```

[Federal Register Volume 79, Number 26 (Friday, February 7, 2014)]
[Rules and Regulations]
[Pages 7517-7563]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01352]

[[Page 7517]]

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

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

[[Page 7518]]

-----------------------------------------------------------------------

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 off-site 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 e-Manifest, 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 e-Manifest 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 (non-wastewaters and wastewaters). These entities currently 
use between 4.6 and 5.6 million EPA Uniform Hazardous Waste Manifests 
(EPA Form 8700-22 and continuation sheets EPA Form 8700-22A) to track 
hazardous waste shipments from the site of generation to sites of 
treatment, storage, or disposal. These entities include but are not 
limited to: Hazardous waste generators; hazardous waste transporters; 
and owners and operators of treatment, storage and disposal facilities 
(TSDFs). The rule also affects state government agencies with 
authorized RCRA programs under 40 CFR Part 271, and governmental 
enforcement personnel dealing with hazardous waste transportation 
issues, who regularly use data from manifest for compliance monitoring, 
program management, and other purposes.
    Significantly, this rule establishes the legal and policy framework 
for the national e-Manifest system authorized by the e-Manifest 
Establishment Act. This rule will allow manifest users to use an 
electronic hazardous waste manifest system with a goal of replacing the 
paper manifest forms. Once the national e-Manifest system is available, 
the use of electronic manifests will be the expected means for tracking 
hazardous waste shipments, although the Act and our regulations will 
allow users to currently opt out of the electronic manifest and 
continue to use the paper forms. We expect the use of electronic 
manifests to become the predominant means for tracking hazardous waste 
shipments. As we implement e-Manifest, EPA will assess what measures 
might be effective to

[[Page 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 cost-effective 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

[[Page 7520]]

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 e-Manifest 
system that would consistently and securely generate and process 
electronic manifests. We heard points discussed in favor of both a 
privately-hosted 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 e-Manifest 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 fee-funded 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

[[Page 7521]]

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 e-Manifest 
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

[[Page 7522]]

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 e-Manifest 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 e-Manifest 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:
    [cir] Meets the needs of the user community, including states that 
rely on manifest data,
    [cir] Attracts sufficient user participation and service fee 
revenues to ensure the viability of the system,
    [cir] Decreases the administrative burden on the user community, 
and
    [cir] 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 start-up 
activities, with these development costs as well as operation and 
maintenance costs ultimately being offset by the service fees collected 
from manifest users under section 2(c) of the e-Manifest Act.
     Section 2(e)(3)(C)(iv) of the e-Manifest Act provides that 
one of several measures of successful contract performance for the e-
Manifest system IT contract shall be the development of a system that 
provides the waste receipt data applicable to the RCRA biennial reports 
required under RCRA section 3002(a)(6).
     Section 2(f) of the e-Manifest Act directs 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\
---------------------------------------------------------------------------

    \1\ The 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).
    \2\ The 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.
---------------------------------------------------------------------------

     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

[[Page 7523]]

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 e-Manifest 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 e-Manifest Act, the e-Manifest 
system and the performance based contract authorized under Sec.  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 e-Manifest 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 e-Manifest system announced today 
will satisfy one of several mandates of the e-Manifest Act, it will 
also confer substantial benefits. These benefits have always been the 
key drivers for the e-Manifest project, and they were the main impetus 
for the 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.
---------------------------------------------------------------------------

    \3\ While the integration of e-Manifest and the collection of 
waste receipt data for the biennial report is included in the Act as 
one of several measures of successful performance of the e-Manifest 
IT contract, the details of biennial report integration are not 
included in today's rule but are being deferred to a later phase of 
e-Manifest implementation.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \4\ While EPA will include more current and detailed estimates 
of the anticipated costs and benefits from e-Manifest in the 
Regulatory Impact Analysis (RIA) that will accompany the upcoming 
Fee Rule, we have included these 2009 estimates as rough benchmarks 
for the magnitude of burden and cost savings that we believe are 
likely to result from a fully operational system that is broadly 
adopted by the user community.
---------------------------------------------------------------------------

    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 e-Manifest 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

[[Page 7524]]

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 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 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 e-Manifest fee schedule regulation, 
EPA will develop a Regulatory Impact Analysis discussing the expected 
costs, benefits, and other impacts of the e-Manifest 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 e-Manifest 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\
---------------------------------------------------------------------------

    \5\ Congress 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.
---------------------------------------------------------------------------

    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 Sec.  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

[[Page 7525]]

``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 e-Manifest 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 e-Manifest system will also 
be available to track shipments of certain types of RCRA hazardous 
waste (e.g., universal waste under 40 CFR part 273 and small quantity 
generator (SQG) wastes subject to reclamation agreements under 40 CFR 
262.20(e)) which may be exempted from the manifest requirements under 
federal regulation but are subject to the manifest requirements because 
of more stringent state laws. Similarly, the e-Manifest system will be 
available to track intrastate shipments of state regulated (or ``state 
only'') wastes that are subject to a manifest requirement in the state 
in which the waste is generated and managed, if the generator, 
transporter, and receiving facility elect to use the e-Manifest system.
    EPA recognizes that shipments involving ``state only'' wastes and 
the use of the manifest may be particularly complicated for interstate 
waste shipments. In such cases, the waste may, for example, be 
hazardous under state law and subject to the manifest requirement in 
the generator's state, but not regulated as hazardous and thus not 
subject to a manifest requirement in the destination state. In other 
cases, the interstate waste shipment may not be subject to a manifest 
requirement until it enters the destination state. These more complex 
scenarios raise the question of when it is appropriate to track ``state 
only'' waste shipments with the e-Manifest system.
    EPA believes that the definition of ``user of the electronic 
manifest'' and the nature of the e-Manifest system for manifest users 
provide the guidance to answer this question. The e-Manifest system is 
available to track ``state only'' hazardous waste shipments when either 
the generator state or the destination state (or both states) imposes a 
requirement under state law to use the hazardous waste manifest to 
track an off-site shipment of a waste, and all the waste handlers named 
on the manifest elect to use the e-Manifest system. A receiving 
facility in a state that does not require the manifest may receive a 
waste shipment subject to the manifest under the generator state's law. 
