manifest forms 

(or their data) from designated facilities 

and to process centrally the data from 

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these paper forms means that these 

designated facilities will be required to 

interact with the e-Manifest system in 

one of two ways when submitting their 

manifests. Facilities that elect to use the 

electronic manifest format will submit 

their electronic manifests to the eManifest system, as the system will be 

designed for the very purpose of 

distributing electronic manifests among 

the users and regulatory agencies while 

the electronic manifests are being 

obtained, completed, and transmitted 

electronically on the e-Manifest system. 

On the other hand, facilities that choose 

to use the paper manifest forms rather 

than electronic manifest formats will 

physically carry and complete the paper 

manifest forms in the conventional 

manner that has been the norm since the 

hazardous waste manifest form was 

introduced in 1984. However, in lieu of 

sending a final paper manifest copy 

directly to the destination state (when 

required by the destination state), this 

final rule will require the facility to 

send Copy 1 of all the paper manifests 

(or an image and data file) to the EPA’s 

e-Manifest system operator. Thus, the 

designated facilities will be required to 

submit a final manifest copy to the eManifest system, either in a supported 

electronic format or as a paper copy, 

and to pay any associated user fees. In 

other words, the use of the electronic 

manifest format will be the expected 

manifest format for tracking hazardous 

waste shipments, unless the waste 

handler chooses to opt out and uses 

paper manifests under this final rule. 

However, with respect to designated 

facilities the submission of either a 

completed paper or electronic manifest 

to the EPA system operator will in every 

case be required. Once this requirement 

is effective, and all final copies 

(electronic or paper) from designated 

facilities are being submitted directly to 

the EPA e-Manifest system operator, the 

states will obtain their final manifest 

copies and data from the e-Manifest 

system through their nodes on the 

Environmental Information Exchange 

Network. 

L. Can I use e-Manifest if some waste 

handlers choose not to participate? 

1. Background. In the May 2001 

proposed rule, EPA recognized that 

there would be times when an 

electronic manifest could not be passed 

to or executed by all the waste handlers 

involved in a waste shipment, because 

one or more waste handlers might lack 

the technology or the capability to 

participate in the e-Manifest system. In 

the proposed rule, EPA suggested that 

for electronic manifesting to be 

effective, the receiving facility (the 

designated facility) must be able to 

receive and process electronic 

manifests, and that either the generator 

or transporters should also have the 

capability to create and transmit the 

electronic manifest. See 66 FR 28240 at 

28272. 

In particular, at the time of the 

proposed rule, EPA was of the view that 

electronic manifesting would still be 

beneficial if at least the generator and 

designated facility could exchange 

manifest and tracking information, since 

the manifest data entry, record keeping, 

and the very important function of 

verifying the receipt of wastes (or 

reporting discrepancies) between the 

generator and the designated facility 

could still be conducted electronically, 

as might any reporting of manifest data 

by generators or designated facilities to 

authorized states. Thus, we discussed in 

the proposed rule a procedure whereby 

the generator and receiving designated 

facility could conduct electronic 

manifest exchanges among themselves 

and their states, while allowing any 

non-participating transporters to 

continue to sign and retain a paper copy 

that would be marked up to show the 

unique tracking number assigned to the 

transaction by the e-Manifest system. Id. 

The proposal further suggested that a 

check box or other notation could be 

entered on the electronic manifest to 

indicate when the transporter took 

delivery of the waste, and to indicate 

that the transporter signed and retained 

a paper copy of the manifest. Id. 

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 eManifest 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 EPA needs 

to provide additional guidance to 

address the cases where transporters 

cannot participate in the electronic 

system. These commenters asked for 

particular clarification of such points as: 

(1) whether generators and designated 

facilities would be required to retain 

paper copies of manifests signed in ink 

by non-participating transporters; and 

(2) how would the electronic manifest 

record note that such a transporter’s 

signature is on file and recorded on a 

hard copy manifest? 

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 is not adopting the 

proposed rule approach under which 

non-participating transporters could 

sign and retain paper manifest copies, 

while other handlers participated 

through the electronic manifest. This 

final rule instead specifies that the 

electronic manifest format can be used 

for tracking waste shipments only when 

it is known at the outset of the waste 

shipment that all waste handlers named 

on the manifest can participate 

electronically. Under the final rule, it is 

of course permissible for generators 

lacking their own electronic equipment 

to participate in the electronic manifest 

through use of a transporter’s or 

designated facility’s equipment, and, 

likewise, a transporter engaged in a 

waste pickup or delivery may use a 

participating generator’s or designated 

facility’s equipment to conduct 

electronic manifesting. However, if at 

the outset it is known that a generator, 

transporter, or designated facility named 

on the manifest cannot or will not 

participate in the electronic manifest, 

then the shipment is ineligible for the 

electronic manifest, and the standard 

paper manifest must be used to track the 

shipment in the conventional manner. 

