28240 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 260, 261, 262, 263, 264,

265, 271

[FRL–6932–4]

RIN 2050–AE21

Hazardous Waste Management

System; Modification of the Hazardous

Waste Manifest System

AGENCY: Environmental Protection

Agency.

ACTION: Proposed rule.

SUMMARY: Today, the Environmental

Protection Agency (EPA) proposes to

revise the Uniform Hazardous Waste

Manifest regulations and the manifest

form used to track hazardous waste from

a generator’s site to its site of ultimate

disposition.

EPA proposes three major revisions to

the manifest system: First, EPA

proposes to further standardize the

content and appearance of the current

manifest form (8700–22 and 22a), to

make the form available from a greater

number of sources. Second, EPA

proposes manifest tracking procedures

for the follow-up manifesting of TSDFrejected RCRA hazardous waste

shipment loads, and follow-on

shipments of non-empty waste

containers containing waste residues.

Lastly, EPA proposes giving waste

handlers required to use the form the

option to complete, send, and store the

manifest information electronically. For

waste handlers choosing this option, the

proposed rule would require the use of

a standardized electronic data

interchange (EDI) format that facilitates

the exchange of data between waste

handlers, the use of digital signature

technology to sign the manifest, and the

use of a standard set of computer

security standards for the transmission

and storage of manifest data.

EPA proposes these changes to reduce

paperwork burden related to the

hazardous waste manifest provisions,

and in response to many requests for a

streamlined and up-to-date hazardous

waste tracking system. If finalized, EPA

also expects these proposed changes to

improve the ‘‘cradle-to-grave’’

hazardous waste tracking system and to

ensure that waste reaches its destination

without causing harm to human health

or the environment.

DATES: Written comments on this

proposed rule must be submitted on or

before August 20, 2001.

ADDRESSES: Commenters must send an

original and two copies of their

comments referencing docket number

F–2000–UWMP–FFFFF to: RCRA

Docket Information Center, Office of

Solid Waste (5305W), U.S.

Environmental Protection Agency

Headquarters (EPA, HQ), Ariel Rios

Building, 1200 Pennsylvania Ave., NW.,

Washington, DC 20460. Hand deliveries

of comments should be made to the

Arlington, VA, address below.

Comments may also be submitted

electronically to: rcra-docket@epa.gov.

Comments in electronic format should

also be identified by the docket number

F–2000–UWMP–FFFFF. All electronic

comments must be submitted as an

ASCII file avoiding the use of special

characters and any form of encryption.

Commenters should not submit

electronically any confidential business

information (CBI). An original and two

copies of CBI must be submitted under

separate cover to: RCRA CBI Document

Control Officer, Office of Solid Waste

(5305W), U.S. EPA, Ariel Rios Building,

1200 Pennsylvania Ave., NW.,

Washington, DC 20460. Public

comments and supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

Crystal Gateway One, First Floor, 1235

Jefferson Davis Highway, Arlington, VA

22202. The RIC is open from 9 a.m. to

4 p.m., Monday through Friday,

excluding federal holidays. To review

docket materials, it is recommended

that the public make an appointment by

calling (703) 603–9230. The public may

copy a maximum of 100 pages from any

regulatory document at no cost.

Additional copies cost $0.15 per page.

The index and some supporting

materials are available electronically.

See the Supplementary Information

section for information on accessing

them.

FOR FURTHER INFORMATION CONTACT: For

general information, contact the RCRA

Hotline at (800) 424–9346 or TDD (800)

553–7672 (hearing impaired). In the

Washington, DC, metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact Richard Lashier (5304W), Office

of Solid Waste, U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460, (703) 308–8796,

lashier.rich@epa.gov.

SUPPLEMENTARY INFORMATION:

Internet Availability

This rule is available on the Internet.

Using a World Wide Web (WWW)

browser, type http://www.epa.gov/

epaoswer/hazwaste/gener/manifest/

index.htm

The official record for this action is in

a paper format.

Outline

I. Authority

II. Request for Comments

III. Background

A. History of manifest system

B. Problems Associated with the Uniform

Manifest Form

1. Variability

2. State Difficulties

C. Efforts to Improve the Hazardous Waste

Manifest System

D. To whom would these new regulations

apply?

E. How much burden and cost reduction does

EPA expect from the proposed manifest

form revisions?

F. Effective Date of Final Rule

IV. The Revised Manifest Form

A. Manifest Form Acquisition

1. How is EPA changing the way the

manifest forms are acquired?

2. Why is EPA proposing this change?

3. How much burden reduction does EPA

expect from the proposed manifest form

revisions?

4. Where would a waste handler get paper

manifest forms?

5. Must a generator still contact the state?

6. What special requirements would apply

to printers of the universal manifest?

7. What is the naming convention for the

different copies of the manifest?

8. How would the acquisition regulation

change?

9. How would manifest tracking numbers

be changed by the proposal?

10. Could States still require use of only

their manifests?

11. Request for comments

B. International Shipments

1. What is EPA proposing with respect to

manifest for imports and exports?

2. Why is EPA proposing this change?

3. How would the manifest and the

regulations change?

C. Bulk Packaging

1. How is EPA changing its regulations

related to bulk containers?

2. Why is EPA changing its rules related to

bulk packaging?

3. How would this affect me?

4. How would the regulations change?

D. Use of Fractions

1. What is EPA changing with respect to

the use of fractions in the Quantity

Description on the Manifest?

2. Why is this clarification necessary?

3. What would change?

E. Emergency Response Phone Number

1. What is EPA proposing related to the

Emergency Response Phone Numbers on

the Manifest?

2. Why is EPA proposing these changes?

3. How would this change affect the

regulations?

F. Generator Certification

1. How would the generator certification

statements on the manifest be modified?

2. What are the current requirements to the

generator certification?

3. How would EPA modify the language of

the shipper’s certification?

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28241

4. How would EPA change the appearance

of the waste minimization certification

statement?

5. Why is the Agency Proposing this

Change to the appearance of the waste

minimization certification statement?

G. Elimination of Certain State Optional

Boxes

1. Why is EPA Proposing to Reduce the

Number of State Optional Boxes?

2. Which boxes would be eliminated?

3. Why is EPA proposing to remove each

of these boxes?

4. Why is EPA proposing to amend items

15 & J of the old form?

5. What regulations would be affected by

reducing the number of state optional

boxes and combining Items J and 15 to

create new Item 14?

6. EPA invites comment on today’s

proposal to reduce the number of state

optional fields on the manifest.

H. Block K Coding System

1. How would the requirements for the

codes used in Block K (Handling Codes)

change?

2. What are the Biennial Report system

type codes EPA proposes to use?

3. What are the problems with the current

coding systems used to complete Block

K?

4. How can the Biennial Report system

type codes help resolve the problems?

5. Where would I find a list of codes to be

used in Block B?

6. Who would be affected by the proposal

to change Block K to Block B?

7. How would Block B be filled out?

8. How would the regulations change?

9. EPA invites comment on today’s

proposal and also welcomes new ideas

for manifest and System Type Code

Burden Reduction

I. Block I Waste Code System

1. How would the requirements for the

codes used in Block I change?

2. What is the problem with current Block

I reporting procedures?

3. Who would be affected by this proposal?

4. How would Block A be filled out?

5. How would the regulations change?

6. EPA invites comment on the following

questions related to the proposed

changes to Block A

V. Unmanifested Waste Reporting

1. How is EPA changing the way TSDFs

Report unmanifested waste?

2. What is unmanifested waste?

3. What is the problem with the current

requirements for unmanifested waste

reporting?

4. How do the regulations for the

unmanifested waste, manifest

discrepancies, and exception reporting

compare?

VI. Residues and Rejected Loads: How Must

These Shipments be Manifested?

1. What are residues and rejected loads?

2. What is EPA proposing related to

residues and rejected loads?

3. To whom do these new requirements

apply?

4. Where would the proposed requirements

for tracking rejected wastes and residues

be codified?

5. Why is EPA proposing these changes?

6. How long does the TSDF have to accept

or reject the hazardous waste shipment?

7. Who is responsible for deciding where

to send a residue or load rejected by the

TSDF?

8. Must TSDFs who reject waste or who

have a regulated residue prepare a new

manifest for the shipment to the

alternative facility?

9. Whose facility information would go in

the ‘‘generator’’ block of the manifest?

10. What would you be required to do

under the new regulations?

11. What conditions would apply to a

rejected waste or container residue

shipment once the generator receives it

back from the TSDF?

12. On what issues would EPA like to

receive comments?

VII. Automation of the Manifest System

A. Introduction

1. Summary of today’s electronic manifest

proposal

2. Why is EPA proposing these changes?

3. Who would be affected by these

changes?

4. What manifest automation is already

occurring?

5. How much reduction in burden and cost

would be achieved by automation?

6. What other benefits would result from

an electronic manifest system?

7. What are the concerns associated with

automated systems?

a. Inadvertent or deliberate corruption of

records

b. Unauthorized access to systems or data

c. Limited human involvement and speed

with which transactions are executed

d. Natural disasters and systems failures

e. Software defects and interoperability

issues

B. EPA’s current electronic reporting policy

1. What is EPA’s current electronic

reporting policy?

2. What is Electronic Data Interchange

(EDI)?

3. How does EDI work?

4. Why would EDI be suited to an

automated manifest system?

5. Would a Terms and Conditions

Agreement be required?

6. What alternatives to traditional EDI is

EPA considering?

7. What are the Manifest Automation

Pilots?

C. Overview of manifest automation proposal

1. What is included in today’s proposal on

the electronic manifest?

2. Is electronic manifesting mandatory for

waste handlers?

3. Must authorized State programs adopt

electronic manifesting?

4. What happens if the transporters of my

hazardous waste don’t automate?

5. What happens if the generator is not able

to prepare an electronic manifest?

6. Where would the new requirements for

automated manifesting be codified?

D. What impediments to automation would

today’s proposal remove?

1. Specific paper form designations

2. ‘‘By-hand’’ signature requirements

3. Physical transmission of manifests

4. Electronic storage of manifest copies

E. What standard electronic formats would

today’s proposal require?

1. Overview

2. Proposed EDI format

3. Proposed Internet Forms Format

a. Background

b. What is Extensible Markup Language

(XML)?

4. What comments would be helpful to

EPA?

a. Are the proposed EDI transactions sets

appropriate?

b. Is an XML approach feasible?

c. Are there alternative formats that EPA

should consider?

d. Should EPA address internet EDI

Distinctly?

F. What electronic record system controls

and procedures would this proposal

require?

1. Validation of system performance and

training

2. The ability to generate accurate and

complete records available for inspection

3. The ability to protect records

4. The ability to limit system access and

conduct authority checks

5. Use of secure audit trails

6. Software-based work flow controls and

operational system checks

7. Software-based data presentation

features and signature prompts

8. Full interoperability of system software

9. Controls over system documentation

10. Policies holding individuals

accountable

11. Other system requirements

G. EPA’s Proposed Electronic Signature

Standard

1. Why are signatures important to the

manifest?

2. What are the concerns with electronic

signatures?

3. How does today’s proposal address

electronic signatures?

4. What is a ‘digital signature’?

5. How do digital signatures work?

6. What digital signatures algorithms and

key lengths are acceptable?

7. Is digital signature alone sufficient to

identify individual signers?

8. How would today’s proposal deal with

the security of private keys?

9. Why is a ‘‘trusted third party’’ necessary

for digital signatures?

10. What digital certificates would be

required under today’s proposal?

11. What is a Public Key Infrastructure

(PKI)?

12. What PKI options are being considered

for the manifest?

A. Centralized PKI for Environmental

Programs

B. Decentralized Approach to PKI

C. Hybrid Option

13. Proposed ‘‘secure digitized signature’’

method

14. Request for comments on proposed

signature methods

H. Preparer Signature Proposal

1. What is a ‘preparer signature’?

2. Why is EPA proposing to allow

preparers to sign electronic manifests for

generators?

3. How would the preparer signature

feature work?

28242 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

4. How would a preparer-signed electronic

manifest be closed out?

5. Request for comments

I. Third Party Storage of Manifest Records

1. What does EPA mean by third-party

storage?

2. What are the proposed conditions on

third-party storage?

3. Request for comments

VIII. Related Acts of Congress, Executive

Orders, and Agency Initiatives

A. Regulatory Impact Analysis Pursuant to

Executive Order 12866

B. Regulatory Flexibility Analysis

C. Environmental Justice—Applicability of

Executive Order 12898

D. Protection of Children—Applicability of

Executive Order 12045

E. National Technology Transfer and

Advancement Act

F. Unfunded Mandates Reform Act

G. Paperwork Reduction Act

H. Federalism—Applicability of Executive

Order 13132

I. Consultation with Tribal Governments

IX. How would today’s proposed regulatory

changes be administered and enforced in the

States?

A. Applicability of Federal Rules in

Authorized States

B. Authorization of States for Today’s

Proposal

1. Would authorized States be required to

the Uniform Manifest Form?

2. Would authorized States be required to

adopt electronic manifesting?

Appendix A. Extensible markup

language (XML) document type

definition for the hazardous waste

manifest

I. Authority

These regulations are proposed under

the authority of sections 2002, 3001

through 3007, and 3009 of the Solid

Waste Disposal Act of 1970, as amended

by the Resource Conservation and

Recovery Act of 1976 (RCRA), as

amended by the Hazardous and Solid

Waste Amendments of 1984 (HSWA), 42

U.S.C. 6912, 6921 through 6927, 6929

and 6930.

II. Request for Comments

The Agency requests comment on the

proposed changes to the manifest form,

the proposed procedures for using the

form, and on the proposed option for

electronic manifests, as described in this

document. The manifest system

includes both the Uniform Hazardous

Waste Manifest (EPA Form 8700–22)

and the Uniform Hazardous Waste

Manifest Continuation Sheet (EPA Form

8700–22A). The continuation sheet

includes many of the same data

elements as the manifest form, and

merely adds additional fields to identify

additional transporters or waste streams

which could not fit on the manifest.

While this document, for simplicity,

discusses the proposed manifest system

revisions primarily in the context of the

manifest form, it is EPA’s intent to

implement these revisions with respect

to both the manifest and the

corresponding data fields found on the

continuation sheet. Therefore, those

commenting on today’s proposal should

consider the proposed form revisions,

procedures, and electronic manifest

options as affecting both the manifest

form and the continuation sheet.

To assist in compiling and responding

to comments, the Agency requests that

commenters include a heading for each

issue addressed in their comment which

identifies the section(s) of this preamble

in which the issue is discussed (and/or

the regulatory citation(s) the comment

addresses). In addition to hard copies of

their comment, the Agency further

requests that, if possible, commenters

provide an electronic copy of their

comment on disk, preferably in ASCII

avoiding the use of special characters

and any form of encryption. Please

identify the software package used to

develop the document.