In such a case, the new authority of section 2(h) of the e-Manifest Act 
requires the receiving facility to complete the facility portion of the 
applicable manifest, to sign and date the facility certification, and 
to submit to the e-Manifest system a final copy of the manifest for 
data processing. Likewise, in the case of a waste that is not hazardous 
under the law of the generator state, but is a ``state only'' hazardous 
waste subject to the manifest in the receiving state, the e-Manifest 
system will be available to track these waste shipments and the 
receiving facility must close out such manifests through the system as 
required under section 2(h) of the e-Manifest Act. The e-Manifest 
system will be available to track these state-regulated waste 
shipments, if all the waste handlers named on the manifest elect to use 
the system for manifest tracking purposes. Thus, the scope of use for 
the electronic manifest is intended to be just as extensive as the 
scope of use of the current paper forms, with the additional limitation 
that the generator, transporter, and the receiving facility must all 
participate in the use of electronic manifests.
    EPA emphasizes that the term ``user of the electronic manifest'' is 
limited to those members of the regulated community who are required to 
supply or use the manifest in connection with the shipment, 
transportation or receipt of hazardous wastes. The term ``user of the 
electronic manifest'' does not cover federal or state regulators, 
emergency responders, or others who may access the e-Manifest system 
only to access manifests or manifest data supplied to the system by the 
users of the electronic manifest.

B. Which documents can be completed and submitted electronically?

    The electronic documents that can be completed and submitted 
electronically under today's final rule are limited to the standard 
electronic formats adopted by 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

[[Page 7526]]

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\
---------------------------------------------------------------------------

    \6\ DOT was recently directed by statute to conduct a pilot 
program addressing electronic shipping papers (Hazardous Materials 
Transportation Safety Improvement Act of 2012, sec. 33005); at this 
time, it is not clear whether and when this program (HM-Access) will 
be implemented as a paperless requirement. 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.
---------------------------------------------------------------------------

    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 state-regulated or ``state only'' wastes 
that are not federally listed or characteristic hazardous wastes, the 
HMR does not apply. While these state-regulated wastes may be subject 
to a manifest requirement under state law, these wastes are not subject 
to the manifest under the 40 CFR part 262 or equivalent RCRA authorized 
state law counterpart regulations. Therefore, state-regulated or 
``state only'' wastes are not hazardous wastes within the meaning of 
the HMR.
    While the requirements under the HMR (for RCRA hazardous waste) to 
continue to carry a printed copy of the electronic manifest on the 
transport vehicles may appear to frustrate the attainment of a totally 
paperless manifest system, we have strived in this rule to minimize as 
far as possible the requirements for carrying and maintaining paper 
documents. Despite the continuing need to carry this printed copy of 
the electronic manifest, we believe that there will still be 
substantial reductions in paperwork burdens and forms/data processing 
costs for manifest users and regulatory agencies as a result of this 
final action. Moreover, at such time as DOT amends the HMR to authorize 
the use of an electronic shipping document to satisfy the accessibility 
requirement of 49 CFR 177.817(e), the supplying of an acceptable 
electronic shipping document will satisfy this requirement. 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

[[Page 7527]]

regulatory provisions for the electronic manifest is a simplification 
of the standards that will govern the e-Manifest 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 Sec.  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 Sec.  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 Sec.  262.24 of the proposed 
rule. First, the provisions of proposed Sec.  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 Sec.  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 Sec.  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

[[Page 7528]]

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 web-based electronic manifest. These commenters pointed out that a 
web-based approach using XML for manifest data exchanges would be much 
more affordable than EDI. Other commenters suggested that a web-based 
approach using XML would be easier to upgrade with additional features, 
while other commenters suggested that XML had the greatest prospects as 
an electronic manifest format, since XML would likely be the standard 
for the foreseeable future with respect to web-based applications.
    On the other hand, four commenters supported 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 e-Manifest 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 e-Manifest system. It is EPA's current intent to 
develop a first generation e-Manifest 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 e-Manifest 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

[[Page 7529]]

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

[[Page 7530]]

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 e-Manifest system, it is no longer necessary to promulgate 
regulatory security controls in order to assure a level of consistency 
and security among various private systems. Thus, we are not codifying 
the proposed security controls as part of today's final rule. Because 
there will be one national e-Manifest system developed to host the 
transmission of electronic manifests, and the system will be operated 
by 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 well-established 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

[[Page 7531]]

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 PIN-
based 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 (encryption-based) 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 PIN-based system would be sufficient 
and cost-effective for electronic manifest signatures, suggesting 
further that the expense and complexity of both of the proposed 
signature methods were disproportionate to the number of enforcement 
actions that turn on the authenticity of manifest signatures. We also 
received numerous comments from the regulated industry suggesting that 
the digital signature method was too expensive and complex to be 
deployed in the electronic manifest context. By contrast, we received a 
number of comments from industry representatives who suggested that a 
digitized handwritten signature method could be implemented and used 
successfully for the electronic manifest. These commenters offered that 
digitized handwritten signatures provide a practical and cost-effective 
alternative to digital (encryption-based) signatures, and that they 
have been used successfully in commerce for years. Several commenters 
preferred the digitized signature because it best mimics the current 
process for signing paper manifests. In addition, we received several 
industry comments that echoed the view expressed in state-agency 
comments that the electronic manifest did not warrant elaborate 
electronic signature security, with one such commenter suggesting that 
any security burden imposed beyond that associated with the digitized 
signature method would act as a deterrent to the use of the electronic 
system. Finally, we received a comment from an industry trade 
association suggesting that 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, Sec.  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 e-
Manifest 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 technology-
neutral 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 change-
management 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.
---------------------------------------------------------------------------

    \7\ Section 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.
---------------------------------------------------------------------------

    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

[[Page 7532]]

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 e-Manifest 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 Sec.  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 e-
Manifest is readily available to and broadly embraced by the user 
community. Therefore, it is essential that the CROMERR compliant 
electronic signature methods adopted for e-Manifest 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 self-sustaining, 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

[[Page 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.
---------------------------------------------------------------------------

    \8\ While the system would be designed to support both methods, 
it is intended that each e-Manifest signature would only implement 
one or the other of the two methods.
---------------------------------------------------------------------------

    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 e-Manifest 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 
cost-effectiveness 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 e-
Manifest 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 cost-effective 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

[[Page 7534]]

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\
---------------------------------------------------------------------------

    \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.
    \10\ The digitized handwritten signatures should improve 
signature quality by ensuring that a consistent quality signature is 
retained for all collected manifest signatures, regardless of the 
order in which the manifest was signed. Many paper manifest 
signatures today are carbon copy signatures of very uneven quality 
or legibility.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \11\ Moreover, since there is no showing required currently to 
establish that one signing a paper manifest is authorized to sign 
manifests for the entity that he or she represents, this rule does 
not require a separate identity proofing to establish the 
relationship of the owner of an electronic signature device to a 
particular entity.