EPA considered an approach whereby 

non-participating transporters would be 

accommodated by requiring the 

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7550 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

generator to supply sufficient printouts 

of the electronic manifest for all nonparticipating transporters. We 

considered specifying in this rule 

detailed procedures calling for the 

various paper copies to be manually 

signed and dated by the nonparticipating 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 system to manage the paper 

copies mailed to the system for 

processing, and to merge the data from 

the paper copy with the electronic 

manifest record previously entered into 

the system. Finally, we identified 

potential enforcement issues with this 

approach, as the complete shipment 

record would consist of both electronic 

and paper components, neither of which 

could be relied on by itself for a full 

accounting of the shipment. 

EPA proposed the partial electronic 

and manual process for nonparticipating 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 EPA and state data systems. 

While the effect of this decision is likely 

to exclude some waste shipments from 

being tracked with the electronic 

manifest, we believe that the final rule 

will be much more practical and 

straightforward to implement. The 

Agency prefers to see the technical 

barriers to transporters’ participation 

reduced, so that more transporters will 

participate in the electronic manifest, 

rather than establishing a complex 

process that may only perpetuate the 

use of paper-based tracking procedures 

by these transporters. 

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 preprinted 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 preprinted 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 § 262.24(e) of the generator 

requirements. 

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 § 263.20(a)(6) of the 

transporter regulations. 

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 eManifest 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 

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27The provision of e-Manifest services by October 

2015 will be a challenge for EPA not only on 

account of the ambitiousness of the project and 

statutory schedule, but also because of the 

uncertainty whether sufficient funding will be 

available to seed the system development in only 

3 years. 

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 preshipment 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. EPA and 

members of the manifest user 

community will discuss the 

performance and design requirements 

for addressing errors and corrections as 

we plan for the procurement action that 

will lead to the development and 

operation of the e-Manifest system. 

The larger e-Manifest data system will 

also include data obtained from paper 

manifest forms and submitted to the eManifest 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. California, for 

example, estimates that up to 60% of 

manifests have some errors. The most 

serious errors compromise the use of the 

data for such purposes as waste stream 

analysis, revenue collection, and 

enforcement. If manifest data are to be 

useful for these purposes as well as for 

other purposes, such as streamlining the 

biennial reporting process, then the 

accuracy of manifest data must be 

improved. For this to occur, it will be 

necessary to establish a process for 

manifest corrections. 

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. EPA, states 

and the e-Manifest stakeholder groups 

will coordinate to develop processes 

regarding corrections and notifications 

when previously submitted manifest 

data are changed. The states will 

continue to have a critical role in 

identifying errors and correcting them. 

IV. EPA’s E-Manifest System 

Implementation Planning 

A. Introduction 

Under the e-Manifest Act, EPA is 

required to establish the national eManifest system through a performancebased contract within 3 years of 

enactment of the e-Manifest Act, that is, 

by October 2015. This is a very 

ambitious undertaking 27 that will 

involve a great deal of outreach with our 

stakeholders (which has already begun) 

as we plan for system implementation. 

For example, during the 2nd through 

4th quarters of Fiscal Year 2013, EPA 

began its procurement activities related 

to e-Manifest by conducting market 

research with IT vendors to determine 

vendor capabilities and the availability 

of existing systems and components that 

could be useful to the development of 

e-Manifest. We also conducted system 

requirements meetings during 

February–March 2013 in Washington, 

DC, Chicago, and Denver, in order to 

elicit from stakeholders their preferred 

system functionalities and 

requirements. This information was 

quite useful in the development of 

Requirements Analysis and Alternatives 

Analysis documents, which EPA will 

use to guide its evaluation of system 

design alternatives and to develop more 

current benefit and cost estimates for 

the various system design options. 

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 eManifest 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, 

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28EPA and stakeholders will discuss the service 

availability metric as a performance requirement as 

we begin system design planning. The cost of the 

system will be influenced by the service availability 

metric, and of course, under any such performance 

metric, there will need to be maintenance windows 

provided. 