III. Background

A. History of Manifest System

Subtitle C of the Resource

Conservation and Recovery Act (RCRA)

required to establish a manifest system

to track shipments of hazardous waste

from a generator’s site to the site where

the hazardous waste is sent to be

managed (that is, cradle-to-grave). EPA

published regulations for a manifest

system on February 26, 1980. (See 45 FR

12724, February 26, 1980.) The central

element of the manifest system is the

paper trail—a document showing who is

in the control of the hazardous waste at

a given time and where the waste is

destined for its ultimate disposition.

The manifest also identifies the waste in

terms of its toxicity (that is, hazard

potential) and quantity and therefore, in

case of an emergency or waste release,

makes the emergency response

personnel aware of the potential for

human health and environmental

hazards the waste may pose.

EPA’s authority to establish

requirements for a manifest system

stems primarily from RCRA Section

3002(a)(5). (See also RCRA Sections

3003(a)(3) and 3004.) Regulations are

found in 40 CFR Part 262 (Generators),

Part 263 (Transporters), and Part 264

and 265 (Treatment, Storage and

Disposal facilities).

DOT regulations at 49 CFR 172.205

state that ‘‘No person may offer,

transport, transfer, or deliver a

hazardous waste (waste) unless an EPA

Form 8700–22 and 8700–22A (when

necessary) hazardous waste manifest

(manifest) is prepared in accordance

with 40 CFR 262.70 and is signed,

carried, and given as required of that

person by this section.’’ In the preRCRA days, the Department of

Transportation (DOT) requirements for

shipping papers were applicable for

tracking the movement of industrial and

chemical waste. (See 49 CFR 171.3 and

171.8) DOT did not require a specific

form but required each transport vehicle

to carry required information such as

hazardous material name and hazard

class. In the 1980 manifest rule, EPA

only required that certain information

must accompany hazardous waste

shipments. EPA believed that this

approach would allow the regulated

community to adapt its use of shipping

papers which are required by DOT’s

Hazardous Materials Regulations (49

CFR parts 171–180) to accommodate the

new EPA requirements. In addition, any

State that desired a manifest form was

allowed to develop one to satisfy its

needs, as long as the State form

provided the minimum information

requirements of the 1980 rule (45 FR

12729, February 26, 1980). The 1980

manifest rule retained flexibility

inherent to the DOT regulations so that

the manifest would also be able to serve

as the shipping papers required by

DOT’s hazardous materials

transportation regulations. This

approach, however, was short-lived.

Soon after the 1980 regulations

became effective, more than 20 States

developed and required their own

manifest forms. These forms met the

minimal Federal requirements but also

required additional State information.

Significant confusion and compliance

difficulties resulted from the differing

manifest requirements. Often, it was

necessary for generators to prepare

multiple manifests for interstate

shipments to satisfy the requirements of

the States through which the hazardous

waste traveled. Therefore, EPA and DOT

in coordinated rulemaking, with

significant assistance from the

Association of State and Territorial

Solid Waste Management (ASTSWMO)

and the Hazardous Materials Advisory

Council (HMAC), proposed and later

promulgated a Uniform Hazardous

Waste Manifest form and procedures for

its use. (See 47 FR 9336, March 8, 1982

(proposed rule), and 49 FR 10490,

March 20, 1984 (final rule)). This

Uniform Hazardous Waste Manifest

system remains in place today. The

Uniform Hazardous Waste Manifest was

designed to eliminate the burden for

generators, transporters, and other waste

handlers who may have been subject to

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28243

several versions of waste tracking

system with duplicate information. It

also was designed to enable generators

and transporters to meet both DOT and

EPA regulatory requirements. Under

this system, generators and transporters

are required to use the Uniform

Hazardous Waste Manifest, and States

may not require a different manifest in

its place. However, the Uniform

Hazardous Waste Manifest has State

blocks which allow States, at their

option, to require the entry of additional

specific information to serve their

State’s regulatory needs. EPA expected

that both the States and generators

would benefit from this approach since

the additional State information

requirements could be met on the

Uniform Manifest form, and the need for

generators to prepare separate manifests

for each State entered would be

eliminated (49 FR 10499, March 20,

1984). The Uniform Hazardous Waste

Manifest requirements, however, do not

preclude a State from requiring a

generator to send other information

under separate cover under the EPA rule

(49 FR 10492) or directly to the

appropriate agency of a State under the

DOT rule (49 FR 10508).

The manifest system in place for the

past 20 years has improved the

management and enforcement of the

national hazardous waste program

where it serves several primary

purposes:

(1) To serve as a tracking device

which creates clear lines of

accountability among the participants in

the hazardous waste system;

(2) To serve, together with the other

EPA and DOT requirements, to protect

human health and the environment

during the transportation of hazardous

waste by providing information on the

waste to persons handling the waste and

to emergency response personnel; and

(3) To provide the principal basis for

EPA’s recordkeeping and reporting

requirements (45 FR 12728, February

26, 1980).

The hazardous waste manifest was

developed to meet both RCRA and

HMTA requirements. As a form of DOTrequired ‘‘shipping paper’’ the manifest

conveys essential emergency

information required during

transportation, specifically the proper

shipping name, hazard class, phone

numbers enabling responders to obtain

additional information, when necessary.

These essential information

requirements negated the need of having

another set of separate papers, namely

shipping paper.

However, the revised form has not

entirely mitigated consistency and

uniformity problems that occurred with

the old manifest requirements primarily

because confusion about different State

manifest requirements associated with

the state optional fields still exist. Also,

the existing regulations describe a

specific, multi-copy paper form which

must be physically carried among waste

handlers, and which must be handsigned as custody of waste shipment

changes, making it difficult to integrate

the form with computer technologies.

(See section VII.D for further discussion

related to impediments to automation of

the waste tracking system.)

Consequently, EPA received further

complaints from the regulated

community and States. Further

discussion regarding these and other

problems with the uniform manifest

follow.

B. Problems Associated With Uniform

Manifest Form

1. Variability

Under the current regulations more

than 20 states print the manifest form in

accordance with the format specified in

federal regulations. As mentioned

previously, the manifest form was

designed to allow states to continue to

meet their individual information

needs. However, the different manifest

requirements among State Manifest

programs have drawn complaints from

the regulated community about manifest

inconsistency. Most complaints have

come from large generators and TSDFs

who helped generators prepare forms as

part of their business’ service. These

manifest users have expressed

frustration with the uniform manifest

because they still found it difficult to

complete the state optional portions of

the form without first collecting and

keeping track of requirements from each

state in which they did business. For

example, some states have assigned

additional generator identification

numbers, transporter identification

numbers, facility identification

numbers, or some combination of the

three, while others have not assigned

these numbers. Under the current

manifest requirements, a state may

require any combination of these boxes

to be completed in addition to the

federally required blocks on the

manifest. Thus, a generator who sends

waste to multiple states needs keep

track of which states require this

information on the manifest and ensure

that each manifest is filled out correctly

for its destination state.

Generators also have expressed their

frustration with optional Blocks I

‘‘Waste No.’’ and K ‘‘Handling Codes

...’’ because the inconsistencies

among states can make it very laborintensive for generators to complete

those blocks. For example, with respect

to completion of Block I, a generator

who sends wastes to different states

must determine which codes the states

require the generator to use in Block I

and under which circumstances the

generator may use the codes (e.g., when

a code is required for hazardous waste

being sent to a recycler).

Other manifest variability issues that

have caused much vexation for manifest

users are the different state manifest

copy distribution schemes and the

hierarchical manifest acquisition system

(See Section IV.A for details on the

manifest acquisition system and copy

distribution scheme). Specifically, states

that require generators to use their state

manifest form generally use a 6-part

form or an 8-part form. A state that

receives hazardous wastes may require

both the generator and the TSDF to

submit a copy of the manifest to the

state so that copies can be matched. In

other states, only the generator is

required to submit a copy of the form to

the state. Often, a person who needs

manifest forms from several states

cannot obtain them from one location.

As a result, a person must contact each

state separately to request the statespecific form.

2. State Difficulties

States that collect the manifest have

also experienced difficulty with

processing the paper manifest form.

They may collect hundreds of forms in

a month, and either place the manifests

in files, or manually enter the

information on the forms into a state

database system. Manual data entry

often results in errors and delay, which

could be avoided if the manifest were

prepared and transmitted to the states

electronically. Also, it is difficult to

exchange manifest information between

the generator’s state and the receiving

facility’s state because often, their

information systems are incompatible,

and unable to accept transfers of data

from one state to another.

C. Efforts To Improve the Hazardous

Waste Manifest System

In 1985, manifest officials in several

State environmental agencies formed an

Interstate Hazardous Waste Manifest

Coordinators Group (IHWMCG) to

address manifesting issues and to

increase uniformity among State

manifest programs. During 1988, the

IHWMCG served on the Association of

State and Territorial Solid Waste

Management Officials (ASTSWMO)

Manifest Revisions Task Force to

develop regulatory recommendations to

EPA to increase effectiveness, efficiency

28244 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

and consistency of the national

hazardous waste manifest system. The

Task Forces’s recommendations for

specific modifications to the Uniform

Hazardous Waste Manifest were

submitted to EPA as a rulemaking

petition on January 8, 1990.

In 1992, EPA embarked upon a

negotiated rulemaking effort in an

attempt to take advantage of the near

consensus already reached by States in

the ASTSWMO petition. The Negotiated

Rulemaking committee reached

agreement on recommendations for

revisions to the manifest form. The

Negotiated Rulemaking committee

recommended that essentially all

optional fields on the current manifest

form should become mandatory Federal

fields. In addition, the Negotiated

rulemaking committee recommended

several procedures for using the

manifest when hazardous waste

shipments are rejected by the designated

facility, or when the designated facility

cannot render containers ‘‘RCRA

empty.’’ The committee also agreed to

expand requirements for imported waste

shipments. The final agreement

document can be found in the

regulatory docket for today’s action.

However, before EPA completed the

Negotiated rulemaking process, it

implemented its reinvention strategy to

fulfill the Administration’s commitment

to reinventing environmental

protection. In March 1995, President

Clinton, Vice President Gore, and the

EPA Administrator put forth an

ambitious agenda to reinvent

environmental protection as part of the

larger goal of creating a federal

government that works more efficiently

and costs less. The Administration and

the Agency have been committed to the

goal of reducing the paperwork burden

resulting from environmental

regulations by at least 25% (Current

information about regulatory

reinvention is available on EPA’s World

Wide Web site at http://www.epa.gov/

reinvent/annual97/intro.htm/). In

addition, the Office of Management and

Budget (OMB) extended the approval of

the manifest ICR for only two years in

1994, with the expectation that EPA

would, in the interim, adopt manifest

revisions that would address regulatory

burden issues surrounding the existing

system. In 1996, OMB extended

approval of the Manifest ICR, but with

the expectation that EPA would

explicitly address, among other things,

innovative approaches as a way to

streamline and reduce the burden of

manifest reporting requirements. For

example, OMB suggested that EPA

develop and pilot test the electronic

submission and tracking of manifests.

As of 1999, EPA estimates that the

paperwork burden (from federal

requirements) of the manifest system is

2.92 million hours, making it one of the

highest paperwork burdens imposed

under RCRA.

Based on the aforementioned factors,

EPA reexamined its efforts on the

Negotiated rulemaking to determine if

they comported with the Administration

and Agency’s burden reduction

initiative. Based on its review, the

Agency determined that the negotiated

rule, as written, would have increased

the annual paperwork burden hours

significantly, since the rule adopted

most of the Negotiated Rulemaking

committee’s recommendations which

advocated, among other things,

including essentially all state optional

fields on the current manifest form as

mandatory Federal fields. As a result,

EPA determined that the Negotiated

Rulemaking committee’s

recommendations could not be

implemented without significantly

undercutting the Agency’s burden

reduction goals. In 1996, EPA

established an Agency workgroup

charged with building upon the

recommendations of the negotiated

rulemaking effort, as well as meeting the

Agency’s burden reduction goals. This

proposal reflects what the Agency

believes to be an appropriate balance

between the Negotiated Rulemaking

committee recommendations and the

Agency’s burden goals.

D. To Whom Would These New

Regulations Apply?

The table below identifies 45

economic sectors which would likely be

affected by the revisions to the RCRA

hazardous waste manifest system, as

proposed today. EPA derived the list of

sectors from data contained in the Office

of Solid Waste’s 1996 ‘‘National

Hazardous Waste Constituent Survey,’’

for the sector identity of waste shippers.

Because of the numerous sectors at the

four-digit SIC level (i.e., six-digit NAICS

level), the respective two- and threedigit levels are presented in the table

below for many sectors.

LIST OF ECONOMIC SECTORS WHICH ARE LIKELY AFFECTED BY THE PROPOSED REVISIONS TO THE RCRA HAZARDOUS

WASTE MANIFEST SYSTEM

Item SIC Code NAICS

Code Sector description

1 ........................................... 1794 23593 Construction excavation work.

2 ........................................... 20 311 Food and kindred products manufacturing.

3 ........................................... 2295 31332 Coated fabrics manufacturing.

4 ........................................... 24 321 Lumber and wood products manufacturing.

5 ........................................... 25 337 Furniture and fixtures manufacturing.

6 ........................................... 26 322 Pulp and allied products manufacturing.

7 ........................................... 27 511 Printing and publishing.

8 ........................................... 28 325 Chemicals and allied products manufacturing.

9 ........................................... 29 324 Petroleum and coal products manufacturing.

10 ......................................... 30 326 Rubber and miscellaneous plastic products manufacturing.

11 ......................................... 32 327 Stone, clay and glass products manufacturing.

12 ......................................... 33 331 Primary metal manufacturing industries.

13 ......................................... 34 332 Fabricated metal products manufacturing.

14 ......................................... 35 333 Industrial machinery and equipment manufacturing.

15 ......................................... 36 335 Electronic and other electric equipment manufacturing.

16 ......................................... 37 336 Transportation equipment manufacturing.

17 ......................................... 38 334 Instruments and related products manufacturing.

18 ......................................... 39 339 Miscellaneous manufacturing industries.

19 ......................................... 4111 485 Local and suburban passenger transit.

20 ......................................... 4173 48849 Terminal and service facilities for vehicle transport.

21 ......................................... 42 484 Trucking and warehousing.

22 ......................................... 4212 562112 Hazardous waste collection services.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28245

LIST OF ECONOMIC SECTORS WHICH ARE LIKELY AFFECTED BY THE PROPOSED REVISIONS TO THE RCRA HAZARDOUS

WASTE MANIFEST SYSTEM—Continued

Item SIC Code NAICS

Code Sector description

23 ......................................... 4491 4883 Marine cargo handling.

24 ......................................... 4512 48111 Air transportation.

25 ......................................... 4613 48691 Refined petroleum pipelines.

26 ......................................... 4789 488999 Transportation services n.e.c.

27 ......................................... 4813 5133 Telephone communications.

28 ......................................... 49 2211 Electric, gas and sanitary services.

29 ......................................... 4953 562211 Hazardous waste treatment and disposal.

30 ......................................... 4959 562910 Hazardous waste remediation services.

31 ......................................... 50 421 Wholesale trade (durable goods).

32 ......................................... 51 422 Wholesale trade (nondurable goods).