---------------------------------------------------------------------------

    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 e-Manifest 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:

[[Page 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 peer-reviewed studies which show 
that the technology has been thoroughly tested, that the known or 
potential error rate of the technology has been established and is 
acceptable, and that the technology reliably collects, processes, and 
interprets the forensic data from handwritten digitized signatures; and
     The forensic signature measurements and analyses performed 
by the software, and the comparisons of digitized handwritten 
signatures and exemplars conducted by a trained, professional document 
examiner, will enable a professional document examiner trained in the 
technology to provide expert opinion testimony, with a high degree of 
confidence, that a questioned digitized handwritten signature is or is 
not the authentic signature of the signatory.
    ii. Interim Approach to Implementation. As discussed above, for the 
digitized signature method to be implemented as a fully CROMERR 
compliant and valid electronic signature, there must first be completed 
the peer reviewed studies showing the forensic reliability of this 
signature technology. However, in the event that 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

[[Page 7536]]

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 e-Manifest, as these users believed that PINs or passwords would be 
more cost-effective 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 e-
Manifest system in a manner that is both consistent with the CROMERR 
standards and at a cost that would not discourage use of the system. 
Manifest users have commented that PINs and passwords would be readily 
accepted by many prospective e-Manifest users, and our 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 Sec.  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.
---------------------------------------------------------------------------

    \12\ Section 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).
---------------------------------------------------------------------------

    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 per-manifest 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 cost-sensitive 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 technology-based 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

[[Page 7537]]

signature can be sufficiently strengthened if the signatory 
successfully answers a challenge question from a set of questions for 
which the signatory has provided pre-arranged 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 e-Manifest 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 e-Manifest users, particularly for hazardous waste 
generators. There are about 139,000 RCRA hazardous waste generators 
(and many more state-regulated 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 State-issued 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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.

[[Page 7538]]

    EPA believes that the witnessed signature approach to strengthening 
a PIN/password signature will be most useful for executing the 
electronic signatures of hazardous waste generators. On the other hand, 
transporter and designated facility personnel who interact frequently 
with e-Manifest should have little difficulty recalling their PINs or 
passwords, or supplying the answers to their personal challenge 
questions. Thus, the witnessed signature approach we recommend here 
could be restricted to the strengthening of generator signatures, while 
transporter and designated facility personnel sign electronically with 
their PIN/passwords and respond to their personal question challenges 
for the 2nd authenticating factor.
    When restricted to generator signatures, the witnessed signature 
approach would operate in the following manner. At the time of a 
hazardous waste pick-up by the initial transporter at a generator's 
site, the generator's representative would produce his or her 
government-issued picture ID (e.g., driver's license) to establish his 
or her identity to the transporter representative's satisfaction. The 
transporter's representative would check the license or other 
credential to ascertain that the identity claimed by the generator's 
representative is consistent with the presented credential. The 
generator and the initial transporter would then each sign the e-
Manifest with their respective PINs or passwords in the other's 
presence. When the generator signs the generator's certification on the 
e-Manifest, the generator is merely completing the normal generator's/
offeror's certification statements. When the initial transporter's 
representative signs with his or her PIN/password, the transporter 
representative's PIN/password signature both acknowledges the receipt 
of the hazardous waste from the generator, and certifies to witnessing 
the generator's signature, to checking the generator's identification, 
and to entering the last 5 digits of the generator representative's 
license number or other credential as evidence of the proofing 
ceremony. The generator and transporter each sign the electronic 
manifest once with their respective PINs or passwords, but the 
transporter's PIN/password signature carries the additional 
certification language indicating that the transporter vetted the 
identity of the generator.
    While the above example would restrict the use of the witnessed 
signature approach to generator signatures that are witnessed by 
transporters,\14\ it is conceivable that the method could be used for 
other waste handler signatures as well. For example, the generator 
could similarly certify to witnessing the initial transporter's 
signature, and a transporter delivering hazardous waste to the 
designated facility could witness the signature of the designated 
facility using the same type of credential vetting and certification 
approach described above for the generator's signature. The witness in 
each case shall also enter the last 5 digits of the signatory's 
driver's license number (or other credential number) as a part of the 
witness certification. If the identity claimed by the signer is not 
consistent with the identification credential produced by the signer, 
the witness should not certify to the witnessing of the signature and 
should not participate further in the e-Manifest transaction.
---------------------------------------------------------------------------

    \14\ Whether the witnessed signature approach might be used only 
in connection with generator signatures or used more extensively is 
a system design issue that EPA will determine after consultations 
with stakeholders and the IT contractor(s) developing the system.
---------------------------------------------------------------------------

    To support the witnessed signature approach and its required 
certifications, the e-Manifest system's electronic signature module 
would be designed to prompt witnesses for the certifications and to 
collect the necessary certifications and license (or other credential) 
number data independently of the manifest form elements. The advantage 
to this is that the e-Manifest format would not itself need to be 
revised to accommodate this approach, and the same e-Manifest format 
that is supplied for e-Manifests signed with the digitized signature 
method or other e-signature methods could be used for PIN and password 
signatures.
    EPA generally believes that the witnessed signature approach to 
PIN/password signatures will be more practical for the manifest user 
community to implement in a first generation system than other 
available technology-based second factor approaches that we have 
evaluated. We have also determined this signature method to be CROMERR-
compliant, and we believe that this method can be implemented in a 
manner that is inexpensive and not excessively burdensome for the 
manifest users.
    EPA emphasizes that the electronic signature methods described here 
for the first generation e-Manifest system are not intended to preclude 
consideration of other electronic signature approaches that are CROMERR 
compliant, nor is the description in this preamble of the witnessed 
signature approach intended to rule out other CROMERR compliant 
approaches for implementing a second authentication factor \15\ for the 
PIN or password signatures. The first generation methods described here 
are those for which we now have sufficient information \16\ to enable 
us to conclude that they are consistent with CROMERR and otherwise 
well-suited for the manifest business process.
---------------------------------------------------------------------------

    \15\ As authentication technologies mature and become more 
mainstream or cost-effective, authentication technologies based on 
tokens and biometrics may be found to meet the selection criteria.
    \16\ As discussed previously, we are tentatively concluding that 
the digitized handwritten signature method may be CROMERR-compliant 
and suitable for e-Manifest, but a final evaluation of this method 
will depend on one or more of these products being shown to be 
reliable through peer-reviewed studies.