• 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 EPA’s CROMERR Rule: 

• ‘‘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 EPA will explore is the 

hosting of the e-Manifest system on 

EPA’s Central Data Exchange or CDX, 

which is EPA’s designated gateway 

through which environmental 

information electronically enters the 

Agency. CDX is also the point of 

presence, or node, through which data 

are exchanged with the states, tribes, 

and other trusted partners. The CDX 

receives data, authenticates users 

securely, transforms the data from 

submitting organizations, archives the 

data, and provides that data to EPA’s 

national systems and to States though 

their Exchange Network nodes. The 

CDX supports data exchanges with 

target systems using web services, and 

it supports a variety of reporting 

formats. Before a decision can be made 

on the e-Manifest hosting architecture, 

we will also evaluate non-CDX 

alternatives that provide similar 

services. The provision of e-Manifest 

services will require significant 

availability 28 as well as 24/7/365 

service reliability. The development and 

implementation of the e-Manifest 

system pose novel challenges and 

opportunities for EPA and the user 

community, so we will want to select a 

hosting environment that can support 

all e-Manifest services and provide all 

necessary technical support most 

effectively and reliably. 

C. How will EPA notify users that EPA 

is ready to implement electronic 

manifesting? 

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 eManifest 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, EPA will announce in a 

separate Federal Register document that 

the e-Manifest system is available to 

supply and process electronic manifests. 

This document will also publish the 

delayed compliance and 

implementation date on which eManifest services will commence in all 

states, the fee schedule for electronic 

manifest and paper manifest 

submissions, and the arrangements for 

submitting those paper manifests that 

remain in use after the announced 

compliance and implementation date of 

e-Manifest. 

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 

EPA of a national e-Manifest system for 

submitting and transmitting electronic 

manifests. With the implementation of 

this regulation and the national eManifest system, there will be no role 

for states insofar as establishing their 

distinct or alternative electronic 

manifest reporting systems. States will 

collect manifests and data from the 

national e-Manifest system, but the 

entire submission and reporting process 

that will give rise to electronic manifest 

copies of record will occur on the 

national system. As there will be no 

CROMERR related approval 

requirements for states resulting from 

this regulation, the remainder of this 

section addresses the RCRA state 

program authorization requirements 

resulting from this regulation. 

In the May 2001 proposed rule, EPA 

identified as a significant issue the 

question of whether RCRA authorized 

states should be required to adopt the 

electronic manifest as a component of 

their authorized programs. See 66 FR 

28240 at 28299. As EPA explained in 

the May 2001 proposal, the more precise 

question was whether program 

consistency standards under RCRA 

section 3006 and our regulation on 

manifest program consistency codified 

at 40 CFR 271.4(a) and (e) required 

states to adopt the electronic manifest. 

Under RCRA section 3006, an 

authorized state program must be 

consistent with the Federal Subtitle C 

program and with other authorized state 

programs. Moreover, as for a state’s 

manifest requirements, EPA’s 

regulations at § 271.4(a) and (e) 

addressing program consistency explain 

that a state’s manifest system is 

inconsistent if it does not meet EPA’s 

requirements or if it unreasonably 

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29EPA’s solicitation of comment on this issue was 

before the enactment of the e-Manifest Act, which 

now clearly mandates that the e-Manifest 

regulations will take effect in all states on the 

effective date specified by EPA’s regulation. While 

this issue was determined by the statute, we 

nevertheless believe it is appropriate to discuss the 

comments we received on this question and 

responses to those comments. 

impedes the free movement of 

hazardous waste. With respect to the 

electronic manifest, the Agency was 

concerned in May 2001 that if some 

states chose not to adopt the electronic 

manifest, there could result a patchwork 

of states that would accept or not accept 

electronic manifests as valid substitutes 

for the paper forms. The patchwork 

effect itself might unduly burden the 

free movement of waste among the 

states or might even frustrate the 

development and successful 

implementation of the electronic 

manifest by an IT vendor. Id. 

Despite these concerns, EPA 

tentatively decided in the May 2001 

proposed rule not to mandate the 

adoption by states of the electronic 

manifest requirements in authorized 

state programs. We explained in the 

proposal that we believed that there 

were strong practical and business 

influences that would promote the 

adoption of the electronic manifest by 

the states, without a mandate from EPA. 

Id. However, EPA requested specific 

comments on how electronic 

manifesting should be implemented 

among the various authorized states. 