33 ......................................... 5912 44–45 Drugstores and proprietary retail stores.

34 ......................................... 6552 23311 Subdividers and developers.

35 ......................................... 7216 81232 Dry cleaning plants.

36 ......................................... 73 541 Business services.

37 ......................................... 7532 811121 Top, body and upholstery repair and paint shops.

38 ......................................... 7699 561 Repair shops and related services n.e.c.

39 ......................................... 8062 62211 General medical and surgical hospitals.

40 ......................................... 8221 61131 Colleges and universities.

41 ......................................... 87 541 Engineering and management services.

42 ......................................... 8999 541 Services n.e.c.

43 ......................................... 95 924–925 Environmental quality and housing administration (state government offices).

44 ......................................... 9661 92711 Space research and technology.

45 ......................................... 9711 92811 National security (e.g. military bases).

The following table presents EPA’s

estimate of more than 92,000 entities

which would potentially be affected by

today’s proposed rule. Because one of

the three proposed revisions to the

RCRA manifest system is voluntary (i.e.,

the proposed use of an electronic

manifest form), EPA anticipates that

facilities involved in RCRA manifesting

activities in these sectors would be

differentially affected by the proposed

rule, depending upon voluntary

adoption rate. Furthermore, affected

entities play at least four different roles

in the RCRA manifest system: (1) Waste

generators who ship wastes off-site, (2)

waste transporters (truck, barge, rail

operators), (3) waste receivers who treat,

store and/or dispose of shipped wastes,

and (4) state governments which

provide manifest forms, and which also

may collect manifest data (although not

required under the Federal RCRA

manifest program). The sources of these

estimates are presented in the

‘‘Economics Background Document’’

(dated 15 May 2000), available from the

RCRA Docket.

NUMBER OF ENTITIES WHICH MAY BE AFFECTED BY TODAY’S PROPOSED RULE

Item No. and role of affected entities in manifest system Entity

count

1. Waste generators who may ship wastes off-site (shippers) ................................................................................................................... 89,826

2. Waste transporters (truck, barge, rail operators) .................................................................................................................................... 500

3. Waste receivers (treatment, storage, disposal facilities) ........................................................................................................................ 2,024

4. State governments (which collect manifest data) ................................................................................................................................... 24

Total .................................................................................................................................................................................................. 92,350

E. How Much Burden and Cost

Reduction Does EPA Expect From the

Proposed Manifest Form Revisions?

Although there are up-front and

annual recurring costs to states and to

the private sector associated with all

three components of today’s proposed

rule, EPA designed this rule so that it

would have an overall net savings

impact on affected entities, primarily

associated with anticipated reduction in

the annual labor burden for the existing

paper-based manifest system. While the

proposed rule includes both

‘‘regulatory’’ and ‘‘de-regulatory’’

features, the overall net impact should

be a reduction in compliance burdens

and costs.

In order to estimate the potential

burden reduction for this proposed rule,

EPA prepared two separate, but

complementary, burden and cost

savings estimation documents: (1) An

ICR document for the proposed rule

(‘‘Information Collection Request

801.#’’, (ICR), 19 July 2000) as required

by OMB under the Paperwork

Reduction Act of 1995, for the purpose

of officially tracking paperwork burden

hours, and (2) an ‘‘Economics

Background Document,’’ (EBD), 12 May

2000), which applied a relatively

broader, economic analysis approach to

assessing potential burden reduction

savings. (EPA also prepared a third

economic study which examined the

benefits and costs associated with the

electronic equipment automation

component of today’s proposed rule,

which is summarized elsewhere in this

preamble).

Compared to the methodology of the

ICR, the EBD includes other types of

economic costs associated with the

RCRA manifest system. For example,

the EBD includes burden and costs

associated with both Federal and State

manifest information collection

28246 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

1 In authorized states, whether or not a waste

handler would be able to use an electronic manifest

system would be determined by the RCRA

authorized state program. We are tentatively

proposing not to require States to adopt the

proposed electronic manifest option as part of their

authorized program. See Section IX for further

discussion.

requirements, whereas the ICR only

covers Federal manifest information

collection requirements. Consequently,

the EBD estimates a larger baseline

annual manifest burden, but it also

estimates a larger annual burden savings

than the ICR document.

EPA’s analysis indicates that all of the

components of today’s proposed

revision to the RCRA manifest system

are expected to reduce administrative

paperwork burden among all RCRA

industrial hazardous waste handlers.

The ‘‘Information Collection Request

Nr.801.#’’ document estimates that all

components of today’s proposed

revision to the RCRA manifest system,

would achieve a reduction of 593,500

hours in national annual burden,

representing 25% reduction in burden

compared to the 2.335 million hour

burden baseline as estimated in the ICR.

In comparison, the ‘‘Economics

Background Document’’ (EBD) for this

proposed rule suggests that the resultant

reduction in waste manifesting burden

from all of the proposed revisions

combined, is expected to reach 1.241

million hours annually, consisting of

1.162 million hour reduction to waste

handlers, and 79,000 hours to state

agencies. Compared to the baseline

annual RCRA hazardous waste manifest

burden of 4.615 million hours as

estimated in the EBD, this reduction in

burden hours represents 27% annual

burden savings. These estimates

represent a 50% manifest adoption rate

scenario in the EBD, which assumes for

simplicity that 50% of manifests

become automated in the first year after

the today’s rule is promulgated.

However, EPA realizes that the

projected savings resulting from this

rule will more likely be phased in over

several years. EPA estimates that the

paperwork burden reduction from this

rule could eventually be 730,000 to 1.2

million hours per year, depending on

the requirements actually promulgated

in the final rule, and on the rate of

adoption of electronic manifest systems.

The actual timing of these burden

reductions is therefore uncertain. The

burden reduction (190,000 hours)

associated with the manifest form

revisions would occur over a two-year

phase-in period for the new form after

the final rule is promulgated. The

remaining savings (540,000 to one

million hours) could take several more

years to realize. The timing of these

savings would depend on whether or

not EPA would need to issue

supplemental proposals addressing

manifest automation; the availability of

the necessary software and hardware;

and the willingness of states and waste

handlers to adopt the electronic

manifest approach.

F. Effective Date of Final Rule

The effective date of the rule is

proposed to be six months after

promulgation of the final rule. Upon the

effective date of the rule, we are

proposing a two-year ‘‘delayed

compliance date’’ to allow manifest

users to phase-in use of the new form.

That is, for that two-year period,

manifest users would be allowed to use

either the old manifest form or the new

manifest form. The Agency is proposing

this phase-in period to allow time for

vendors, states and waste handlers to

get approval to assign manifest tracking

numbers and to print forms, as well as

to allow time for users to use up existing

stocks and find new supplies.

If you use the old manifest form

during this two-year period, the twoyear delayed compliance date would

also apply to proposed regulatory

amendments that are directly related to

use of the new form (i.e., form printing,

manifest tracking numbers, and

instructions for filling out the new

manifest form) as it would be difficult

for a waste handler to comply with

these requirements if they are not using

the new form. Waste handlers using the

old form during this time period would

have to comply with all other proposed

regulatory requirements, but would

continue to comply with the current

manifest requirements directly related

to use of the old form (i.e., acquisition

hierarchy, manifest instructions). For

example, a TSD rejecting a shipment of

hazardous waste would have to contact

the generator for a decision regarding an

alternative facility but could use an old

form (prepared in accordance with the

current instructions for filling out the

manifest) to manifest the rejected load.

If you do choose to use the new

manifest form during the two-year

period, you would be required to

comply with the proposed requirements

for form printing, manifest tracking

numbers, and instructions for filling out

the new manifest form. Once the twoyear period ends, all manifest users

would be required to use only the new

manifest form and would also be

required to comply with the

requirements for form printing, manifest

tracking numbers, and instructions for

filling out the new manifest form.

The two-year delayed compliance

date would not apply to any proposed

regulatory amendments related to the

electronic manifest proposal. Upon the

effective date, waste handlers who opt

to use an electronic manifest for a

hazardous waste shipment would be

required to comply with all the

requirements associated with use of the

electronic manifest at that time.1 This

would also include the proposed

requirements for manifest tracking

numbers, and instructions for filling out

the new manifest form. EPA does not

believe that a phase-in period would be

necessary for the electronic manifest

because use of the electronic manifest

would be optional. Waste handlers

would be able to use the paper system

until they are prepared to implement

the electronic manifest. In addition,

waste handlers would probably not opt

to use the electronic manifest system

unless they were prepared to implement

it in accordance with the final

requirements.

EPA requests comment on whether a

two-year delayed compliance date for

the use of the revised uniform

Hazardous Waste Manifest (and the

proposed requirements directly related

to use of the revised manifest) is

sufficient. EPA also requests comment

on whether a delayed compliance date

would be appropriate for the electronic

manifest system.

The Agency also requests comments

from states on whether they need to

make legislative changes to adopt the

new manifest or the automation option

and if so, how much time is necessary

to complete such changes. See Section

IX of this preamble for a detailed

explanation of how the proposed

regulatory changes would be

administered and enforced in the States.

IV. The Revised Manifest Form

A. Manifest Form Acquisition

1. How Is EPA Changing the Way

Manifest Forms Are Acquired?

EPA proposes to allow manifest users

to obtain the form from a greater number

of sources for use in any state. In

particular, EPA proposes to allow State

agencies, waste handlers (generators,

transporters, and TSDFs) and

commercial business form printers to

print the form. EPA is proposing to

require those who would print the new

manifest to first register with the

Agency. The purpose of the registry

would be twofold: (1) to ensure that the

forms are printed according to the

prescribed federal printing specification

(i.e., the standardized revised form) and

(2) to ensure that a unique number for

each manifest would be preprinted on

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28247

the form. Thus, generators could register

to print manifest forms, or they could

obtain a manifest form from any

registered source of manifest forms.

Under these new proposed

regulations, both the current printing

arrangements and the acquisition

requirements for manifest would

change. Currently, authorized States are

the primary source of manifests, and

States either print these forms

themselves or contract with printers to

print the form according to the States’

specifications. While States that

currently print and distribute manifests

are required to follow the Uniform

Manifest format, the current regulations

allow some variability among State

manifests, particularly with respect to

including and providing instructions for

optional fields used in each State, minor

formatting variations, and for describing

copy submission and mailing

requirements. As a result, there are now

24 different State variations of the

Uniform Manifest. The current manifest

acquisition regulation generally requires

that generators obtain their manifests

from a State agency, and determines

which State manifest must be used.

Under the procedures proposed today,

State, waste handlers, and commercial

form printers could register to print

manifests, and the manifests printed by

any registered printer could be used in

any state.

2. Why Is EPA Proposing this Change?

EPA is proposing a new system for

obtaining manifest forms, to reduce the

burden that waste handlers currently

encounter in obtaining manifests from

multiple States, and to reduce or

eliminate the variability among states on

what forms to use, what is printed on

them, and how to use them.

Under the current regulations, a

hazardous waste generator must check

at least two different State agencies’

manifest requirements to determine how

and where to obtain a manifest. The

current manifest acquisition

requirements are set forth in 40 CFR

262.21, which contains a hierarchical

scheme for determining which state’s

manifest should be used for a particular

waste shipment. EPA and DOT

developed this approach in the 1984

Uniform Manifest Rule, in order to

accommodate States that wished to

collect and track manifest data, while

avoiding conflicts between States’

requirements. EPA explained in the

1984 rulemaking that it did not intend

to print and supply manifest forms, and

the hierarchy approach resulted from

the Agency’s efforts to effectively

arrange the distribution of manifests by

the States. 49 FR 10490 at 10495 (March

20, 1984).

The § 262.21 acquisition hierarchy

requires a generator to first look to the

manifest requirements of the

consignment (i.e., the state in which the

hazardous waste shipment will be

transported to, and subsequently

managed in that state) State. If this State

supplies a manifest and requires its use,

then the consignment State’s manifest

must be used for the waste shipment. If,

however, the consignment State does

not supply a manifest, but the

generator’s State does supply a manifest

and requires its use, then the generator

must use the manifest required by the

generator’s state. If neither the

consignment nor generator State

supplies a manifest, then the generator

may obtain the manifest from any

source. When EPA announced this

hierarchy regulation in 1984, the

Agency explained that this approach

would serve two important interests: (1)

It would help consignment States

inform out-of-State generators of

requirements to submit manifest copies

to the consignment States (i.e., the form

would contain a notice to this effect);

and (2) it would allow consignment

States to pre-print a State manifest

document number on each manifest, to

aid in tracking the manifest in the

States’ tracking systems. 49 FR at 10496.

The acquisition hierarchy establishes a

preference for obtaining the form from

the consignment State, as EPA

determined in 1984 that a consignment

State’s interest in overseeing waste

management within its borders

outweighed any convenience that would

result to generators if they were allowed

to obtain manifests from a single source.

Id.

EPA believes that the current

acquisition hierarchy puts unnecessary

administrative burden on certain waste

handlers, particular those who conduct

business in multiple states that require

the use of their state manifest. For

example, if a waste handler conducts

business in multiple states, then he/she

must make arrangements to acquire

manifest forms from each state or keep

stocks of inventory of the varying

manifest formats. In addition, waste

handlers must become familiar with

instructions for the different forms to

ensure that they complete the manifests

correctly. Removing the current

acquisition system, eliminates the

aforementioned inconveniences, since

the form supplied by states and other

manifest sources would be the same.

EPA believes that the factors relied

upon in 1984 to support the current

acquisition hierarchy would not be

significant under the revised manifest

proposed today. EPA is proposing to

eliminate all but two optional fields

(waste codes and handling codes), and

EPA believes that most manifests would

include these ‘‘optional’’ data as the

normal practice. The 6-copy form with

unique, pre-printed manifest tracking

numbers under the Federal specification

would satisfy many of the needs States

have previously identified as reasons for

controlling the distribution of the

manifest. Also, information on Stateonly wastes, use of optional fields, and

State-specific copy submission

requirements can be obtained by

contacting the States directly, or

through published or on-line sources.

State contact information and telephone

numbers can be found, for example, on

the Internet at EPA’s website (http://

www.epa.gov/epaoswer/osw/

stateweb.htm).

EPA believes that the informational

purposes served by allowing States to

distribute the manifests under the

acquisition hierarchy can be met

adequately by other means. There

would be little, if any, variability

remaining in the proposed revised

manifest form, and information

describing State-specific requirements

can be obtained through other means

than distribution of the form. In

addition, EPA believes that the States’

interest in ensuring that unique tracking

numbers are provided for each manifest

can be met by the proposed printing

registry approach.

The proposed change regarding the

printing and distribution of the paper

form would also be consistent with the

changes proposed to implement the

electronic manifest system. Thus, the

Agency believes that both the electronic

and paper formats would be distributed

more efficiently and with less burden

under the approach proposed today.

While the remainder of this discussion

focuses on the registry and acquisition

requirements for the paper form, the

Agency points out that as with the

printers of paper manifests, waste

handlers who originate an electronic

manifest would have to register to get an

approved tracking number system.