---------------------------------------------------------------------------

H. Requirements for Obtaining and Using the Electronic Manifest

    Under the May 2001 proposed rule, EPA proposed to modify existing 
Sec.  262.20(a) so that it would present both a paper form option under 
proposed Sec.  262.20(a)(2) and an electronic manifest format option 
under a new provision that we proposed in Sec.  262.20(a)(3). Under 
proposed Sec.  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 Sec.  262.24; 
(2) signed in accordance with the proposed electronic signature 
requirements in proposed Sec.  262.25; and (3) generated and maintained 
on electronic systems which met the proposed security requirements in 
proposed Sec.  262.26. If all of these conditions were met, then 
proposed Sec.  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 Sec.  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, Sec.  262.20(a)(1) imposes a requirement that all off-site 
shipments of hazardous waste \17\ must be

[[Page 7539]]

accompanied by a manifest, which may be satisfied under Sec.  
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 Sec.  
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 Sec.  
262.20(a)(3) of the proposed rule, the final rule requires simply that 
generators must obtain and complete in accordance with Sec.  
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.
---------------------------------------------------------------------------

    \17\ This regulation does not affect or alter existing RCRA 
regulatory exemptions from the manifest requirement, e.g., the 
exemption for conditionally exempt small quantity generators at 40 
CFR 261.5; the exemption for small quantities of hazardous waste 
reclaimed under reclamation agreements per 40 CFR 262.20(e); or the 
exemption for universal waste shipments in 40 CFR Part 273.
---------------------------------------------------------------------------

    Under Sec.  262.20(a)(3) of this final rule, if electronic 
manifests are obtained, completed, and transmitted on the national e-
Manifest system in accordance with this section's requirements, and 
signed electronically using the ``valid and enforceable electronic 
signature'' required under 40 CFR 262.25, then these electronic 
manifests shall be considered the legal equivalent of paper manifests 
signed with conventional ink signatures. Thus, this final rule 
authorizes the use of all electronic manifests that are obtained, 
completed, signed, and transmitted through the national e-Manifest 
system in accordance with the requirements of Sec.  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 Sec.  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 Sec.  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 e-Manifest 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, hand-signed 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 Sec.  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.
---------------------------------------------------------------------------

    \18\ This statement applies in instances where the electronic 
manifest is signed with an electronic signature that has been 
determined to be legally valid and enforceable. As discussed in 
section G.5.ii. of this preamble, if a signature method is used on 
an interim or pilot basis pending testing, a single paper copy of 
the manifest will be required to be carried with the shipment to 
collect the ink signatures of waste handlers, and to be retained by 
designated facilities.
    \19\ This 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.
---------------------------------------------------------------------------

    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 ``e-Manifest 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 e-Manifest system should be eligible for treatment as 
CBI. In the April 18, 2006 public notice and request for comment,

[[Page 7540]]

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 Sec.  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

[[Page 7541]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \21\ Greenberg v. FDA, 775 F.2d 1169.
---------------------------------------------------------------------------

    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 Sec.  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 Sec.  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.

[[Page 7542]]

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 
state-regulated (not RCRA) wastes and the

[[Page 7543]]

disclosure of transporter/customer information.\23\
---------------------------------------------------------------------------

    \23\ Hazardous 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 
Sec.  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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 e-Manifest 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

[[Page 7544]]

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 on-line access to the e-Manifest system. During this period 
of restricted direct, on-line access to manifest data, the manifest 
information in the system will be fully available to regulators and to 
emergency responders. These in process manifests would also be 
available to local governments or police agencies that have been 
delegated inspection or program implementation responsibilities by 
their States. Hazardous waste handlers will also have direct access to 
those manifests on which they appear as the named handlers of waste 
shipments.
    Therefore, this final regulation announces a 90-day period measured 
from the date of receipt of hazardous waste shipments by the designated 
facility during which only regulators, emergency responders, and the 
waste handler entities named on particular manifests will have direct 
on-line access to manifest data. EPA 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 e-Manifest 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 front-end 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 e-
Manifest 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.
---------------------------------------------------------------------------

    \25\ EPA 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.
---------------------------------------------------------------------------

    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

[[Page 7545]]

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 e-Manifest 
system should they find the electronic manifest fees to be 
unreasonable, (4) the elective nature of the electronic system would 
incentivize the IT vendor to develop the best e-Manifest system at the 
lowest cost, and (5) the view that some companies may choose to 
continue to use paper manifests out of concern for information security 
issues and data confidentiality issues with the electronic system. The 
commenters who advocated a transition to mandatory use after two or 
three years supported their position with the comments that a two to 
three year period of optional use would give users time to prepare for 
the electronic system and for the system to prove itself. Such an 
approach would also signal that the program would not require the costs 
and implementation issues from a dual paper and electronic system to be 
borne permanently.
    Among state-agency commenters on the 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 e-Manifest 
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 e-Manifest 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 Sec.  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

[[Page 7546]]

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 ever-increasing 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 opt-out and continue to use the 
paper system as necessary. We have codified the definition of ``user of 
the electronic manifest'' in 40 CFR section 260.10 consistent with the 
definition of ``user'' in the e-Manifest Act, so that it is clear that 
users can choose to use the electronic manifest or opt out and continue 
to use the paper manifest forms.
    While EPA believes that giving users the choice to use the 
electronic manifest format is consistent with the statutory definition 
of ``user'' discussed above, the Agency emphasizes that it is our goal 
to promote the use of electronic manifests by the user community to the 
maximum extent possible. 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,

[[Page 7547]]

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

[[Page 7548]]

would be required to submit to the e-Manifest system its final copy of 
the paper manifests that continue in use after implementation of the e-
Manifest system. In addition, the designated facility would pay an 
associated user fee for the data processing services performed by the 
system. Under this option, generators and transporters would not be 
required to submit their copies of paper manifests to the e-Manifest 
system. However, state-tracking programs that decide to continue to 
collect generator copies of manifests could do so under their state law 
requirements, as this option would only affect the collection of the 
designated facility copies by 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.
---------------------------------------------------------------------------

    \26\ EPA 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.
---------------------------------------------------------------------------

    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 e-Manifest 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 e-Manifest system for data processing 
purposes.
    Under today's regulation, the designated facility must send to the 
e-Manifest system the top copy (Page 1 of the 6-page set) of the paper 
manifest form within 30 days of delivery of the hazardous waste 
shipment. The copy could be mailed to the e-Manifest system, or 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 e-Manifest system operator would also key-in or 
extract the federal- and state-regulated waste data from these copies 
to the e-Manifest system. EPA 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 
e-Manifest 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 e-Manifest 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

[[Page 7549]]

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 e-
Manifest 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 e-Manifest 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 e-Manifest system, but 
would participate in the e-Manifest system through the portable 
technology devices (e.g., a mobile computer) brought to the generator 
sites by a transporter or waste management facility participating in 
the e-Manifest system. In the latter instance, there would in fact be 
participation in the electronic manifest transaction by all the waste 
handlers, but the generators themselves would not need to obtain or use 
their own equipment in order to engage in electronic manifesting. Id. 
at 28273.