The Agency further intimated that it 

could decide in the final rule to 

mandate adoption of the electronic 

manifest by the authorized states, if the 

Agency were persuaded that 

implementation of the electronic 

manifest as an elective program 

component for states would produce the 

patchwork effect or other consistency 

problems that would unduly burden the 

free movement of waste in commerce. 

Id. 

In addition, the May 2001 proposed 

rule also noted that the electronic 

manifest would not be considered a 

‘‘shipping paper’’ within the meaning of 

DOT’s HRM. See 49 CFR 172.205. This 

interpretation results in a different 

outcome for electronic manifests than 

for the paper manifest form. With 

respect to the paper manifest form, the 

RCRA manifest form is accepted by DOT 

as a hazardous materials shipping 

paper. As a further result of this 

interpretation, DOT hazardous materials 

law preempts states from requiring the 

use of different manifest forms or 

requiring additional information to be 

carried with waste shipments. 49 U.S.C. 

5125(b)(1)(C). Further, when EPA and 

DOT announced changes to the paper 

manifest form, such as we announced 

on March 4, 2005, we explained that 

consistency in the use of hazardous 

materials shipping papers requires that 

the revised manifest form must be 

implemented in all states on the same 

effective date. Therefore, the discussion 

of consistency in implementation of the 

electronic manifest in this final rule 

requires EPA to decide: (1) whether 

authorized states must adopt the 

electronic manifest to maintain 

consistent authorized programs; and (2) 

whether the electronic manifest must be 

implemented in all states on the same 

effective date and, if so, what authority 

EPA is relying upon to support this 

position.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 EPA use its 

‘‘consistency’’ rule under 40 CFR 271.4 

to establish in its final rule that 

authorized state program consistency 

requirements must extend to requiring 

all authorized states to adopt the 

electronic manifest in order to maintain 

their program authorization. 

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 eManifest system. In addition, several 

state agency commenters suggested that 

EPA explain in more detail the 

implications of states not adopting the 

electronic manifest requirements. For 

example, these commenters opined that 

the Agency needed to describe the 

implications and procedures when 

waste shipments were hauled from a 

state that recognized the validity of 

electronic manifests to a state that has 

not adopted the electronic manifest 

regulation. In addition, several state 

commenters requested that EPA clarify 

whether the regulated community could 

begin to use the electronic manifest 

before each state has adopted its 

electronic manifest regulations. 

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 EPA to 

authorize and implement the electronic 

manifest shall take effect in each state 

as of the implementation date that EPA 

specifies by regulation. That uniform 

date is not specified in this regulation, 

but will be announced by EPA in a 

separate regulatory document that the 

Agency will publish prior to the 

implementation of the system. 

Moreover, section 2(g)(3) of the eManifest Act provides that EPA shall 

carry out the federal electronic manifest 

regulations promulgated under the eManifest Act in each state unless the 

state program is fully authorized to 

carry out such regulations in lieu of 

EPA. 

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 EPA in all 

states on the same implementation and 

compliance date until the state 

programs are fully authorized for their 

program revisions adopting the 

electronic manifest regulations under 

state law. These provisions have the 

effect of establishing a federal/state 

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relationship for electronic manifest 

implementation that is very similar to 

the type of relationship that was 

required by Congress for the Hazardous 

and Solid Waste Amendments Act 

(HSWA) of 1984, which addressed, 

among other things, the requirements 

for corrective action for hazardous waste 

releases, and restrictions on the land 

disposal of hazardous wastes. 

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 EPA. As the states became authorized 

for the HSWA program revisions, 

implementation and enforcement 

responsibility for these program 

elements shifted to the RCRA 

authorized state programs. Thus, we 

expect a similar federal/state 

implementation pattern to develop with 

respect to the electronic manifest, with 

EPA initially implementing and 

enforcing the electronic manifest 

federally in all states, and with the 

states assuming these responsibilities as 

they obtain authorization for their 

electronic manifest program revisions. 

The electronic manifest requirements 

imposed under the e-Manifest Act are 

required to be consistently implemented 

in the states under section 2(g)(2) of the 

e-Manifest Act, and EPA will implement 

the federal requirements under section 

2(g)(3) of the e-Manifest Act until the 

States obtain final authorization for the 

e-Manifest regulations that are 

consistent with the federal 

requirements, as required by 40 CFR 

271.4(c). Therefore, for state 

authorization purposes, the 

requirements imposed under the eManifest Act supersede any 

requirements under state law that are 

less stringent than EPA’s e-Manifest 

requirements, and they also supersede 

any requirements that are non-uniform 

or inconsistent with EPA’s e-Manifest 

requirements. 