3. How Much Burden Reduction Does

EPA Expect From the Proposed Manifest

Form Revisions?

EPA’s analysis indicates that today’s

proposed revision to the RCRA

hazardous waste manifest form is

expected to reduce administrative

paperwork burden among all RCRA

industrial hazardous waste handlers

who ship wastes off-site. The

‘‘Economics Background Document’’ (12

May 2000) for this proposed rule

estimates that the resultant reduction in

28248 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

waste manifesting burden from the

proposed revisions to the manifest form,

would be 188,000 hours annually to

RCRA hazardous waste handlers. This

reduction in burden hours is expected

to account for between 16% and 26% of

the annual burden hour savings to waste

handlers expected from all of the RCRA

manifest system revisions proposed

today.

4. Where Would a Waste Handler Get

Paper Manifest Forms?

Generators and other waste handlers

needing the manifest would be able to

register with EPA and print their own

manifests. Generators could also obtain

their manifests from other sources,

however. The proposal would allow

waste generators to obtain blank copies

of the manifest from any of the

following sources:

• Any state hazardous waste agency

that registers as a printer and prints

manifests;

• Commercial business forms printers

who register to print the form; and

• Transporters and TSDFs who

register to print the form. These

companies often provide the manifest as

a service to their generator customers.

5. Must a Generator Still Contact the

State?

Yes, you would still need to contact

the consignment state periodically to

determine which of the state-only

blocks of information on the manifest

you are required to fill out. Also, as

mentioned above, EPA determined that

while it was not necessary to impose a

federal requirement that generators

submit copies of each completed

manifest form to a State or to EPA, the

Agency recognized that states could

impose a more stringent manifest

system that could involve the

submission by generators of copies of

every completed manifest form. This

proposal does not affect the ability of a

state to require the submission of

manifests. However, states would no

longer be able to print a notice of such

requirements on the manifest form. To

continue to give states the ability to

track manifested shipments of waste, it

is still necessary to contact your state to

see what they require in terms of staterequired information on the manifest

and in terms of submitting manifest

copies to states.

6. What Special Requirements Would

Apply to the Printers of the Universal

Manifest?

• You would be required to register

with EPA as a forms printer to get your

manifest tracking number system

approved and to ensure that you adhere

to Federal printing specifications and

procedures;

• No additional boxes could be

added;

• No existing boxes could be deleted;

• You would be required to print a

form that had at least the following six

copies:

—Copy 1: TSDF to destination State

(if required);

—Copy 2: TSDF to generator State (if

required);

—Copy 3: TSDF to Generator;

—Copy 4: TSDF’s signed file copy

—Copy 5: Transporter’s file copy

—Copy 6: Generator’s initial copy.

• You would be required to print the

form so that the manifest dimensions

are 81⁄2×11 inches;

• You would be required to print the

form in black ink so that it can be

photocopied or faxed;

• You would be required to provide

the standardized instructions outlined

below;

• You would be required to follow

the same copy naming structure as

outlined below; and

7. What is the Naming Convention for

the Different Copies of the Manifest?

Page 1 (top copy): ‘‘Designated facility

to consignment State’’ (if required);

Page 2: ‘‘Designated facility to

generator State’’ (if required);

Page 3: ‘‘Designated facility to

generator’’;

Page 4: ‘‘Designated facility copy’’;

Page 5: ‘‘Transporter copy’’; and

Page 6 (bottom copy): ‘‘Generator’s

initial copy.’’

If the generator is required to submit

a copy of the manifest to the generator

state, the generator should make a

photocopy of the manifest to supply this

additional copy. Also, note that a

completed manifest may contain fewer

pages if the state does not require

submission of forms; however, the

printer would be required to print a 6-

copy form. Under certain circumstances

(e.g., exports, imports, additional

transporters, exception reporting, and/or

states requiring additional copies), more

than 6 copies of a manifest may be

necessary. In these cases, the generator

or transporter should photocopy the

most legible copy of the form available

to ensure that the extra manifest copies

are legible.

8. How Would the Acquisition

Regulation Change?

EPA is proposing to replace the

current acquisition hierarchy in § 262.21

with a simple requirement that a

generator may print its own manifest if

it has registered with EPA to do so, or

a generator may use a manifest obtained

from any commercial printer, state, or

other waste handler that has registered

with EPA to print the manifest. In

addition to amending 40 CFR 262.21,

the provisions currently found at 40

CFR 271.10 for States that print

manifests and/or require completion of

state optional fields would be revised

accordingly.

9. How Would Manifest Tracking

Numbers be Changed by the Proposal?

Under this proposal, the current fields

for the generator’s manifest document

number (i.e., the generator’s U.S. EPA ID

number plus a unique 5-digit number

that the generator assigns to each

manifest) and the state manifest

document number would be replaced

with one mandatory field that would be

called the manifest tracking number

(Item 3). Note, that the generator’s EPA

ID number would still appear on the

form; however, it would not be part of

the manifest tracking number. The

manifest tracking number would be a

unique pre-printed number that would

be supplied by a registered manifest

printer. A waste generator could register

with EPA to print its own manifests and

assign its own manifest tracking

numbers, or, the generator could obtain

manifest tracking numbers from other

registered sources who print for the

generator, including States, transporters,

TSDFs, or commercial business form

printers.

An entity that wants to print

manifests would register with EPA and

demonstrate that they have a system in

place to ensure that unique, pre-printed

numbers would be assigned to each

manifest. Similarly, entities

implementing an electronic manifest

system would register with EPA to

ensure that their electronic system

would apply a unique manifest tracking

number to each electronic manifest.

The advantage of this manifest

tracking number requirement is that it

would allow waste handlers to acquire

uniquely numbered manifests from

numerous sources, without having to

obtain a different set of forms from each

State in which it does business. The

proposal would eliminate an ‘‘optional’’

field from the current manifest, and a

new mandatory field would replace two

existing fields on the manifest. Also,

waste handlers with significant

involvement in hazardous waste

activities would be able to register and

print their own manifests for use within

their own sites or for use by their multistate customers. Multi-state operations

would benefit especially, as they would

no longer need to stock multiple state

formats of the manifest.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28249

10. Could States Still Require Use of

Only Their Manifests?

When EPA adopted the acquisition

hierarchy in 1984, we recognized the

need for a regulation that would

arbitrate possible conflicts between

State manifest requirements for

generators located in one state, but

disposing of their waste in another. The

acquisition hierarchy in current § 262.21

arbitrates such conflicts by establishing

a rule that one State manifest is always

sufficient for any hazardous waste

shipment, and by designating which

state’s manifest must be used.

With today’s proposal, it is still EPA’s

intent that only one manifest need be

obtained to accompany any off-site

shipment. Under the revised Uniform

Manifest proposed today, variability in

the form would be eliminated, and the

source of the manifest form used would

be immaterial. So, when today’s

proposed approach becomes effective,

States would not be allowed to require

use only of a manifest form printed or

distributed by the State. States would, of

course, be eligible to register and

distribute manifests, but State laws

which purport to require use only of a

form distributed by the State would be

deemed inconsistent under 40 CFR

271.4. Otherwise, waste handlers could

be required to obtain multiple manifests

to satisfy conflicting and duplicative

State law requirements for their specific

manifests. This result would, in EPA’s

view, frustrate the accomplishment of

our objective to introduce a truly

standard manifest form, and amount to

an unreasonable burden on the free

movement of waste in commerce.

11. Request for Comments

EPA requests comments on the new

approach proposed today for printing

and obtaining manifests. Would the

proposed approach be effective in

eliminating burden and variability in

the manifest system, or, would it more

likely cause disruption to arrangements

that are well understood and work well?

Is the proposed registry approach the

most efficient means for EPA to ensure

a standard manifest with pre-printed,

unique tracking numbers? Would many

waste handlers find it advantageous to

print manifests for their own use or the

use of their customers? How would the

proposal affect these firms’ burdens,

costs, and manifest operations? Would

States that currently derive revenue

from the distribution of manifests be

disadvantaged unduly by the proposal?

Would some States face statutory

obstacles to altering their current

manifest distribution requirements?

Comments addressing these issues

would be helpful to the Agency.

EPA also requests comments on an

alternative option that would retain the

proposed Federal printing specification,

but not the proposed registry. Under the

alternative option, States would still be

the primary source of manifests, and the

current acquisition hierarchy would be

retained to determine from which State

the manifest must be obtained. This

option would retain the benefits of the

standard manifest format, without

disrupting current arrangements for

obtaining manifests from States.

However, as with the current system,

waste handlers would not generally be

able to print their own manifests as

allowed under the proposed option.

B. International Shipments

1. What is EPA Proposing With Respect

to Manifests for Imports and Exports?

EPA is proposing to amend slightly

the manifest requirements and the

manifest form to provide more clear

information on the manifest about

import or export shipments. Under

today’s proposal, the manifest would

contain a new ‘‘International

Shipments’’ Block. In this new block,

the primary exporter or importer of a

hazardous waste shipment would be

required to check whether a shipment is

an export or import and to note the port

of exit or entry. In addition, space

would be provided in this block for the

transporter of an export shipment to

sign and date the manifest to indicate

when the shipment left the United

States. For imports, the transporter

would be required to leave a copy of the

manifest at U.S. Customs, as is currently

required for exports.

2. Why is EPA Proposing This Change?

Under the current regulations for

exports, transporters are required to

leave a copy of the manifest at U.S.

Customs. The current regulations and

manifest instructions further require

that export manifests include

information in the ‘‘Special Handling

Block’’ identifying the port of exit, as

well as the transporter’s signature

attesting to the date when the export

shipment left the U.S. According to a

national transporters’ association, the

current rules are not well understood,

and this has resulted in inadvertent

violations by transporters. In part, this

is because the manifest form itself is not

sufficiently clear on how this

information is to be entered. In addition

to hindering compliance by

transporters, this lack of clarity has also

resulted in incomplete submissions that

impair EPA’s ability to accurately track

exports of hazardous waste. To address

these concerns, the Agency is proposing

to make the existing export tracking

requirements more clear in the

regulations and on the manifest form

itself, which would include an

International Shipment Block for

collecting the data.

In addition, the Agency is proposing

new requirements in connection with

imports of hazardous waste. First, the

importer would be required to indicate

on the new International Shipment

Block of the manifest whether a

shipment is an import and the port of

entry. Second, the transporter bringing

import shipments into the U.S. would

be required to leave a copy of the

manifest with U.S. Customs. Currently,

a manifest is required to accompany

waste shipments that enter the U.S., but

transporters are not required to leave a

manifest copy with U.S. Customs for

imports. Several ports have nevertheless

encouraged the collection of import

manifests, and all of the ports collect the

export manifests which transporters are

currently required to leave with U.S.

Customs. Moreover, for international

shipments of hazardous waste for

recovery within the Organization for

Economic Cooperation and

Development (OECD), of which the U.S.

is a member, a facility in the U.S.

receiving an import covered by

regulations at 40 CFR Part 262, Subpart

H must send a copy of the OECD

tracking form to EPA. By requiring that

transporters leave a copy of import

manifests with U.S. Customs, EPA

would achieve better consistency with

the current requirements in 40 CFR Part

262, Subpart H that require tracking

information on import shipments to be

provided to the Government. These

import manifests would aid EPA’s

oversight of waste imports, as the

manifests collected by Customs could be

turned over to EPA’s Import/export

program for tracking purposes.

3. How Would the Manifest and the

Regulations Change?

To make the requirements more clear,

the Agency is proposing to add an

International Shipment Block to the

manifest. This block would contain

checkboxes to indicate whether the

shipment is an export or an import, and

space to enter the port of exit or entry.

For export shipments only, the block

would include space for transporters to

sign and date the manifest to indicate

when a shipment has left the U.S. This

block would provide more explicit

direction for entering data with respect

to exports and imports.

In addition, the regulations at 40 CFR

262.54, 262.60, and 263.20 would be

28250 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

2 In 49 CFR 171.8, DOT defines ‘‘bulk packaging’’

to mean ‘‘a packaging, other than a vessel or a barge,

including a transport vehicle or freight container, in

which hazardous materials are loaded with no

intermediate form of containment and which has:

(1) A maximum capacity greater than 450 (119

gallons) as a receptable for a liquid; (2) A maximum

net mass or greater than 400 kg (882 pounds) and

a maximum capacity greater than 450 L (119

gallons) as a receptable for a solid; or (3) A water

capacity greater than a 454 kg (1000 pounds) as a

receptable for a gas as defined in § 173.115 of this

subchapter.’’

changed to clarify that primary

exporters and importers are to fill out

the International Shipment block on the

manifest and that transporters of both

exports and imports are to leave a copy

of the manifest with the U.S. Customs

official at the port of exit from the U.S.

or at the port of entry to the U.S. EPA

would also modify § 271.11(c), since a

waste handler who imports waste

shipments into the U.S. would be

required to leave a copy of the manifest

with U.S. Customs.

C. Bulk Packaging

1. How is EPA Changing Its Regulations

Related to Bulk Containers?

EPA proposes to change its

regulations that relate to bulk containers

to be consistent with the DOT definition

for bulk packaging which includes any

container with a capacity greater than

119 gallons (0.45 cubic meters, 450

liters, or 15.9 cubic feet) or more.

Because of this change some containers

currently considered bulk under EPA’s

regulations would no longer be

considered bulk. Current RCRA

regulations treat as ‘‘bulk’’ containers

which hold more than 110 gallons.

Under this proposal, a container which

holds 119 gallons or less would no

longer be considered bulk, including

containers of 110 gallons.

The 110 gallon standard was based on

DOT requirements which, at the time,

defined bulk packaging as 110 gallons or

more (47 FR 36092; August 18, 1982).

DOT revised these standards 2 in 1991 to

make U.S. standards more consistent

with international requirements. (See 55

FR 52471, December 21, 1990.) Today’s

notice proposes to revise RCRA

regulations pertaining to bulk containers

to be consistent with the DOT definition

of bulk packaging.

2. Why is EPA Changing Its Rules

Related to Bulk Packaging?

This change would bring EPA into

conformity with the standard already

used by DOT and the international

community, and would increase

uniformity in manifesting practices.

Generators would be able to use the

same standard measurement for bulk

containers for all shipments of

hazardous materials.

3. How Would This Affect Me?

If you:

(1) handle residues of hazardous

waste in containers according to the

provisions at § 261.7(b),

(2) are a generator who sends bulk

containers of hazardous wastes off-site

(see 262.32(b)),

(3) are a transporter who transports

bulk shipments by water (see 263.20(e)),

or

(4) are a TSDF who receives bulk

shipments for management (see

264.71(b)), then: you would have to

confirm whether the containers you are

managing would still be considered

bulk. If the containers you are managing

do not meet DOT’s definition of bulk,

then you would no longer be allowed to

handle the waste as bulk under EPA

regulations.