    2. Comment Analysis. The proposed rule's discussion of electronic 
manifesting procedures for those cases where not all the waste handlers 
could participate electronically generated several comments from 
members of the regulated community and from state agencies. A commenter 
from the steel industry voiced support for this aspect of the proposal, 
as it would allow steel industry generators and designated facilities 
to begin using electronic manifests promptly, without having to wait 
for transporters to participate. Several other industry commenters 
stated in their comments that 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

[[Page 7550]]

generator to supply sufficient printouts of the electronic manifest for 
all non-participating transporters. We considered specifying in this 
rule detailed procedures calling for the various paper copies to be 
manually signed and dated by the non-participating transporters. These 
procedures would also have required information to be entered on the 
paper copies regarding electronic signatures, including the names of 
the persons signing the manifest electronically, the date of these 
electronic signatures, and the notation ``signed electronically'' in 
the paper copies' signature fields. We considered this approach, 
because we wanted the paper copies to present a complete log of the 
transportation history of the shipment, including the signature 
information, so that the entire record of the waste shipment could be 
preserved by merging the data from paper copies with the electronic 
manifest data for the shipment.
    In the end, however, we decided not to adopt this approach for the 
final rule because we concluded that the various manual processing 
steps that would be necessary to sustain the tracking process would be 
too complex and burdensome to be justified. The manual processing steps 
and their burdens would likely exceed any savings that would arise from 
the shipment being tracked partially with the electronic manifest. In 
order to maintain full accountability for these shipments, it would 
have been necessary to supply another paper copy for the designated 
facility, so that the facility could forward this copy to the e-
Manifest system for data processing purposes. This approach would have 
placed an additional responsibility on the EPA 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 non-
participating waste handlers because we believed that this approach 
would enable many more manifests to be initiated electronically in the 
system and also would enable designated facilities to verify their 
waste receipt data electronically and to transfer the data to 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 pre-printed 
manifest from a registered printer, or, reproduce sufficient copies of 
the printed manifest carried on the transport vehicle to comply with 
the DOT's HMR. If the electronic manifest becomes unavailable before 
the waste is delivered by the generator to the initial transporter, 
then the simple back-up solution for the generator is to obtain and 
complete the manifest using a pre-printed manifest obtained from a 
registered manifest printer. The back-up paper manifest is then 
completed and used by the generator and other handlers in the same 
manner as any other paper manifest. This requirement is set out at 
Sec.  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 Sec.  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 e-Manifest system by the designated 
facility for data processing. The transporter must also make notations 
in Item 14 (the Special Handling or Additional Information Item) 
indicating that the copies are a replacement manifest for an electronic 
manifest that could not be completed and the tracking number of the 
electronic manifest that the replacement manifest replaces.
    EPA recognizes that the transporter responsible for producing these 
copies may not be able to reproduce the paper copies at the very moment 
that he or she is aware that the electronic manifest is no longer 
available for the shipment, but the copies must be produced before the 
waste handler obtains the signature from the next transporter or the 
designated facility to which the waste shipment is being delivered.
    From the point at which the electronic manifest is no longer 
available for tracking the waste shipment, the paper replacement 
manifest will be completed and managed just as it would be completed 
and managed with the standard paper manifest form. However, as the 
printed copies will lack carbon paper and thus will not enable printed 
impressions to be passed through to all remaining copies, the 
transporters and owner/operators entering signatures or other 
information on the printed copies will need to sign and enter their 
other information individually on all printed manifest copies in their 
possession. As

[[Page 7551]]

the custody of the waste is transferred to subsequent waste handlers, 
the subsequent handler will sign all the printed copies to acknowledge 
receipt from the delivering handler, and the delivering handler will 
keep one such signed copy for its records.
    At 40 CFR 264.72(g) and 265.72(g), we have promulgated the special 
procedures applicable to designated facilities that receive replacement 
manifests that accompany hazardous waste deliveries. In such cases, the 
designated facility must likewise sign the remaining printed copies at 
the time the waste shipment is ultimately delivered to the designated 
facility. Upon signing the remaining copies to acknowledge the receipt 
of the waste (or to note discrepancies), the designated facility must 
provide one copy to the delivering transporter, must keep one copy for 
its records, and must, within 30 days of receipt of the waste, send one 
copy to the generator and submit an additional copy to the e-Manifest 
system for data processing.
    EPA believes that these procedures for replacement manifests will 
be sufficient for completing the tracking of waste shipments for those 
irregular and infrequent circumstances where the manifest is initiated 
electronically but cannot be completed electronically.

M. Manifest Corrections

    It is likely that errors will be made on manifests and continuation 
sheets as there will be up to 5.6 million manifests a year with up to 
278 data fields per shipment (manifest plus continuation sheet). The 
types of errors that occur most frequently (based on experience with 
the paper manifest) include nonexistent EPA ID numbers because of 
transposed numbers, incorrect dates (past or future), missing required 
data fields, such as quantity, units of measure, or waste codes (state 
or RCRA), reported units of measure that are not appropriate for the 
waste stream, and errors in the proper shipping name.
    We expect that the number of errors requiring correction will be 
much less when the e-Manifest format is used, as the online system will 
provide pre-shipment verification for accuracy and completeness of all 
required fields. We also intend to include in the system features such 
as drop down menus to aid in the selection of data items, the ability 
to save and revise previously completed manifests, and the ability to 
pre-populate manifests based on saved templates and user profiles. 
While the number of errors should be reduced with these electronic 
aids, we will still need to design an e-Manifest system with the 
capability for generators, transporters, or designated facilities to 
make those corrections that were not prevented by the pre-shipment 
verification process or the other electronic aids. This process may 
require correcting each manifest separately or could allow block 
corrections of a set of manifests with the same error in waste code, 
EPA ID number, or other like field. 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 e-Manifest system in 
either image or paper form. These paper format manifests will not have 
any pre-creation edits and may have more errors that need correction. 
States that currently collect paper manifests and enter the data from 
these forms into electronic databases have experienced high levels of 
manifest errors. 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 
e-Manifest system through a performance-based 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.
---------------------------------------------------------------------------

    \27\ The 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.