This policy of consistency with 

respect to the implementation of the eManifest regulations applies with equal 

force to the electronic signatures 

implemented in accordance with this 

regulation. EPA is aware that numerous 

states have adopted electronic signature 

laws applicable to documents signed 

electronically in the respective states. 

These state laws take various forms, 

with some requiring specific signature 

technologies, others imposing 

performance standards, and others 

modeled on the e-Sign Act of 2000. 

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. EPA has evaluated 

electronic signatures in this regulation 

for their compliance with EPA’s 

electronic signature policy for the 

CROMERR regulation, which has as its 

goal to ensure that electronically signed 

manifests have the same legal 

dependability and validity as the paper 

manifests that have been recognized as 

valid for many years under federal and 

state law. Therefore, the electronic 

signatures adopted for the e-Manifest 

shall be implemented consistently in all 

states on the implementation and 

compliance date of the e-Manifest 

regulation. 

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, the 

regulated community can begin to use 

the electronic manifest with confidence 

after the start-up date announced by 

EPA. The implementation and 

compliance date for the e-Manifest will 

be determined and announced in a 

subsequent Federal Register document, 

after EPA has determined that the 

system, the states, and user community 

are ready to transmit and receive 

electronic manifests. 

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 EPA in an authorized state except 

where the state has received final 

authorization for state program revisions 

implementing the electronic manifest 

requirements under state law. 

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. First, § 271.10(f)(1) has been 

amended to clarify that the states’ 

manifest programs must require the use 

of the paper or electronic manifest 

formats as required by § 262.20(a) of this 

regulation. The revised language of this 

paragraph further clarifies that no other 

manifest form, electronic format, 

shipping document, electronic signature 

requirement, or information other than 

that required by federal law may be 

required by the state to travel with the 

shipment, or to be transmitted 

electronically, or used with an 

electronic manifest, as a means to track 

the transportation and delivery of 

hazardous waste shipments. Second, the 

text of paragraph (f)(3) of this section 

has been amended to provide that state 

programs must require that all 

hazardous waste generators ensure that 

all wastes offered for transportation are 

accompanied by a manifest form or are 

tracked by an electronic manifest, 

except as provided in existing subparagraphs (f)(3)(i) and (f)(3)(ii). Finally, 

paragraph (h) of § 271.10 was amended 

to clarify that just as the states must 

consistently follow the federal manifest 

format for the paper forms (Forms 8700– 

22 and 8700–22A) and the instructions 

for these forms, the states must also 

follow the electronic manifest format 

and instructions to be supplied by 

EPA’s e-Manifest System. 

EPA is not amending at this time the 

provisions of § 271.10(h)(2), which 

currently provide that either the 

generator state or the consignment state 

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30This 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. 

to which waste is manifested, or both, 

may require that paper copies of the 

manifest form be submitted directly to 

the state. As discussed in section III.K. 

of this preamble, EPA has determined 

that at such time as the e-Manifest 

system becomes operational, the 

requirement for designated facilities to 

supply paper manifest copies directly to 

states will be replaced with a 

requirement for designated facilities to 

submit their paper manifest copies to 

the e-Manifest System for data 

processing, although we would note that 

states could still require the collection 

of generator copies as a component of 

state programs under state law. Since 

the date on which this requirement will 

become effective has not yet been 

determined, and is contingent upon the 

readiness of the e-Manifest system and 

upon EPA’s determining how best to 

schedule the collection of the facility 

copies by the System, the current 

provisions of paragraph (h)(2) will 

remain unchanged and effective until 

EPA announces the schedule for the 

receipt of facility copies and then 

amends these provisions accordingly. 

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 § 271.11(c)(1) to clarify 

that the states’ transporter regulations 

must require transporters to carry the 

paper manifest forms or one printed 

copy of the electronic manifest during 

transport, except as provided in this 

section for shipments by rail or water. 

The one printed copy of the electronic 

manifest must be carried on the 

transport vehicle as a means to inform 

emergency responders of the shipment 

contents and hazards in the event of an 

incident with the vehicle during 

transport. This requirement will remain 

in place for as long as DOT requires a 

paper shipping document to be carried 

on transport vehicles for access by 

emergency responders under 49 CFR 

177.817(e). 