4. How Would the Regulations Change?

First, the regulations at 40 CFR 261.7

Residues of hazardous waste in empty

containers would change slightly to

incorporate DOT’s definition of bulk

packaging. 40 CFR 261.7 discusses how

much hazardous waste may remain in a

container that is empty. Among other

things, these regulations require that a

container must be emptied using the

practices commonly employed to

remove material from that type of

container e.g., pouring, pumping, and

aspirating, and that no more than a

specified amount of waste must be left

in the container. One method of

determining whether a container is

RCRA ‘‘empty’’ is based on whether the

container is greater or less than 110

gallons total capacity.

For containers less than 110 gallons,

the regulations at 40 CFR

261.7(b)(1)(iii)(A) state that a container

is empty if: ‘‘No more than 3 percent by

weight of the total capacity of the

container remains in the container or

inner liner if the container is less than

or equal to 110 gallons in size * * *’’

If the container is greater than 110

gallons, the regulations at 40 CFR

261.7(b)(1)(iii)(B) state that a container

is empty if: ‘‘No more than 0.3 percent

by weight of the total capacity of the

container remains in the container or

inner liner if the container is greater

than 110 gallons in size.’’

This proposal would modify the

regulations so that 40 CFR

261.7(b)(1)(iii) would define a container

as empty if:

(A) No more than 3 percent by weight of

the total capacity of the container remains in

the container or inner liner if the container

is less than or equal to 119 gallons in size,

or (B) No more than 0.3 percent by weight

of the total capacity of the container remains

in the container or inner liner if the container

is greater than 119 gallons in size.

Second, the regulations for generators

at 40 CFR 262.32 Marking would change

slightly to incorporate DOT’s definition

of bulk packaging. 40 CFR 262.32(b)

requires a generator to mark each

container of 110 gallons or less used in

transportation with the words

‘‘HAZARDOUS WASTE -Federal Law

prohibits Improper Disposal. If found,

contact the nearest police or public

safety authority or the U.S.

Environmental Protection Agency,’’ and

write the generator’s name, address, and

the manifest tracking number on the

container. Under the proposed

revisions, this marking requirement

would apply to containers of 119

gallons or less.

Third, the regulations which refer to

‘‘bulk shipment’’ would not change. The

term ‘‘bulk shipment’’ is used in 40 CFR

262.23, 263.20, and 264.71. Where the

regulations use the term, these

regulations would apply to shipments of

a capacity of more than 119 gallons,

rather than shipments of more than 110

gallons. Therefore, you would no longer

be able to manage a container of

between 110 gallons and 119 gallons as

a bulk container.

Please note, other than to incorporate

the DOT definition for bulk packaging,

EPA is not reconsidering, reopening, or

requesting comment on the provisions

described above.

D. Use of Fractions

1. What Is EPA Changing With Respect

to the Use of Fractions in the Quantity

Description on the Manifest?

EPA is clarifying that generators and

others completing the quantity

description for waste being shipped (see

Item 13) should use whole numbers to

describe non-bulk shipments (less than

or equal to 119 gallons) of hazardous

waste and that bulk shipments (greater

than 119 gallons) may be described

using whole numbers where possible, or

fractions if necessary.

2. Why is this clarification necessary?

EPA’s regulations are silent on the use

of fractions on the manifest. EPA has in

the past stated that no fractions or

decimals should be used and continues

to prefer that the quantity description

should not include fractions. In March

20, 1984, EPA stated that it ‘‘. . . does

not believe that the quantity description

should include fractions. Rather, the

Agency believes that the quantity

description should be the most accurate

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28251

3See the March 20, 1984 Federal Register (49 FR

10498) for this discussion.

possible without using fractions or

decimals.’’3

Despite this past statement, states

have experienced an increase in the

number of manifests containing

descriptions with fractions. State

databases may have difficulty accepting

numbers such as 30.5 pounds, making

the data entry process more difficult. To

minimize this, states asked EPA to

require that generators and others

preparing the manifest only use whole

numbers when indicating quantities of

waste on the manifest.

While this is a workable solution for

non-bulk shipments, the Agency

realizes that bulk shipments of

hazardous waste may be transported in

large containers such as tank trucks, and

that fractions may be the best way to

accurately describe the contents of the

container. Because there would be a

significant discrepancy in the amount of

hazardous waste recorded on the

manifest if one ton were used to

describe a container with 0.5 tons of

waste, EPA believes that the use of

fractions is warranted in bulk

containers. Thus, EPA is clarifying that

whole numbers should be used for nonbulk shipments of hazardous waste, and

that fractions may be used for bulk

shipments where necessary.

3. What Would Change?

EPA is proposing to include in the

manifest instructions (item 12) a

statement that generators and others

completing the form must use whole

numbers for non-bulk shipments of

hazardous waste, except that fractions

may be used for bulk shipments where

necessary.

E. Emergency Response Phone Number

1. What Is EPA Proposing Related to

Emergency Response Phone Numbers

on the Manifest?

EPA proposes to designate one space

on the manifest for Emergency Response

information. DOT currently requires you

to use an Emergency Response phone

number for most shipments of

hazardous materials including all

hazardous wastes that are manifested.

(See 49 CFR 172.604) While hazardous

waste shipments must be shipped with

an Emergency Response phone number,

the current manifest does not contain a

separate block for this information. DOT

requires an emergency response phone

number in addition to other information

to identify the waste. This information

is important in aiding emergency

responders in dealing with an

emergency involving hazardous wastes.

The emergency response phone

number must:

• be the number of the generator or

the number of an agency or organization

who is capable of and accepts

responsibility for providing detailed

information about the shipment;

• reach a phone that is monitored 24

hours a day at all times the waste is in

transportation (including transportation

related storage); and

• must reach someone who is either

knowledgeable of the hazardous waste

being shipped and has comprehensive

emergency response and spill cleanup/

incident mitigation information for the

material being shipped or has

immediate access to a person who has

that knowledge and information about

the shipment.

Currently, you may place this number

in the Special Handling Instructions and

Additional Information Block (Item 15),

in the Generator’s Phone Number Block

(Item 4), and in some cases in the

margin or on the back of the form. Some

generators place this information in the

DOT description box, especially if more

than one emergency response phone

number is needed.

2. Why is EPA Proposing These

Changes?

Because there are no explicit

directions on the manifest to supply an

emergency response phone number, and

because there is no designated space for

this number, some generators may not

be aware that this is a requirement, and

emergency responders may not be able

to quickly find this information on the

form. EPA is proposing to make it more

clear that the emergency response

phone information is required on the

form, and make this information easier

to find by designating one space on the

manifest for emergency response contact

information.

EPA expects that this additional

instruction and the removal of other

redundant or unnecessary waste handler

phone numbers (see discussion below in

Section IV.G) would reduce paperwork

burden and facilitate the emergency

response process by making it clearer

which number is to be used in an

emergency.

3. How Would This Change Affect the

Regulations?

The manifest form would be modified

by adding a box specifically for

emergency response information, and

the instructions would be modified to

reflect the addition of this box.

F. Generator Certification

1. How Would the Generator

Certification Statements on the Manifest

Be Modified?

This proposal would modify the

wording of the ‘‘shippers certification’’

and the appearance of the ‘‘waste

minimization certification’’ statements.

The changes proposed today, however,

would not modify the current

requirement that generators must sign

these certifications on the manifest form

each time a manifest is prepared.

2. What Are the Current Requirements

to the Generator Certification?

Generators must sign the Generator’s

Certification found on the manifest form

each time a manifest is prepared. The

‘‘Generator’s Certification’’ consists of a

signature attesting to a statement that

the shipment has been properly

prepared for transportation (a shipper’s

certification) and a statement that the

generator has a program in place to

reduce the volume and toxicity of waste

generated (the waste minimization

certification). Today’s proposal does not

modify the requirement that generators

make these certifications on the

manifest each time a manifest is

prepared

The shipper’s and waste minimization

certification statements are found in

Block 16 of the current Uniform

Hazardous Waste Manifest followed by

space for a single signature (i.e., a single

signature is used to attest to both

certifications). The content of the

shipper’s certification statement is as

follows:

I hereby declare that the contents of this

consignment are fully and accurately

described above by proper shipping name

and are classified, packed, marked, and

labeled, and are in all respects in proper

condition for transport by highway according

to applicable international and national

government regulations.

Today’s proposal would slightly

modify this statement. The content of

the waste minimization certification

statement is as follows:

If I am a large quantity generator, I certify

that I have a program in place to reduce the

volume and toxicity of waste generated to the

degree I have determined to be economically

practicable and that I have selected the

practicable method of treatment, storage, or

disposal currently available to me which

minimizes the present and future threat to

human health and the environment; OR, if I

am a small quantity generator, I have made

a good faith effort to minimize my waste

generation and select the best waste

management method that is available to me

and that I can afford.

Today’s proposal would not modify

the waste minimization certification

28252 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

statement, but the complete text of this

certification statement would no longer

appear on the manifest. The single

signature in Block 16 would still attest

that the signatory certifies both

statements.

3. How Would EPA Modify the

Language of the Shipper’s Certification?

EPA proposes to update the first part

of the shipper’s certification statement

so that it conforms to the DOT shipper’s

certification (49 CFR 172.204). On

December 29, 1994 (59 FR 67487), DOT

slightly changed the wording of the

Shipper’s Certification found at 49 CFR

172.204(a). These changes appear in

bold in the following text:

I hereby declare that the contents of this

consignment are fully and accurately

described above by the proper shipping

name, and are classified, packaged, marked

and labelled/placarded, and are in all

respects in proper condition for transport

according to applicable international and

national governmental regulations.

In addition, EPA proposes to delete

the words ‘‘by highway’’ from the

shipper’s certification statement.

Currently, if a transportation mode other

than highway would be used, generators

are instructed to line out the words ‘‘by

highway’’ and insert the appropriate

mode of transport (i.e., rail, water, or

air). EPA does not believe it necessary

for the mode of transport to be specified

as part of the shipper’s certification (see

DOT’s shipper’s certification which

does not specify the mode of transport)

and eliminating the words ‘‘by

highway’’ from this certification would

eliminate the need for generators to

modify the statement when other forms

of transportation are utilized.

EPA currently requires primary

exporters to add at the end of the first

sentence of the shipper’s certification

statement the words ‘‘and conforms to

the terms of the EPA Acknowledgment

of Consent to the shipment.’’ EPA is not

proposing to change this requirement.

The new shipper’s certification

statement on the manifest would read as

follows:

I hereby declare that the contents of this

consignment are fully and accurately

described above by the proper shipping

name, and are classified, packaged, marked

and labelled/placarded, and are in all

respects in proper condition for transport

according to applicable international and

national governmental regulations.

4. How Would EPA Change the

Appearance of the Waste Minimization

Certification Statement?

EPA proposes to replace the current

waste minimization certification

statement on the manifest with the

following statement of certification: I

certify that the waste minimization

statement identified in 40 CFR 262.27(a)

(if I am a large quantity generator) or (b)

(if I am a small quantity generator) or

authorized equivalent state regulations

is true with respect to this shipment.

Section 262.27 would read as follows:

A generator who initiates a shipment of

hazardous waste must certify to one of the

following statements in Item 16 of the

uniform hazardous waste manifest:

(a) ‘‘I am a large quantity generator. I have

a program in place to reduce the volume and

toxicity of waste generated to the degree I

have determined to be economically

practicable and I have selected the

practicable method of treatment, storage, or

disposal currently available to me which

minimizes the present and future threat to

human health and the environment’; or

(b) ‘‘I am a small quantity generator. I have

made a good faith effort to minimize my

waste generation and select the best waste

management method that is available to me

and that I can afford.’’

5. Why Is the Agency Proposing this

Change to the Appearance of the Waste

Minimization Certification Statement?

EPA is proposing these changes

because they are necessary to ensure

that other proposed form changes such

as the inclusion of new fields for

rejected loads, container residues, and

international shipments would fit on the

form. The text of the generator waste

minimization statement currently

occupies a significant amount of space

on the manifest form. Leaving the

statement as is, along with the proposed

additions to the manifest form would

cause the form to exceed a single page.

EPA would prefer to maximize the

space of the current one page 81⁄2 by 11′′

form rather than make it a multiple page

form, because we do not want to

increase the volume of paper that

manifest users already keep on file. In

order to accommodate the addition of

new fields to the 81⁄2 by 11′′ form (i.e.,

fields for rejected loads, container

residues, and international shipments),

EPA proposes to remove the full text of

the waste minimization statement from

the form. The waste minimization

certification would still be made on the

manifest form, with the waste

minimization statements located in the

regulations for reference.

G. Elimination of Certain State Optional

Boxes

1. Why Is EPA Proposing To Reduce the

Number of State Optional Boxes?

EPA proposes to eliminate certain

State Optional Boxes to (1) reduce the

amount of time spent completing the

manifest form, and (2) to reduce the

amount of duplicate information. EPA

also proposes to remove certain optional

fields that might have some significance

to certain States, but reportedly do not

have wide use and information

provided in these fields can be readily

obtained elsewhere.

Currently, the Manifest contains

eleven Optional blocks (Block A–K).

EPA does not require that you complete

these blocks. States, however, may

require that you complete these blocks

to collect specified additional

information about the waste that is

being shipped, and about those who

handle the waste listed on the form.

2. Which Boxes Would Be Eliminated?

EPA proposes to remove the following

nine blocks from the manifest form:

Block No. Name of block

Item A ........... State Manifest Document

Number.

Item B ........... State Generator’s ID.

Item C .......... State Transporter’s ID.

Item D .......... Transporter’s Phone.

Item E ........... State Transporter’s ID.

Item F ........... Transporters Phone.

Item G .......... State Facility’s ID.

Item H .......... Facility’s Phone.

Item J ........... Additional Descriptions.

3. Why Is EPA Proposing To Remove

Each of These Boxes?

When EPA promulgated the uniform

hazardous waste manifest in 1984, it

believed that the uniform manifest

would reduce regulatory burden on

generators and transporters by providing

a uniform format for information

necessary for the transportation of

hazardous waste. The Agency also

believed that inclusion of blocks A

through J would provide states with

space on the form to substantially meet

the information needs of their

hazardous waste program. In fact, the

1984 rule indicates that the Agency had

chosen the optional spaces based on

received comments, including

recommendations from the (Hazardous

Materials Advisory Council) HMAC and

ASTSWMO joint task group. However,

since the promulgation of the joint EPA/

DOT uniform manifest rule EPA has

received a number of complaints from

the regulated community regarding the

burden associated with variability

among states manifest requirements. In

addition, ASTSWMO created a Task

Force (the Task Force consisted of

several State hazardous waste program

managers), which in 1990 submitted a

petition to EPA with recommendations

to modify existing manifest regulations,

including recommendations to remove

certain optional fields from the manifest

form entirely. The ASTSWMO petition

indicated that the primary objective for

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28253

4Under the Resource and Recovery Act (RCRA),

generators, transporters, treaters, storers, and

disposers of hazardous waste as defined by the

federally recognized hazardous waste codes, are

required to provide information concerning their

activities to state environmental agencies, who in

turn provide the information to Regional and

National U.S. EPA office. The Resource

Conservation and Recovery Information System

(RCRIS) is a national program management and

inventory system of RCRA hazardous waste

handlers and is used by the EPA to support its

implementation of RCRA, as amended by the

Hazardous and Solid Waste Amendments of 1984

(HSWA). The system is primarily used to track a

handler’s permit or closure status, compliance with

Federal and State regulations, cleanup activities,

waste handler inventory, and environmental

program progress assessment. Handlers can be

characterized as fitting one or more of the following

categories: treatment, storage, and disposal facilities

(TSDFs), large quantity generators, small quantity

generators, and transporters. RCRIS information is

available from ENVIROFACTS at EPA Headquarters

Web Pages: http:/www.epa.gov/enviro/html/rcris/

rcrisloverview.html.

the recommended changes to the

nation’s hazardous waste management

system is to increase uniformity among

States. EPA agrees that the manifest

form and certain manifest requirements

should be modified and that the

proposed revisions discussed in today’s

rule would increase the effectiveness of

the manifest system, through the

standardization of required and optional

fields on the form.