---------------------------------------------------------------------------

    While the details of the e-Manifest system design and development 
will be fleshed out during the system planning and acquisition phases, 
we intend that the e-Manifest system will support the following high-
level functions:
    1. Electronic Manifest Creation:
     Support for all manifest data elements,
     Support for several user interfaces, including mobile 
device interface,
     Support for templates or other manifest creation short-
cuts, and
     Support for edit checks, pull down lists, and other aids 
to improve data quality.
    2. Manifest Format and Communications Standards:
     Data exchange standard (e.g., XML schema or equivalent) to 
enable data exchanges with industry and state data management systems, 
and manipulations of data,
     Presentation standard to enable e-Manifest display that is 
faithful to appearance of the paper form,
     Standardized communications protocols for transmissions 
between handler devices and system, and
     Data exchange between e-Manifest and the railroad 
industry's electronic waybill system, to facilitate shipments of 
hazardous waste by rail.
    3. Document and work flow management:
     Work flow must support for ``chain of custody'' tracking 
of each hazardous waste shipment,

[[Page 7552]]

     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.
---------------------------------------------------------------------------

    \28\ EPA 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.
---------------------------------------------------------------------------

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 e-Manifest system that will be accessed through the Agency's 
CDX or an alternative hosting portal. After the vendor develops the e-
Manifest system, it first must be evaluated and accredited for 
compliance with applicable internal and federal IT policies and 
standards on information security and privacy, and tested for 
consistent operation with system performance requirements before 
beginning its production operation. Therefore, once the evaluation 
process is complete, 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 e-Manifest 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 e-Manifest 
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 Sec.  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

[[Page 7553]]

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\
---------------------------------------------------------------------------

    \29\ EPA'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.
---------------------------------------------------------------------------

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 e-Manifest 
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 e-
Manifest Act provides that EPA shall carry out the federal electronic 
manifest regulations promulgated under the e-Manifest 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

[[Page 7554]]

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 e-Manifest 
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 e-Manifest 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, Sec.  
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 Sec.  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 sub-paragraphs 
(f)(3)(i) and (f)(3)(ii). Finally, paragraph (h) of Sec.  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 Sec.  
271.10(h)(2), which currently provide that either the generator state 
or the consignment state

[[Page 7555]]

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 Sec.  
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 Sec.  271.12(h), 
which suggests that electronic manifesting would be subject to distinct 
requirements in paragraph (i) of Sec.  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 Sec.  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 Sec.  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 e-Manifest 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 e-
Manifest 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.
---------------------------------------------------------------------------

    \30\ This is likely a conservative estimate, as it does not 
include the additional cost savings likely to result from the 
greater efficiencies with which existing data systems operated by 
industry users and states will be able to exchange data with the e-
Manifest system, relative to manually keying data from paper forms.
---------------------------------------------------------------------------

    We would note that part of the reason for establishing an 
electronic tracking system for hazardous waste shipments

[[Page 7556]]

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 e-Manifest 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 e-Manifest 
system.

E. Executive Order 13132: Federalism

    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Thus, Executive Order 13132 does 
not apply to this rule.

F. Executive Order 13175: Consultation With Tribal Governments

    This final rule does not have tribal implications, as specified in 
Executive Order 13175. It does not impose any new requirements on 
tribal officials nor does it impose substantial direct compliance costs 
on them. This rule does not create a mandate for tribal governments, 
nor does it impose any enforceable duties on these entities. Thus, 
Executive Order 13175 does not apply to this rule.

[[Page 7557]]

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

0
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

0
2. Section 260.2 is revised to read as follows:

Sec.  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 Sec.  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 Sec.  262.53(a) and Sec.  
262.83 that is submitted in a notification of intent to export a 
hazardous waste will be provided to the

[[Page 7558]]

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 Sec.  
262.20(a)(3) of this chapter.
    (2) EPA will make any electronic manifest that is prepared and used 
in accordance with Sec.  262.20(a)(3), or any paper manifest that is 
submitted to the system under Sec. Sec.  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

0
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:

Sec.  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 e-Manifest 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 Sec.  264.71(a)(2)(v) or Sec.  
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

0
4. The authority citation for part 262 continues to read as follows:

    Authority:  42 U.S.C. 6906, 6912, 6922--6925, 6937, and 6938.

0
5. In Sec.  262.20, add paragraph (a)(3) to read as follows:

Sec.  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 Sec.  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.
* * * * *

0
6. Add Sec. Sec.  262.24 and 262.25 to subpart B to read as follows:

Sec.  262.24  Use of the electronic manifest.

    (a) Legal equivalence to paper manifests. Electronic manifests that 
are obtained, completed, and transmitted in accordance with Sec.  
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

[[Page 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 Sec.  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.

Sec.  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

0
7. The authority citation for part 263 continues to read as follows:

    Authority:  42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

0
8. Section 263.20 is amended by revising paragraph (a) to read as 
follows:

Sec.  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 Sec.  262.23, or is 
provided with an electronic manifest that is obtained, completed, and 
transmitted in accordance with Sec.  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 Sec.  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.

[[Page 7560]]

    (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.
* * * * *

0
9. Add Sec.  263.25 to subpart B to read as follows:

Sec.  263.25  Electronic manifest signatures.

    (a) Electronic manifest signatures shall meet the criteria 
described in Sec.  262.25 of this chapter.
    (b) [Reserved]

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
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

0
11. Section 264.71 is amended by revising paragraph (a)(2), and by 
adding paragraphs (f), (g), (h), (i), (j), and (k) to read as follows:

264.71  Use of manifest system.

    (a) * * *
    (2) If the facility receives a hazardous waste shipment accompanied 
by a manifest, the owner, operator, or his agent must:
    (i) Sign and date, by hand, each copy of the manifest;
    (ii) Note any discrepancies (as defined in Sec.  264.72(a)) on each 
copy of the manifest;
    (iii) Immediately give the transporter at least one copy of the 
manifest;
    (iv) Within 30 days of delivery, send a copy (Page 3) of the 
manifest to the generator,
    (v) Within 30 days of delivery, send the top copy (Page 1) of the 
Manifest to the e-Manifest system for purposes of data entry and 
processing. In lieu of mailing this paper copy to EPA, the owner or 
operator may transmit to the EPA system an image file of Page 1 of the 
manifest, or both a data string file and the image file corresponding 
to Page 1 of the manifest. Any data or image files transmitted to EPA 
under this paragraph must be submitted in data file and image file 
formats that are acceptable to EPA and that are supported by EPA's 
electronic reporting requirements and by the electronic manifest 
system.
    (vi) Retain at the facility a copy of each manifest for at least 
three years from the date of delivery.