EPA is not promulgating at this time 

any substantive changes to 40 CFR 

271.12, dealing with state program 

requirements for hazardous waste 

management facilities. We are 

eliminating, however, a parenthetical 

statement addressing electronic 

manifests in current § 271.12(h), which 

suggests that electronic manifesting 

would be subject to distinct 

requirements in paragraph (i) of 

§ 271.12, rather than the Agency’s 

electronic reporting requirements of 40 

CFR part 3. This language was added at 

a time when it was presumed that the 

electronic manifest would be a distinct 

electronic report that operated outside 

of EPA’s electronic reporting regulations 

at 40 CFR part 3. Since this regulation 

announces that the e-Manifest will be a 

national system whose users will be 

subject to the Part 3 requirements for 

electronic reporting to EPA, the 

parenthetical statement is no longer 

accurate and is confusing. Therefore, it 

has been removed from this section. 

In addition, we are not currently 

amending § 271.12(i), which addresses 

the distribution of signed manifest 

copies by designated facilities. As we 

discussed in section III.K. of this 

preamble, when the e-manifest system is 

ready to be implemented, EPA will 

announce a schedule by which facilities 

will submit a final paper manifest copy 

to the e-Manifest system for processing, 

rather than submit them to authorized 

states. At such time as EPA determines 

its schedule for making the e-Manifest 

System available for use and for 

receiving facilities’ paper copies, we 

will amend paragraph (h) of § 271.12 to 

clarify that state programs must provide 

for the submission of these facility 

copies to the e-Manifest System. 

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 EPA 

develops and implements this new 

electronic system and establishes a 

program of fees to be imposed upon 

users of the e-manifest system. A 

subsequent rulemaking will establish 

the schedule of user fees for the system 

and announce the date on which the eManifest will be implemented and 

available to users. A Regulatory Impact 

Analysis will accompany that rule, and 

will analyze the effects of that rule in 

conjunction with this e-Manifest rule 

which establishes the framework. 

Nevertheless, we would note that in 

drafting a 2009 Alternatives Analysis 

conducted by EPA as part of the capital 

planning process for e-Manifest, we 

determined that the majority of the 

benefits would result from a reduction 

in the administrative costs of using and 

processing the paper manifest, 

including the paper work burden of 

completing, carrying, mailing and filing 

the paper manifest copies, and the other 

manual processes involved with 

scanning manifests or keying data to 

and from the paper forms and the data 

systems that support industry users and 

state agencies. 

Using information from the ICR (OMB 

Control No. 2050–0039, EPA ICR No. 

801.16), EPA determined that the 

administrative costs are reduced by 25% 

as a result of the e-Manifest system. In 

the 2009 Alternatives Analysis, we 

developed cost and savings estimates for 

a design alternative that involved 

mobile devices accessing our web based 

national system. For this design 

alternative, we estimated there to be two 

distinct categories of annual manifest 

administrative costs: (1) About $109 

million in Federal manifest 

administrative costs, and (2) about $ 150 

million in State manifest administrative 

costs. We also included cost estimates of 

about $23 million per year for the 

administrative costs of complying with 

the RCRA biennial reporting 

requirements, as e-Manifest will be 

developed to integrate with biennial 

reporting after initial system 

implementation. These annual 

administrative costs total to about $297 

million. When these costs are factored 

by the 25% reduction rate estimated for 

this e-Manifest design option, the cost 

savings for e-Manifest amount to $74.2 

million per year.30 We estimate that 

there will be annual administrative 

burden hour savings of between 300,000 

and 700,000 hours, at the time the eManifest is implemented. While we 

anticipate significant net savings to the 

users once e-Manifest is implemented, 

we do not have an estimate of the net 

savings at this time, because we have 

not yet conducted the procurement 

process for the system and thus cannot 

determine the system costs. Therefore, 

our 2009 analysis supports our 

testimony to Congress in June 2012 that 

e-Manifest cost savings will 

approximate $75 million annually. The 

Agency will present more current and 

detailed cost and benefit estimates when 

we develop the Regulatory Impact 

Analysis for the Fee Rule. 