The Agency notes, however, that

today’s action does not reflect all

recommendations provided in the

ASTSWMO petition and some of the

modifications proposed today conflict

with some of the recommendations (e.g.,

removal of optional field H, Facility

phone number). The Agency believes,

however, these changes are necessary

because, among other reasons, EPA has

proposed to include additional blocks

on the form for special shipment waste

(i.e., emergency response information,

rejected loads, container residues, and

international shipments) to better track

these shipments from cradle to grave.

(See sections VI of this preamble for

container residues, rejected loads, and

section IV.B for international

shipments.)

Since the regulated community,

including some of the participants of the

ASTSWMO petition prefer a one page

81⁄2 by 11′′ manifest form (see page 35

of the ASTSWMO petition), the

inclusion of these elements on the

proposed new form would make it

extremely difficult to ensure that these

additions, which the Agency believes

needs to be added, as well as other

proposed changes to the form would fit

the one page 81⁄2 by 11′′ format. The

Agency believes, however, that today’s

proposed rule is consistent with the goal

of the ASTSWMO petition’s

recommended changes. Further

explanations regarding the removal of

blocks A through K from the form and

combining block J with Item 15 are

provided below.

Item A—State Manifest Document

Number. EPA proposes to remove the

State Manifest Document Number and

replace it with a mandatory federal field

entitled ‘‘Manifest Tracking Number.’’

EPA understands the importance of a

unique tracking number for States that

actively track manifests and therefore,

would provide a single block in which

a unique number would be placed. EPA

proposes to delete the old federal

document number (which consisted of

the generator’s EPA ID number and a

five-digit number assigned by the

generator) and the old Item A and

replace it with a single federal block

called the Manifest Tracking Number.

Printers of the manifest would be

required to preprint a unique tracking

number on each manifest. Forms

printers would register with EPA for

approval of a unique prefix and of their

(sequential) numbering system.

Although EPA is removing the state

manifest document number, its

replacement would allow states to

continue to request additional

information about the shipment. See

section IV.A for further details.

Item B—State Generator’s ID. EPA

proposes to remove the State

Generator’s ID block because EPA

believes that most States no longer use

the State Generator ID number. The

ASTSWMO petition supports this and

indicates that while some states do use

state ID’s, the use of the State ID number

is limited and has no meaning in other

states. The Agency believes that those

States that currently use information

from the State ID Block can obtain

equivalent information with the

generator’s EPA ID number. The two

numbers provide equivalent information

about the generators identity,

presumably a State could use the EPA

ID number to obtain generator

information by linking into the Resource

Conservation Recovery Information

System 4 (RCRIS) with the EPA ID.

Therefore, a State that uses the State

Generator ID number for tracking

purposes should be able to use an EPA

ID number as the site specific identifier,

by converting their current database

system to EPA ID numbers. The

ASTSWMO petition also states that the

‘‘wave of the future’’ would be toward

converting to EPA ID numbers as site

specific identifiers.’’ EPA agrees that the

EPA ID number provides site-specific

information and believes that the EPA

ID should replace the State ID number

on the manifest form.

Item C—State Transporter’s ID and

Item E—State Transporter’s ID (for

second transporter). EPA proposes to

remove Items C and E (State

Transporters ID for first and second

transporters) from the form for the same

reasons mentioned above regarding

generator EPA ID numbers. The

manifest instructions also require a

transporter to enter his/her EPA ID

number on the form. Since hazardous

waste transporters are required also to

enter EPA ID numbers on the manifest

form, States should be able to use the

EPA ID number as a transporter

identifier instead of the State

Transporter ID number.

In addition, EPA is proposing to

remove the Transporter ID number from

the form because it believes that a large

number of States use the State

Transporter ID number field for

purposes other than its original use. The

ASTSWMO petition indicates that many

States require waste handlers to record

the license plate numbers of transporter

vehicles in the Transporter ID. number

block.

Item D—Transporter’s Phone and

Item F—Transporter’s Phone (for second

transporter). EPA proposes to remove

the transporter’s phone number blocks

for a few reasons. First, the generator

and the TSDF both have direct contact

with the transporter and would likely

have other means of obtaining this

information. In addition, a State could

obtain the name and phone number of

a company contact person from RCRIS.

Third, the ASTSWMO petition indicates

that the Transporter phone number is

most important for emergency response

purposes. However, the number

typically provided in this block may not

be manned 24 hours a day, and thus, is

not appropriate as an emergency contact

number. As mentioned in Section IV.E.

of this preamble, EPA is proposing to

designate one space on the manifest for

Emergency Response information which

would require an emergency response

phone number. Therefore, the Agency

believes that the transporter phone

number is no longer needed on the

manifest.

Item G—State Facility ID. EPA

proposes to remove the State Facility ID

number because the number duplicates

information provided by the federal

requirement to enter the EPA ID number

on the manifest. The TSDF’s EPA ID

number provides information regarding

the TSDF’s identity, location, and waste

management practices and this

information can be accessed from RCRIS

by using the federal EPA ID number.

The Agency believes that States that

currently use the State Facility number

to gather information about the TSDF

28254 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

could get this information from RCRIS.

The accessibility of information about

receiving facility reduces the need for

the State Facility ID number on the

manifest form.

Item H—Facility Phone. EPA proposes

removing the facility phone number

block from the manifest form. Both the

ASTSWMO petition and the Negotiated

Rulemaking committee supported

keeping this phone number on the

manifest form because the generator

may need it to follow up with the TSDF

about lost shipments, etc. However, the

Agency believes that the phone number

is not necessary on the manifest because

the generator can easily obtain this

information from company phone lists

and business cards. The transporter is

also expected to have regular contact

with the TSDF and customarily devises

a mapping plan separate from the

manifest containing directions and

telephone numbers. Further, by adding

an emergency response information

block to the form (See discussion in

section IV.E) and retaining the

generator’s phone number, vital

information about the shipment can be

readily obtained, eliminating the need

for the Facility Phone number block.

Item J—Additional Descriptions for

Materials Listed Above & Item 15—

Special Handling Instructions and

Additional Information. EPA is

proposing: (1) To remove item J and to

combine information normally entered

in Item J with the Special Handling

Instructions and Additional Information

Block (Item 15); (2) to modify the

Special Handling Instructions and

Additional Information Block by

designating it as Item 14 on the new

form; and (3) to modify the manifest

instructions for Item 15, allowing for

information normally placed in Item J to

be placed in new Item 14. The new

block would be renamed Additional

Descriptions and Special Handling

Instructions are currently provided in

the Appendix to 40 CFR Part 262. The

Agency believes these changes are

necessary because they result in a form

with more space to accommodate new

fields without significantly reducing the

ability to provide additional information

on the manifest.

Today’s proposal removes the

instruction, for international shipments,

that requires generators to enter the

point of departure (City and State) for

those shipments destined for treatment,

storage, or disposal outside the

jurisdiction of the United States. This

requirement is no longer necessary

because EPA has added separate space

on the form, Block 16, to enter export

information. (See Section IV.B for

further detail).

In addition, today’s proposal removes

the instruction that prohibits states from

requiring additional, new, or different

information in the old Block 15. The

removal of this instruction is necessary

since the proposal would allow

information previously entered in Item

J (a state optional block normally used

for additional state optional

information) to be entered in the new

Item 14. Today’s rule does not change

the current manifest instruction under

Item 15, which states that the space

under Item 15 may be also used to

indicate special transportation;

treatment, storage, or disposal

information; and/or bill of lading

information. Today’s action merely

moves this instruction to Item 14 of the

new form. This instruction would be

applied to new Item 14, and an addition

made to allow state information to also

be entered. The proposal would restrict,

however, the types of information that

States could require generators to enter

in Item 14. A State would only be

allowed to require generators to enter

into Item 14, information relevant to the

waste shipment for which there is no

specific space on the manifest. Thus,

generators may use Item 14 to record

information such as chemical names,

constituent percentages, physical state,

and waste management method. With

the exception of information that States

might require, generators may only use

Item 14 to enter the following

information:

• Universal waste shipments;

• Additional waste codes;

• Alternate facility designation;

• Name, address, and phone number

of any person other than the person

identified in Item 4 (Generator’s Name,

Mailing Address, and Phone Number)

preparing the manifest;

• Name, address, phone number, and

EPA identification number of any

person who shares generator

responsibilities (i.e., co-generators) with

the person identified in Item 4

(Generator’s Name, Mailing Address,

and Phone Number); and

• To reference the ‘‘old’’ manifest

tracking number.

The new Additional Descriptions and

Special Handling Instructions block

may also be used by transporters to

indicate that they have combined or

divided loads at transfer facilities and to

document new or combined manifests

and other transportation related

information.

4. Why Is EPA Proposing To Amend

Items 15 & J of the Old Form?

EPA is proposing to combine Items 15

& J because the proposed additional

elements to the form such as Item 16

(International Shipments), necessitate

that EPA restructure the form so that it

does not exceed the one page 81⁄2 by 11′′

format. In addition, the ASTSWMO

petition recommended that EPA

combine the two optional fields into one

block. Also, combining the two boxes

reduces the number of spaces provided

for narrative information that is not

consistently entered and that cannot be

easily entered into a computer database.

5. What Regulations Would be Affected

by Reducing the Number of State

Optional Blocks and Combining Items J

and 15 To Create New Item 14?

EPA would revise § 271.10(h) to

conform to the proposed revisions

mentioned above. These revisions

include:

• Modifying § 271.10(h)(1);

• Incorporating paragraph

§ 271.10(h)(1)(v) in § 262.21(d)(5);

• Modifying and renumbering

paragraphs §§ 271.10(h)(2)(v) and (vi) as

§§ 271.10(h)(1)(i) and 271.10(h)(1)(ii),

respectively;

• Adding new paragraph

§ 271.10(h)(1)(iii);

• Removing paragraphs

§ 271.10(h)(2)(i), § 271.10(h)(2)(ii), and

§ 271.10(h)(2)(iii);

• Removing paragraph § 271.10(h)(2)

(iv).

• Modifying and renumbering

paragraph § 271.10(h)(2)(vii) as

§ 271.10(h)(2);

• Adding new paragraph

§ 271.10(h)(4); and

• Adding new paragraph

§ 271.10(h)(5).

In addition, today’s rule modifies 40

CFR 271.10(j)(1) to conform to the

changes made to the Waste

Minimization certification. For further

details on this revision, please refer to

section IX of this preamble.

6. EPA Invites Comment on Today’s

Proposal to Reduce the Number of State

Optional Fields on the Manifest

EPA is specifically requesting

comment on the following issues:

• EPA has always required the

generator’s mailing address on the

manifest form. Some states have

expressed interest in requiring the

physical site address of the generator on

the manifest, where that address differs

from the mailing address. However, EPA

is not inclined to add mailing address

information because of increased

burden, redundancy with the

generator’s EPA identification number

(i.e., states should be able to obtain the

physical site address using the EPA

identification number), and lack of

space on the manifest form. The Agency

is requesting comments on whether the

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28255

site address should be added to the

manifest form and if so, whether it

should be used in addition to or in lieu

of the mailing address.

• With the elimination of most of the

state optional fields, the only state

optional fields that would continue to

be included on the manifest are (1)

federal and state waste codes (new

Block A—see Section I below for an

explanation), and (2) BRS system type

codes (new Block B—see Section H

below for an explanation). The Agency

requests comment on whether it would

be easier on the regulated community,

states, etc. to make these two fields

mandatory instead of continuing to use

them as state optional fields. If so,

would further standardizing the

manifest in this way offset any burden

increase from making those two fields

mandatory? The Agency also requests

comment on whether generators

complete these two fields regardless of

whether States require it as part of their

State program?

H. Block K Coding System

1. How Would the Requirements for the

Codes Used in Block K (Handling

Codes) Change?

(Note that the form would be

renumbered and Block K (Handling

Codes) become Block B (renamed

Biennial Report System Type Codes)

and be moved to the bottom of the

manifest to the section that is filled out

by the designated facility.)

Today’s rule proposes to use Biennial

Report system (BRS) type for the

completion of new Block B and to

change the name of new Block B to

Biennial Report System Type Codes

(currently Block K—Handling Codes).

This block would only be completed if

required by the generation or receiving

state. Under RCRA, large quantity

generators and TSDFs are required to

report every two years on the hazardous

waste they generate and manage. One of

the elements that generators and TSDFs

report in this Biennial Report is the

System Type Code, which describes the

way in which a waste is managed.

System type codes are mandatory data

elements on the GM (Generation and

Management) and WR (Waste Received)

Forms, which must be submitted by

Large Quantity Generators (LQGs) and

TSDFs for each RCRA hazardous waste

generated on-site in a given year. States

or EPA regional offices enter the data

from the GM Form into a computer

database that is eventually assembled

into the Hazardous Waste Report (also

known as the Biennial Report). The EPA

Regions check the quality of the data by

comparing the system type code

information on a GM Form to manifest

data. These comparisons allow Regions

to:

• Identify or resolve discrepancies;

• Target LQGs or TSDFs that did not

make a BR submission;

• Identify LQGs or TSDFs that need

assistance in improving their facility

plan;

• Examine waste minimization

activities.

Block K (new Block B) is a state

optional element of the manifest and

EPA proposes that it remain so (we

request comment on this issue below);

however, the codes used in this box

would no longer vary depending on

your state, as is the case under the

current manifest regulations. Currently,

states which require the submission of

information in this box also provide the

instructions for the codes that should be

entered, and these codes differ across

the country. Under this proposed rule,

there would be no state-specific

instructions on how to complete Block

B. Instead, only the standardized federal

version of the instructions would be

used if states require the submission of

information in this box.

This standardization should reduce

the burden related to completing the

manifest by selecting one set of codes

that would be used in every state, rather

than having the regulated community

learn several different coding systems.

By proposing to use the System Type

Codes found in the Biennial Report

instructions as the codes for Block B,

this proposed change would increase

consistency with the Biennial Report

requirements, thus, aiding in the

completion of the Biennial Report and

reducing the burden associated with the

Biennial Report.