* * * * *
    (f) Legal equivalence to paper manifests. Electronic manifests that 
are obtained, completed, and transmitted in accordance with Sec.  
262.20(a)(3) of this chapter, and used in accordance with this section 
in lieu of the paper manifest form are the legal equivalent of paper 
manifest forms bearing handwritten signatures, and satisfy for all 
purposes any requirement in these regulations to obtain, complete, 
sign, provide, use, or retain a manifest.
    (1) Any requirement in these regulations for the owner or operator 
of a facility to sign a manifest or manifest certification by hand, or 
to obtain a handwritten signature, is satisfied by signing with or 
obtaining a valid and enforceable electronic signature within the 
meaning of 40 CFR 262.25.
    (2) Any requirement in these regulations to give, provide, send, 
forward, or to return to another person a copy of the manifest is 
satisfied when a copy of an electronic manifest is transmitted to the 
other person.
    (3) Any requirement in these regulations for a manifest to 
accompany a hazardous waste shipment is satisfied when a copy of an 
electronic manifest is accessible during transportation and forwarded 
to the person or persons who are scheduled to receive delivery of the 
waste shipment.
    (4) Any requirement in these regulations for an owner or operator 
to keep or retain a copy of each manifest is satisfied by the retention 
of the facility's electronic manifest copies in its account on the e-
Manifest system, provided that such copies are readily available for 
viewing and production if

[[Page 7561]]

requested by any EPA or authorized state inspector.
    (5) No owner or operator may be held liable for the inability to 
produce an electronic manifest for inspection under this section if the 
owner or operator can demonstrate that the inability to produce the 
electronic manifest is due exclusively to a technical difficulty with 
the electronic manifest system for which the owner or operator bears no 
responsibility.
    (g) An owner or operator may participate in the electronic manifest 
system either by accessing the electronic manifest system from the 
owner's or operator's electronic equipment, or by accessing the 
electronic manifest system from portable equipment brought to the 
owner's or operator's site by the transporter who delivers the waste 
shipment to the facility.
    (h) Special procedures applicable to replacement manifests. If a 
facility receives hazardous waste that is accompanied by a paper 
replacement manifest for a manifest that was originated electronically, 
the following procedures apply to the delivery of the hazardous waste 
by the final transporter:
    (1) Upon delivery of the hazardous waste to the designated 
facility, the owner or operator must sign and date each copy of the 
paper replacement manifest by hand in Item 20 (Designated Facility 
Certification of Receipt) and note any discrepancies in Item 18 
(Discrepancy Indication Space) of the paper replacement manifest,
    (2) The owner or operator of the facility must give back to the 
final transporter one copy of the paper replacement manifest,
    (3) Within 30 days of delivery of the waste to the designated 
facility, the owner or operator of the facility must send one signed 
and dated copy of the paper replacement manifest to the generator, and 
send an additional signed and dated copy of the paper replacement 
manifest to the electronic manifest system, and
    (4) The owner or operator of the facility must retain at the 
facility one copy of the paper replacement manifest for at least three 
years from the date of delivery.
    (i) Special procedures applicable to electronic signature methods 
undergoing tests. If an owner or operator using an electronic manifest 
signs this manifest electronically using an electronic signature method 
which is undergoing pilot or demonstration tests aimed at demonstrating 
the practicality or legal dependability of the signature method, then 
the owner or operator shall also sign with an ink signature the 
facility's certification of receipt or discrepancies on the printed 
copy of the manifest provided by the transporter. Upon executing its 
ink signature on this printed copy, the owner or operator shall retain 
this original copy among its records for at least 3 years from the date 
of delivery of the waste.
    (j) Imposition of user fee for electronic manifest use. An owner or 
operator who is a user of the electronic manifest format may be 
assessed a user fee by EPA for the origination or processing of each 
electronic manifest. An owner or operator may also be assessed a user 
fee by EPA for the collection and processing of paper manifest copies 
that owners or operators must submit to the electronic manifest system 
operator under Sec.  264.71(a)(2)(v). EPA shall maintain and update 
from time-to-time the current schedule of electronic manifest system 
user fees, which shall be determined based on current and projected 
system costs and level of use of the electronic manifest system. The 
current schedule of electronic manifest user fees shall be published as 
an appendix to part 262 of this chapter.
    (k) Electronic manifest signatures. Electronic manifest signatures 
shall meet the criteria described in Sec.  262.25 of this chapter.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
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

0
13. Section 265.71 is amended by revising paragraph (a)(2), and by 
adding paragraphs (f), (g), (h), (i), (j), and (k) to read as follows:

Sec.  265.71  Use of manifest system.

* * * * *
    (a) * * *
    (2) If the facility receives a hazardous waste shipment accompanied 
by a manifest, the owner, operator, or his agent must:
    (i) Sign and date, by hand, each copy of the manifest;
    (ii) Note any discrepancies (as defined in Sec.  264.72(a) of this 
chapter) on each copy of the manifest;
    (iii) Immediately give the transporter at least one copy of the 
manifest;
    (iv)Within 30 days of delivery, send a copy (Page 3) of the 
manifest to the generator,
    (v) Within 30 days of delivery, send the top copy (Page 1) of the 
Manifest to the electronic manifest system for purposes of data entry 
and processing. In lieu of mailing this paper copy to the electronic 
manifest system operator, the owner or operator may transmit to the 
system operator an image file of Page 1 of the manifest, or both a data 
string file and the image file corresponding to Page 1 of the manifest. 
Any data or image files transmitted to EPA under this paragraph must be 
submitted in data file and image file formats that are acceptable to 
EPA and that are supported by EPA's electronic reporting requirements 
and by the electronic manifest system.
    (vi) Retain at the facility a copy of each manifest for at least 
three years from the date of delivery.
* * * * *
    (f) Legal equivalence to paper manifests. Electronic manifests that 
are obtained, completed, and transmitted in accordance with Sec.  
262.20(a)(3) of this chapter, and used in accordance with this section 
in lieu of the paper manifest form are the legal equivalent of paper 
manifest forms bearing handwritten signatures, and satisfy for all 
purposes any requirement in these regulations to obtain, complete, 
sign, provide, use, or retain a manifest.
    (1) Any requirement in these regulations for the owner or operator 
of a facility to sign a manifest or manifest certification by hand, or 
to obtain a handwritten signature, is satisfied by signing with or 
obtaining a valid and enforceable electronic signature within the 
meaning of 40 CFR 262.25.
    (2) Any requirement in these regulations to give, provide, send, 
forward, or to return to another person a copy of the manifest is 
satisfied when a copy of an electronic manifest is transmitted to the 
other person.