We would note that part of the reason 

for establishing an electronic tracking 

system for hazardous waste shipments 

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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, 

October 4, 1993), this action is 

considered a ‘‘significant regulatory 

action,’’ because it may raise novel legal 

or policy issues. Accordingly, the EPA 

submitted this action to OMB for review 

under Executive Order 12866 and 13563 

(76 FR 3821, January 21, 2011). Any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

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 

Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations for 

manifest completion, transmittal, and 

recordkeeping for hazardous waste 

generators at 40 CFR part 262, Subpart 

B, for hazardous waste transporters at 

part 263, Subpart B, and for TSDFs at 

parts 264 and 265, Subpart E under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2050– 

0039. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

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 EPA establishes the 

e-Manifest system, which the e-Manifest 

act requires EPA to establish within 

three years from the statute’s date of 

enactment. The Act was signed into law 

in October 2012, which means that the 

system for electronic manifesting of 

hazardous waste shipments authorized 

by this rule should be available by 

October 2015. EPA is taking action now 

to meet the statutory deadline, but 

unknown variables (e.g., funding 

contingencies for e-Manifest system 

development) could delay the actual 

deployment of the system. Therefore, 

until EPA announces in a subsequent 

Federal Register document that the eManifest system is available for use, 

hazardous waste generators, 

transporters, and treatment, storage, and 

disposal facilities (TSDFs) must 

continue to comply with the current 

paper-based manifest system and use 

the existing paper manifests forms (i.e., 

EPA Forms 8700–22 and 8700–22A) for 

the off-site transportation of hazardous 

waste shipments. 

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. 601 et seq., 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute, unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

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 Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

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 eManifest 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. 

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G. Executive Order 13045: Protection of 

Children From Environmental Health & 

Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not present 

environmental health and safety risks or 

impacts to children, and because it does 

not affect the level of protection 

provided to human health or the 

environment. Today’s rule still requires 

that hazardous waste be subject to the 

manifest requirement, although it could 

be in electronic format or paper format. 

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, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

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 EPA to use voluntary 

consensus standards in its regulatory 

activities, unless to do so would be 

inconsistent with applicable law or 

otherwise impractical. Voluntary 

consensus standards are technical 

standards (e.g., materials specifications, 

test methods, sampling procedures, and 

business practices) that are developed or 

adopted by voluntary consensus 

standards bodies. The NTTAA directs 

EPA to provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. This 

final rule does not involve technical 

standards. Therefore, EPA is not 

considering the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

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. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A Major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective August 6, 2014. 

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: January 13, 2014. 

Gina McCarthy, 

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: 

§ 260.2 Availability of information; 

confidentiality of information. 

(a) Any information provided to EPA 

under parts 260 through 266 and 268 of 

this chapter will be made available to 

the public to the extent and in the 

manner authorized by the Freedom of 

Information Act, 5 U.S.C. section 552, 

section 3007(b) of RCRA and EPA 

regulations implementing the Freedom 

of Information Act and section 3007(b), 

and part 2 of this chapter, as applicable. 

(b) Except as provided under 

paragraph (c) of this section, any person 

who submits information to EPA in 

accordance with parts 260 through 266 

and 268 of this chapter may assert a 

claim of business confidentiality 

covering part or all of that information 

by following the procedures set forth in 

§ 2.203(b) of this chapter. Information 

covered by such a claim will be 

disclosed by EPA only to the extent, and 

by means of the procedures, set forth in 

part 2, Subpart B, of this chapter except 

that information required by § 262.53(a) 

and § 262.83 that is submitted in a 

notification of intent to export a 

hazardous waste will be provided to the 

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U.S. Department of State and the 

appropriate authorities in the transit 

and receiving or importing countries 

regardless of any claims of 

confidentiality. However, if no such 

claim accompanies the information 

when it is received by EPA, it may be 

made available to the public without 

further notice to the person submitting 

it. 

(c)(1) After August 6, 2014, no claim 

of business confidentiality may be 

asserted by any person with respect to 

information entered on a Hazardous 

Waste Manifest (EPA Form 8700–22), a 

Hazardous Waste Manifest Continuation 

Sheet (EPA Form 8700–22A), or an 

electronic manifest format that may be 

prepared and used in accordance with 

§ 262.20(a)(3) of this chapter. 

(2) EPA will make any electronic 

manifest that is prepared and used in 

accordance with § 262.20(a)(3), or any 

paper manifest that is submitted to the 

system under §§ 264.71(a)(6) or 

265.71(a)(6) of this chapter available to 

the public under this section when the 

electronic or paper manifest is a 

complete and final document. 

Electronic manifests and paper 

manifests submitted to the system are 

considered by EPA to be complete and 

final documents and publicly available 

information after 90 days have passed 

since the delivery to the designated 

facility of the hazardous waste shipment 

identified in the manifest. 

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: 

§ 260.10 Definitions. 