Also as part of the proposed change

to the manifest, EPA is proposing to

change the Block B heading to ‘‘Biennial

Report System Type Codes for Wastes

Listed Above.’’ This would avoid

confusion that might arise if the old

handling code heading (‘‘Handling

Codes for Wastes Listed Above’’) were

to remain with the new instructions for

submission of BRS system type codes.

The Biennial Report list is comprised of

65 system type codes. These codes

indicate the type of management a waste

receives (i.e., metals recovery or

incineration sludge treatment).

2. What Are the Biennial Report System

Type Codes That EPA Proposes To Use?

EPA plans to develop a new list of

system type codes for inclusion in the

2001 Biennial Report. This Biennial

Report will be published about Fall

2000. Shown below is the full list of

system type codes found in the 1999

Hazardous Waste Report Instructions

and Forms. Any changes made to those

codes during subsequent Biennial

Report periods would be adopted

accordingly.

List of System Type Codes

Metals Recovery (For Reuse)

M011 High temperature metals recovery

M012 Retorting

M013 Secondary smelting

M014 Other metals recovery for reuse: e.g.,

ion exchange, reverse osmosis, acid

leaching

M019 Metals recovery—type unknown

Solvents Recovery

M021 Fractionation/distillation

M022 Thin film evaporation

M023 Solvent extraction

M024 Other solvent recovery

M029 Solvents recovery—type unknown

Other Recovery

M031 Acid regeneration

M032 Other recovery: e.g., waste oil

recovery, nonsolvent organics recovery

M039 Other recovery—type unknown

Incineration Treatment

M041 Incineration—liquids

M042 Incineration—sludges

M043 Incineration—solids

M044 Incineration—gases

M049 Incineration—type unknown

Energy Recovery (Reuse as Fuel)

M051 Energy recovery—liquids

M052 Energy recovery—sludges

M053 Energy recovery—solids

M059 Energy recovery—type unknown

Fuel Blending

M061 Fuel blending

Aqueous Inorganic Treatment

M071 Chrome reduction followed by

chemical precipitation

M072 Cyanide destruction followed by

chemical precipitation

M073 Cyanide destruction only

M074 Chemical oxidation followed by

chemical precipitation

M075 Chemical oxidation only

M076 Wet air oxidation

M077 Chemical precipitation

M078 Other aqueous inorganic treatment:

e.g., ion exchange, reverse osmosis

M079 Aqueous inorganic treatment—type

unknown

Aqueous Organic Treatment

M081 Biological treatment

M082 Carbon adsorption

M083 Air/steam stripping

M084 Wet air oxidation

M085 Other aqueous organic treatment

M089 Aqueous organic treatment—type

unknown

Aqueous Organic and Inorganic Treatment

M091 Chemical precipitation in

combination with biological treatment

M092 Chemical precipitation in

combination with carbon adsorption

M093 Wet air oxidation

M094 Other organic/inorganic treatment

M099 Aqueous organic and inorganic

treatment—type unknown

28256 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

Sludge Treatment

M101 Sludge dewatering

M102 Addition of excess lime

M103 Absorption/adsorption

M104 Solvent extraction

M109 Sludge treatment—type unknown

Stabilization

M111 Stabilization/chemical fixation using

cementitious and/or pozzolanic materials

M112 Other stabilization

M119 Stabilization—type unknown

Other Treatment

M121 Neutralization only

M122 Evaporation only

M123 Settling/clarification only

M124 Phase separation (e.g., emulsion

breaking, filtration) only

M125 Other treatment

M129 Other treatment—type unknown

Disposal

M131 Land treatment/application/farming

M132 Landfill

M133 Surface impoundment (to be closed

as a landfill)

M134 Deepwell/underground injection

M135 Direct discharge to sewer/POTW

M136 Direct discharge to surface water

under NPDES

M137 Other disposal

Transfer Facility Storage

M141 Transfer facility storage—waste was

shipped off site without any on-site

treatment, disposal, or recycling activity

3. What are the Problems with the

Current Coding Systems Used to

Complete Block K?

There are two main problems

associated with the use of the current

coding system:

(1) Handling Code Information

Submitted in Block K is Nonstandardized. Different States request

waste handlers to complete Block K

with different information. Some States

refer to 40 CFR Parts 264 and 265,

Appendix I, Table 2 (i.e., Handling

Codes for Treatment, Storage and

Disposal Methods) and others refer to

state-created codes. The problem of nonstandardized codes submitted in Block

K is compounded when there is

interstate travel of hazardous waste.

When more than one State has its own

form, the manifest form of the

destination state is required instead of

the manifest form of the destination

state. Generators may be required to

learn and use multiple coding systems

on the manifest on a regular basis

because their wastes may cross state

lines and their operations may be

located in more than one state.

(2) Differences in Terms Creates

Problems Converting from State Codes

to System Type Codes. There are a

number of differences and similarities

among handling codes, state-created

codes and system type codes. Some

states reference or list both handling

codes and state-created codes when they

provide instructions for completing

Block K. Although the different coding

systems may be converted to system

type codes for the completion of the

Biennial Report, the conversion process

may be difficult and labor-intensive for

waste handlers and States because of

inconsistencies between the different

lists of codes and because numerous

codes may be listed. Attempts to

reconcile lists of codes may result in

code matches that are greater than oneto-one, because some states may use

more than one handling code to

describe the waste management method

used on a particular waste stream. The

conversion process is further

complicated when wastes travel

between states and industry, and states

are not familiar with the coding systems

required by other states. Also, the use of

different coding systems may impede

state and federal inspections.

4. How Can the Biennial Report System

Type Codes Help Resolve the Problems?

The Agency believes the BRS system

type codes are useful because the

regulated community is already familiar

with these codes, and that this

familiarity should increase the accuracy

of data supplied by the facility owner or

operator. In addition, some states have

indicated to EPA that any single coding

system would be an improvement over

the current multiple coding systems that

must be converted to system type codes

by LQGs, TSDFs and states to assist

them with completion of Biennial

Report forms. In December of 1997 and

January of 1998, EPA held public

meetings on the hazardous waste

manifest proposed rulemaking. Industry

and State participants both suggested,

among other things, that EPA should

consider combining the manifest data

collection activities with the Biennial

Reporting System (BRS) data collection

activities. Further, some participants

suggested that as a first step to integrate

BRS and manifest data collection, EPA

should consider requiring manifest

users to use BRS system type codes to

complete Block K on the current

manifest, instead of the handling codes

currently found in Table 2, Appendix I

of Part 264. These participants further

stated that a combination of manifest

and BRS reporting requirements, rather

than separated data collection programs,

may result in streamlined reporting and

significant burden reductions.

5. Where Would I Find a List of the

Codes to be Used in Block B?

EPA would publish the system type

codes in the following places:

—in the electronic and hard copy

versions of 40 CFR Part 262 Appendix

2-Biennial Report system type codes

(full list of the system type codes); and

—in the instructions for completing

the Biennial Report—(full list).

In addition, in the manifest

instructions for completing Block B,

EPA would refer users to the full list of

system type codes in Appendix 2 of 40

CFR Part 262 and in the Biennial Report

instructions. When the list of system

type codes change in the Biennial

Report instructions, 40 CFR 262,

Appendix 2 would also be changed.

This information would also be

available on EPA manifest website.

6. Who Would Be Affected by the

Proposal To Change Block K to Block B?

States, generators and TSDFs may be

affected by this proposal. The proposed

instructions would specify who would

be required to complete Block B.

Because TSDFs are the most familiar

with the processes that best describe the

way in which a waste is managed at

their facility, EPA is proposing that

TSDFs be responsible for completing

Block B. EPA’s preference is for TSDFs

to assume this role due to their

technical expertise and because

circumstances may warrant the need for

TSDFs to change their decisions on how

to store, treat or dispose of the

hazardous wastes they receive from

generators. Additionally, the first TSDF

(sometimes referred to as the interim

TSDF if the waste is to be stored or

treated and then sent on to another

TSDF) that receives the shipment

should be responsible for filling out

Block B because the original manifest is

often terminated at this point and a new

manifest is generated. The Agency

specifically requests comment on

whether the TSDF should be

responsible for filling out Block B of the

manifest (where required).

7. How Would Block B Be Filled Out?

One system type code per waste is

proposed to be used in Block B. Each

system type code in Block B should be

clearly linked to the waste it describes

in Item 10, ‘‘U.S. DOT Description

(Including Proper Shipping Name,

Hazard Class, ID Number, and Packing

Group).’’ Specifically, the BRS system

type code entered in ‘‘field a’’ of Block

B should correspond to the U.S. DOT

description information provided in

‘‘item 10a’’ of the form. Similarly, BRS

system type codes entered in ‘‘fields b,

c, and d’’ of Block B should correspond

to the U.S. DOT description information

entered in ‘‘fields 10b, c, d,’’

respectively. If the space in Block B is

insufficient for listing system type

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28257

codes, then new Item 14, ‘‘Special

Handling Instructions and Additional

Information,’’ may be used.

Block B should be completed as

follows:

B. Biennial Report System Type Codes

for Wastes Listed Above

a. (enter system type code for first waste

code listed in Block 10a)

b. (enter system type code for second

waste code listed in Block10b)

c. (enter system type code for third

waste code listed in Block 10c)

d. (enter system type code for fourth

waste code listed in Block 10d)

8. How Would the Regulations Change?

The manifest form would be changed

to include a new box entitled ‘‘Biennial

Report System Type Codes,’’ and the

manifest instructions in the Appendix

to Part 262 would be changed to instruct

the TSDF to use the Biennial Report

system type codes. New instructions

would be added instructing those

TSDFs completing Block B to use

Biennial Report codes and a list of the

Biennial Report system type codes

would be added to 40 CFR part 262 as

Appendix 2.

The Agency is also considering two

alternatives to today’s proposal. The

first alternative considers using a new

list of codes instead of the full list of

system type codes from the existing

Biennial Report System. EPA could

develop a new simplified list of codes

that are similar to the current categories

for system type codes found in the

Biennial Report. Current BRS system

type codes describe the type of

hazardous waste management system

used to treat or dispose a hazardous

waste. One example of system type

codes for a hazardous waste

management category is ‘‘Solvents

Recovery,’’ which has within it, a set of

unique codes for fractionalization/

distillation, thin film evaporation,

solvent extraction, other solvent

recovery, and solvent recovery. The

alternative system would only include

the general category found in the system

codes list and if ‘‘solvent recovery’’ is

taken as the example, would omit the

unique codes within ‘‘Solvent

Recovery.’’ Thus, a facility using solvent

extraction to treat a hazardous waste,

would only enter ‘‘Solvent Recovery.’’

The second alternative approach EPA

is considering would be to require the

generator to complete new Block B of

the manifest, rather than the TSDF. The

Agency is considering whether the

information provided by the generator is

of greater use than similar information

provided by the TSDF.

9. EPA Invites Comment on Today’s

Proposal and Also Welcomes New Ideas

for Manifest and System Type Code

Burden Reduction

EPA is specifically requesting

comment on the following issues

(a) As an alternative to today’s

proposal of using the full list of system

type codes from the existing Biennial

Report System, would industry, states,

and other stakeholders prefer a new list

of codes that are similar to the current

categories for system type codes?

(Examples of categories include

‘‘Solvents Recovery’’ and

‘‘Incineration.’’)

(b) As an alternative to requiring the

TSDFs to complete Block B of the

manifest, should EPA require the

generators to complete that section? If

so, what are the advantages? How would

generator accountability for wastes from

‘‘cradle-to-grave’’ and completion of the

Biennial Report be impacted? What

other impacts would be expected?

(c) Would industry, states, and other

stakeholders prefer standardizing the

handling codes from Table 2 of

Appendix I, Part 264 and use the

standardized handling codes for the

completion of new Block B?

(d) Should the entry of information in

new Block B of the manifest remain an

optional field as proposed, or should it

be mandatory?

(e) In looking at manifest and Biennial

Report burden together, could an

increase in manifest burden lead to or

be offset by Biennial Report burden

reduction? (For example, if Block B

were to change from a state optional

element to a mandatory federal element,

would manifest burden increase in the

short run and Biennial Report burden

decrease in the long run?) Which areas

of the manifest and Biennial Report

should EPA consider or further analyze

to achieve net burden reduction in the

long run?

I. Block I Waste Code System

1. How Would the Requirements for the

Codes Used in Block I Change?

(Note, that the form would be

renumbered and Block I (Waste No.)

become new Block A (Waste Codes).)

EPA proposes to provide additional

space in this optional block so that

waste handlers can enter state and

federal waste codes in separate locations

under new Block A. EPA is also

proposing to change the name of this

block.

Block A would be divided into two

sections—a section for entering federal

waste codes and another for entering

state waste codes. The top section of

Block A would allow reporting of three

federal waste codes and the bottom

section would allow reporting of three

state waste codes. If states require the

completion of Block A, then the waste

handler must enter Federal waste codes

in the appropriate section of Block A

according to a hierarchy, with the

highest toxicity waste appearing first to

alert users of the manifest of their

presence.

EPA believes that in most cases six

waste codes would be sufficient to

adequately describe the waste in Block

A. However, it also may be appropriate

at times to report more than six codes

for a particular waste (for example, a lab

pack could contain more than 6 waste

codes). For these specific circumstances,

the generator would use both Item 10,

‘‘U.S. DOT Description (Including

Proper Shipping Name, Hazard Class, ID

Number, and Packing Group)’’ and

proposed Item 14, ‘‘Special Handling

Instructions and Additional

Information,’’ to describe such a waste.

EPA is also changing the title of Block

I from Block I ‘‘Waste No.’’ to Block A

‘‘Waste Codes’’ to more accurately

reflect what should be entered in this

block and more commonly used

terminology. This block would need to

be completed only if a state required it.

The proposed format for Block A is

shown below:

A. WASTE CODES

Federal Waste Code, four partitions .................. Federal Waste Code, four partitions ................ Federal Waste Code, four partitions.

State Waste Code, four partitions ...................... State Waste Code, four partitions ................... State Waste Code, four partitions.

2. What Is the Problem With Current

Block I Reporting Procedures?

Under the current manifest system,

waste handlers can use the manifest

form for shipments where hazardous

and non-RCRA wastes are a part of the

same shipment. This may occur because

some states regulate non-RCRA waste as

hazardous waste and prefer that

generators indicate state regulated

hazardous waste shipments on the same

manifest form. Also, these states may

28258 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

require that waste handlers enter the

federal waste codes for the RCRA

regulated wastes and state waste codes

for the State-only regulated hazardous

waste in Item I of the current form.