    (3) Any requirement in these regulations for a manifest to 
accompany a hazardous waste shipment is satisfied when a copy of an 
electronic manifest is accessible during transportation and forwarded 
to the person or persons who are scheduled to receive delivery of the 
hazardous waste shipment.
    (4) Any requirement in these regulations for an owner or operator 
to keep or retain a copy of each manifest is satisfied by the retention 
of the facility's electronic manifest copies in its account on the e-
Manifest system, provided that such copies are readily available for 
viewing and production if requested by any EPA or authorized state 
inspector.

[[Page 7562]]

    (5) No owner or operator may be held liable for the inability to 
produce an electronic manifest for inspection under this section if the 
owner or operator can demonstrate that the inability to produce the 
electronic manifest is due exclusively to a technical difficulty with 
the EPA system for which the owner or operator bears no responsibility.
    (g) An owner or operator may participate in the electronic manifest 
system either by accessing the electronic manifest system from the 
owner's or operator's electronic equipment, or by accessing the 
electronic manifest system from portable equipment brought to the 
owner's or operator's site by the transporter who delivers the waste 
shipment to the facility.
    (h) Special procedures applicable to replacement manifests. If a 
facility receives hazardous waste that is accompanied by a paper 
replacement manifest for a manifest that was originated electronically, 
the following procedures apply to the delivery of the hazardous waste 
by the final transporter:
    (1) Upon delivery of the hazardous waste to the designated 
facility, the owner or operator must sign and date each copy of the 
paper replacement manifest by hand in Item 20 (Designated Facility 
Certification of Receipt) and note any discrepancies in Item 18 
(Discrepancy Indication Space) of the replacement manifest,
    (2) The owner or operator of the facility must give back to the 
final transporter one copy of the paper replacement manifest,
    (3) Within 30 days of delivery of the hazardous waste to the 
designated facility, the owner or operator of the facility must send 
one signed and dated copy of the paper replacement manifest to the 
generator, and send an additional signed and dated copy of the paper 
replacement manifest to the EPA e-Manifest system, and
    (4) The owner or operator of the facility must retain at the 
facility one copy of the paper replacement manifest for at least three 
years from the date of delivery.
    (i) Special procedures applicable to electronic signature methods 
undergoing tests. If an owner or operator using an electronic manifest 
signs this manifest electronically using an electronic signature method 
which is undergoing pilot or demonstration tests aimed at demonstrating 
the practicality or legal dependability of the signature method, then 
the owner or operator shall also sign with an ink signature the 
facility's certification of receipt or discrepancies on the printed 
copy of the manifest provided by the transporter. Upon executing its 
ink signature on this printed copy, the owner or operator shall retain 
this original copy among its records for at least 3 years from the date 
of delivery of the waste.
    (j) Imposition of user fee for electronic manifest use. An owner or 
operator who is a user of the electronic manifest format may be 
assessed a user fee by EPA for the origination or processing of each 
electronic manifest. An owner or operator may also be assessed a user 
fee by EPA for the collection and processing of paper manifest copies 
that owners or operators must submit to the electronic manifest system 
operator under Sec.  265.71(a)(2)(v). EPA shall maintain and update 
from time-to-time the current schedule of electronic manifest system 
user fees, which shall be determined based on current and projected 
system costs and level of use of the electronic manifest system. The 
current schedule of electronic manifest user fees shall be published as 
an appendix to part 262 of this chapter.
    (k) Electronic manifest signatures. (1) Electronic manifest 
signatures shall meet the criteria described in Sec.  262.25 of this 
chapter.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

0
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

0
15. Section 271.3 is amended by revising paragraph (b) introductory 
text, and adding paragraph (b)(4) to read as follows:

Sec.  271.3  Availability of final authorization.

* * * * *
    (b) States approved under this subpart are authorized to administer 
and enforce their hazardous waste program in lieu of the Federal 
program, except as provided below:
* * * * *
    (4) Any requirement applicable to the content or use of electronic 
manifests, including electronic signature requirements, and imposed 
under the authority of the Hazardous Waste Electronic Manifest 
Establishment Act:
    (i) Shall take effect in each State having a finally authorized 
State program on the same date as such requirement takes effect in 
other States;
    (ii) Shall supersede any less stringent or inconsistent provision 
of a State program, and
    (iii) Shall be carried out by the Administrator in an authorized 
state except where, pursuant to section 3006(b) of RCRA, the State has 
received final authorization to carry out the requirement in lieu of 
the Administrator.
* * * * *

0
16. Section 271.4 is amended by revising paragraph (c) to read as 
follows:

Sec.  271.4  Consistency.

* * * * *
    (c) If the state manifest system does not meet the requirements of 
this part, the state program shall be deemed inconsistent. The state 
manifest system must further allow the use and recognize the validity 
of electronic manifests as described in Sec.  260.10 of this chapter.

0
17. Section 271.10 is amended by revising paragraphs (f)(1), (f)(3), 
and the introductory text to paragraph (h) to read as follows:

Sec.  271.10  Requirements for generators of hazardous waste.

* * * * *
    (f) * * *
    (1) Use a manifest system that ensures that interstate and 
intrastate shipments of hazardous waste are designated for delivery 
and, in the case of intrastate shipments, are delivered to facilities 
that are authorized to operate under an approved state program or the 
federal program. The manifest system must require the use of the paper 
or electronic manifest formats as required by Sec.  262.20(a) of this 
chapter. No other manifest form, electronic manifest format, shipping 
paper, or information other than that required by federal requirements, 
may be required by the state to travel with the shipment, or to be 
transmitted electronically, as a means to track the transportation and 
delivery of hazardous waste shipments. No other electronic signature 
other than that required by the federal electronic manifest 
requirements may be required by a state to be executed in connection 
with the signing of an electronic manifest.
* * * * *
    (3) Ensure that all wastes offered for transportation are 
accompanied by a manifest form, or are tracked with an electronic 
manifest, except:
    (i) Shipments subject to 40 CFR 262.20(e) or (f);
    (ii) Shipments by rail or water, as specified in 40 CFR 262.23(c) 
and (d).
* * * * *
    (h) The state must follow the federal manifest format for the paper 
manifest forms (EPA Forms 8700-22 and 8700-

[[Page 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 Sec.  260.10 of this 
chapter.
* * * * *

0
18. Section 271.11 is amended by revising paragraph (c)(1) to read as 
follows:

Sec.  271.11  Requirements for transporters of hazardous wastes.

* * * * *
    (c)(1) The state must require the transporter to carry the manifest 
forms (EPA Forms 8700-22 and 8700-22A) during transport, or, where the 
electronic manifest is used and the 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
```