* * * * * 

Electronic manifest (or e-Manifest) 

means the electronic format of the 

hazardous waste manifest that is 

obtained from EPA’s national e-Manifest 

system and transmitted electronically to 

the system, and that is the legal 

equivalent of EPA Forms 8700–22 

(Manifest) and 8700–22A (Continuation 

Sheet). 

Electronic Manifest System (or eManifest System) means EPA’s national 

information technology system through 

which the electronic manifest may be 

obtained, completed, transmitted, and 

distributed to users of the electronic 

manifest and to regulatory agencies. 

* * * * * 

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 EPA 

electronic manifest system, or 

(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 

§ 264.71(a)(2)(v) or § 265.71(a)(2)(v) of 

this chapter. These paper copies are 

submitted for data exchange purposes 

only and are not the official copies of 

record for legal purposes. 

* * * * * 

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 § 262.20, add paragraph (a)(3) to 

read as follows: 

§ 262.20 General requirements. 

* * * * * 

(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 

§ 262.24 for use of electronic manifests, 

and 

(ii) Complies with the requirements of 

40 CFR 3.10 for the reporting of 

electronic documents to EPA. 

* * * * * 

■ 6. Add §§ 262.24 and 262.25 to 

subpart B to read as follows: 

§ 262.24 Use of the electronic manifest. 

(a) Legal equivalence to paper 

manifests. Electronic manifests that are 

obtained, completed, and transmitted in 

accordance with § 262.20(a)(3), and 

used in accordance with this section in 

lieu of EPA Forms 8700–22 and 8700– 

22A 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 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 EPA or 

authorized state inspector. 

(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 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7559 

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 § 262.23. 

(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 EPA for 

the origination 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 this part. 

§ 262.25 Electronic manifest signatures. 

Electronic signature methods for the 

e-Manifest system shall: 

(a) Be a legally valid and enforceable 

signature under applicable EPA and 

other Federal requirements pertaining to 

electronic signatures; and 

(b) Be a method that is designed and 

implemented in a manner that EPA 

considers to be as cost-effective and 

practical as possible for the users of the 

manifest. 

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: 

§ 263.20 The manifest system. 

(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 § 262.23, or is provided 

with an electronic manifest that is 

obtained, completed, and transmitted in 

accordance with § 262.20(a)(3) of this 

chapter, and signed with a valid and 

enforceable electronic signature as 

described in 40 CFR 262.25. 

(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 September 5, 2006. The Manifest 

form and procedures in 40 CFR 260.10, 

261.7, 263.20, and 263.21, contained in 

the 40 CFR, parts 260 to 265, edition 

revised as of July 1, 2004, were 

applicable until September 5, 2006. 

(4) Use of electronic manifest—legal 

equivalence to paper forms for 

participating transporters. Electronic 

manifests that are obtained, completed, 

and transmitted in accordance with 

§ 262.20(a)(3) of this chapter, and used 

in accordance with this section in lieu 

of EPA Forms 8700–22 and 8700–22A, 

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, carry, provide, 

give, use, or retain a manifest. 

(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 EPA or authorized state inspector. 

(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 EPA system for which the 

transporter bears no responsibility. 

(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. 

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7560 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

(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 § 263.25 to subpart B to read 

as follows: 

§ 263.25 Electronic manifest signatures. 

(a) Electronic manifest signatures 

shall meet the criteria described in 

§ 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 § 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 § 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 

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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 

§ 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 § 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: 

§ 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 § 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 § 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. 

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7562 Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 

(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 eManifest 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 

§ 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 § 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: 

§ 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: 

§ 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 § 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: 

§ 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 

§ 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– 

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Federal Register / Vol. 79, No. 26 / Friday, February 7, 2014 / Rules and Regulations 7563 

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 

§ 260.10 of this chapter. 

* * * * * 

■ 18. Section 271.11 is amended by 

revising paragraph (c)(1) to read as 

follows: 

§ 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 U. S. 

Department of Transportation’s 

Hazardous Materials Regulations, 49 

CFR parts 171–180, require a paper 

shipping document on the transport 

vehicle, to carry one printed copy of the 

electronic manifest during transport, 

except in the case of shipments by rail 

or water, for which transporters may 

carry a shipping paper as specified in 40 

CFR 263.20(e) and (f). 

* * * * * 

[FR Doc. 2014–01352 Filed 2–6–14; 8:45 am] 

BILLING CODE 6560–50–P 

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