Federal and state waste codes are

important because they provide a range

of useful information about waste

shipments and assist states with

enforcement, generators with describing

a hazardous substance in accordance

with DOT regulations, and TSDFs with

determining whether a waste can be

accepted under its permit. However,

under current reporting procedures,

such benefits are diminished due to the

format of Block I and the lack of clear,

uniform instructions. Block I does not

distinguish between federal and state

sections, nor does it make clear that

both federal and state waste codes may

be reported. Also, states provide varying

instructions, if any, on how to fill out

Block I. The ASTSWMO petition

addressed this issue and considered,

among other things, an option for states

to create a separate manifest for

reporting ‘‘non-RCRA regulated waste’’

but the petition did not recommend this

option. Explanations provided in the

petition for not creating a separate

manifest rationalized that one manifest

ensures uniformity and that a separate

manifest would cause confusion for

generators because a separate form

would require a separate set of

instructions, numbering, etc. Further,

waste handlers would have to become

familiar with several manifest forms, if

states required a separate manifest. The

Agency agrees with these reasons and

also believes that generators would

prefer completing one manifest instead

of two for combined shipments of

hazardous and state-regulated

nonhazardous wastes.

3. Who Would Be Affected by This

Proposal?

States and waste handlers (i.e.,

generators) would be affected by this

proposal. Block A is a state optional

element of the manifest and would

remain so, but there would no longer be

a need for state-specific manifests with

varying instructions on how to complete

Block A. The federal manifest would

contain standardized instructions for

submission of federal and state waste

codes in Block A. Generators would

complete Block A when required by the

generator state, the destination state or

both states. EPA believes that this

change would not reduce the state’s

ability to collect this information, and

the standardized format (along with the

elimination of state-specific manifests)

would reduce the time required to

complete this block.

4. How Would Block A Be Filled 0ut?

When the generator state, the

destination state or both states require

completion of Block A, several reporting

scenarios may apply, including use of

Item 10 and Item 14. In general, Block

A should be used first. Examples follow:

Reporting Waste Codes in Item 10 of

the manifest: ‘‘US DOT Description

(Including Proper Shipping Name,

Hazard Class, and ID Number)’’ and in

Item 14: ‘‘Special Handling Instructions

and Additional Information’’. Federal

waste codes (either the listed waste code

or the code for a hazardous waste

characteristic) would be reported in

Block A, as applicable. Federal waste

codes also may be reported in Item 10

if the generator wants to include that

information in Block 10. If more space

is needed to report federal waste codes,

then Item 14 may be used. Also, Item 14

may be used to report additional state

waste codes.

Reporting Federal Waste Codes

According to Toxicity. Federal waste

codes would be reported according to a

hierarchy of the highest toxicity waste

appearing first and less toxic wastes

appearing thereafter. The proposed

hierarchy reflects the Negotiated

rulemaking committee’s

recommendation that wastes with the

highest toxicity should be listed first

(i.e., acutely hazardous wastes) to alert

users of the manifest to their presence.

The hierarchy is listed below:

• All acutely hazardous wastes,

including all P listed wastes and all

acutely hazardous F listed wastes;

• U listed wastes (toxic);

• K listed wastes (specific sources);

• Non-acute F listed wastes (nonspecific sources); and

• D wastes (characteristic).

Although today’s proposal would

require waste handlers to enter waste

codes in Block A according to the

proposed hierarchy, EPA understands

that wastes that are ignitable or reactive

may be better described (for safety

reasons) if the waste codes for these

characteristics are listed first in the

hierarchy. Therefore, the Agency

proposes that if a state requires waste

handlers to complete the new Block A

on the manifest, then waste handlers

must enter Federal waste codes in block

A in accordance with the hierarchical

system, unless the wastes in question

are ignitable or reactive. In such

situations, the Federal waste codes for

the ignitable or reactive wastes may be

entered first in Block A, if the state

allows the generator to do so.

EPA notes that the proposed

hierarchical system would apply to

Federal waste codes only. EPA did not

propose the hierarchical system for state

waste codes because it had insufficient

information about state waste codes.

Therefore, the Agency believes that it

would not be appropriate to propose a

standardized coding system for stateregulated wastes and believes that it is

more appropriate for generators to

contact States directly, if necessary,

regarding the assignment of state waste

codes for a particular state-regulated

waste. The Agency would place,

however, a list of waste codes for each

state on its EPA website so that waste

handlers can obtain state waste code

information quickly. EPA, however,

recommends that generators contact

both its state and the consignment state

to obtain further instructions to

complete Block A.

Reporting Federal Waste Codes

According to Toxicity. Hazardous waste

that is described by more than one

federal waste code within one of the P,

U, K, F and D categories would be listed

according to toxicity. EPA believes that

on occasion, some hazardous waste

shipments may contain waste codes

from the same hierarchy category. In

such cases, the waste handler should

list waste codes from the same category

in the order which he/she believes is

most representative of the waste’s

attributes. The Agency requests

comment on whether the hierarchy

approach is the most appropriate

method to listing wastes in Block A.

Reporting State Waste Codes. EPA is

proposing that the first state box would

represent waste regulated by the

generator state and the second state box

would represent waste regulated by the

destination state. State waste codes

would be reported as follows:

• If the waste is regulated by the

generator state or the destination state,

then enter the generator state waste code

in the state box and the destination state

waste code in the second box:

A. WASTE CODE

(Generator State Waste Code) .......................... (Destination State Waste Code) ......................

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28259

If additional space is needed to report

state waste codes, use Item 14, ‘‘Special

Handling Instructions and Additional

Information.’’

5. How Would the Regulations Change?

The instructions for the manifest

found in the 40 CFR 262 Appendix

would change to include the Federal

waste code hierarchy and the

instructions for completing Block A.

Also, Block A would be relabeled

‘‘Waste Codes’’ on the manifest form.

6. EPA Invites Comment on the

Following Questions Related to the

Proposed Changes to Block A.

• Under today’s proposal, would the

quality of waste code reporting improve,

while keeping manifest burden to a

minimum?

• Are the proposed format of Block A

(i.e., space for 4-digit waste codes) and

new standardized procedures for

reporting waste codes clear? Are there

alternatives that EPA should consider?

• Although today’s rule does not

propose to establish generic waste codes

for lab packs, spent carbon, and

incinerator ash, EPA may pursue this in

the future as resources permit and

welcomes comment on codification of

such codes.

• What alternatives to the proposed

toxicity hierarchy would you suggest

Unmanifested Waste Reporting

1. How Is EPA Changing the Way TSDFs

Report Unmanifested Waste?

Today’s rule proposes changes in the

way a TSDF may submit the

‘‘Unmanifested Waste Report’’ to the

EPA Regional Administrator, which is

required within 15 days after accepting

the waste at a TSDF. Currently, EPA

requires TSDFs who accept

unmanifested waste to prepare an

‘‘Unmanifested Waste Report’’ (form

8700–13B) for waste that should

normally be shipped using a manifest.

(See 40 CFR 264.76 and 265.76) Under

this proposal, a typed, handwritten, or

electronic note may be submitted

instead of this report. The typed,

handwritten, or electronic note must be

legible, and must contain the following

information:

(a) The EPA identification number,

name, and address of the facility;

(b) The date the facility received the

waste;

(c) The EPA identification number,

name, and address of the generator and

the transporter, if available;

(d) A description and the quantity of

each unmanifested hazardous waste the

facility received;

(e) The method of treatment, storage,

or disposal for each hazardous waste;

(f) The certification signed by the

owner or operator of the facility or his

authorized representative; and

(g) A brief explanation of why the

waste was unmanifested, if known.

2. What Is Unmanifested Waste?

Unmanifested waste is hazardous

waste that a TSDF accepts from an offsite source without the required

accompanying manifest or shipping

paper (in the case of rail and some water

shipments). Regulations governing

unmanifested waste found at 40 CFR

264.76 and 265.76 should not be

confused with similar reporting

requirements under regulations for

manifest discrepancies found at 40 CFR

264.72 and 265.72 and exception

reporting found at 40 CFR 262.42.

3. What Is the Problem With Current

Requirements for Unmanifested Waste

Reporting?

Current regulations found at 40 CFR

264.76 and 265.76 require TSDFs to

submit EPA form 8700–13B, which

must be designated ‘‘Unmanifested

Waste Report.’’ However, EPA

announced in the January 28, 1983 FR

that it was deleting EPA form 8700–13B

and its predecessor, EPA form 8700–13,

which had appeared in the May 19,

1980 FR. Although both forms were

linked to annual reporting requirements

at that time and were supposed to be

adapted for unmanifested waste

reporting, EPA deleted them due to the

change from annual to biennial

reporting. EPA never published a new

form for unmanifested waste reporting

and the form now required for biennial

reporting, EPA form 1300–A/B,

‘‘Hazardous Waste Report Instructions

and Forms,’’ is not adaptable for

unmanifested waste reporting. Although

EPA never published a replacement

form for reporting unmanifested waste,

the regulations still require this form

which is generally unavailable to those

seeking a copy.

4. How Do Regulations for the

Unmanifested Waste, Manifest

Discrepancies, and Exception Reporting

Compare?

Some aspects of the reporting

requirements are similar. See the table

below for a comparison.

COMPARISON OF REGULATIONS—UNMANIFESTED WASTE REPORT, MANIFEST DISCREPANCIES, AND EXCEPTION

REPORTING

Regulation Description Synopsis of reporting requirements

Unmanifested Waste Report 40 CFR 264.76

and 265.76.

Unmanifested waste is hazardous waste that

a TSDF accepts without an accompanying

manifest or shipping paper, and which is

not exempt from the manifest requirement.

Current: TSDF must submit to the EPA Regional Administrator an unmanifested waste

report on EPA form 8700–13B within 15

days after receiving the waste.

Proposed: TSDF must submit an

unmanifested waste report using a typed,

handwritten, or electronic note submitted to

the EPA Regional Administrator within 15

days after receiving the waste.

Manifest Discrepancies 40 CFR 264.72 and

265.72.

Manifest discrepancies are differences between the quantity or type of hazardous

waste designated on the manifest or shipping paper and the quantity or type of

waste actually received at a facility. We are

proposing to include container residues and

rejected loads as manifest discrepancies.

TSDFs that receive wastes with any significant manifest discrepancy must attempt to

reconcile the discrepancy upon discovery

and report the discrepancy to the EPA Regional Administrator if the discrepancy is

not resolved within 15 days after receiving

the waste. We are proposing that TSDFs

that reject a load or send a residue off-site

would have to prepare a new manifest as

instructed under proposed §§ 264.72(c–d)

and 265.72(c–d).

28260 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

COMPARISON OF REGULATIONS—UNMANIFESTED WASTE REPORT, MANIFEST DISCREPANCIES, AND EXCEPTION

REPORTING—Continued

Regulation Description Synopsis of reporting requirements

Exception Reporting 40 CFR 262.42 ................. Exception reporting is required of LQGs and

SQGs when they do not receive the return

copy of the manifest signed by the TSDF

within a specified time after the waste was

accepted by the initial transporter.

A LQG who does not receive the return copy

the manifest signed by the TSDF within 35

days after the waste was accepted by the

initial transporter must contact the TSDF to

inquire of the status of the waste. If the

LQG does not receive the return copy of

the manifest signed by the TSDF within 45

days of the date the waste was accepted

by the initial transporter, the LQG must submit an exception report to the EPA Regional Administrator. A SQG who does not

receive the return copy of the manifest

signed by the TSDF within 60 days after

the waste was date the waste was accepted by the initial transporter must also submit an exception report to the EPA Regional Administrator.

VI. Residues and Rejected Loads: How

Must These Shipments be Manifested?

1. What are Residues and Rejected

Loads?

Residues

A residue is the hazardous waste that

remains in containers such as drums

and in vehicles used for transport (such

as tanker cars or box cars) after most of

the contents of the container have been

removed. These residues may be

difficult to remove because the contents

may have congealed and the receiving

facility may not have the equipment to

completely empty the container. As a

result, the container may hold more

than the regulatory threshold for

meeting the RCRA definition of

‘‘empty,’’ that is, more than 3% of a

hazardous waste in a container less than

or equal to 119 gallons, or more than

0.3% of a hazardous waste in a

container greater than 119 gallons, and

must be managed as hazardous waste.

(See section IV.C of this rule for a

discussion of the proposed changes

regarding the term ‘‘bulk packaging.’’)

Rejected Loads

A rejected load is a shipment of

hazardous waste that a facility receives,

but cannot accept, either because of

restrictions in the facility’s permit, or

due to capacity limitations. A rejected

load includes all shipments a facility

rejects, in whole or in part, whether

rejection occurs before or after the

facility has signed the manifest. EPA

does not view shipments that are

undeliverable for reasons other than

rejection by a party at the designated

facility as being covered by the term

‘‘rejected loads.’’ At 40 CFR 263.21(b) of

the current regulations, there is a

provision that addresses hazardous

waste shipments that cannot be

delivered by the transporter. This

provision was included in the

regulations to deal with emergencies

that prevented a delivery to a designated

facility, such as a labor strike or fire that

causes the designated facility to close.

The current § 263.21(b) allows a

transporter to deal with such emergency

events by contacting the generator for

further directions and then revising the

manifest according to the generator’s

instructions. These ‘‘undeliverable

waste’’ events that do not involve a

rejection by the destination facility

would continue to be addressed by the

existing regulatory provision, which

today’s proposal would recodify as 40

CFR 263.21(b)(1). EPA is not reopening

or reconsidering the current § 263.21(b)

provisions for undeliverable waste;

however, we are proposing a new

section to § 263.21(b) to clarify the

transporter’s responsibilities for both

‘‘undeliverable’’ waste and ‘‘rejected

loads. This proposal would also clarify

the procedures to be followed by the

rejecting designated facility in

connection with noting the rejection on

the original manifest, and preparing a

new manifest to direct the rejected

shipment on to its next destination.

2. What Is EPA Proposing Related to

Residues and Rejected Loads?

EPA proposes to improve the tracking

of these hazardous waste shipments by

adding new data elements on the

manifest form for identifying rejected

wastes and residues, and by clarifying

the requirements and procedures for

tracking these wastes with the manifest.

The proposed rule addresses both the

manifest procedures that would track

rejected wastes and residues to

alternative facilities, as well as the

procedures for dealing with the rare

occasions when a facility must return

rejected wastes or container residues to

the generator. In all such cases, the new

regulations would require facilities to

note information about the rejected

waste or regulated residue on the

original manifest, to sign the original

manifest certification, and to issue a

new manifest to continue the shipment

of the rejected load or residue to another

off-site destination. EPA is proposing to

modify the discrepancy block on the

manifest to provide more explicit

tracking features for regulated residues

and rejected wastes. Space would be

provided to identify the material

affected by the discrepancy and the

reason for the discrepancy. In addition,

the facility would cross-reference the

manifest tracking number for the new

shipment on a space provided for this

purpose on the discrepancy block of the

original manifest. On the new manifest,

the facility would also reference the

‘‘old’’ manifest tracking number in the

Special Handling Block. The

discrepancy space and facility

certification on the new manifest would

be reserved for use by the next facility,

if necessary (e.g., if the shipment is

rejected a second time).

3. To Whom Do These New

Requirements Apply?

The new requirements apply to you if

you are:

• A ‘‘designated facility’’ that cannot

completely ‘‘empty’’ a container to

‘‘RCRA empty’’ standards in § 261.7(a);

and

• A TSDF or a hazardous waste

recycler who must reject a shipment of

hazardous waste, in full or in part; and

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28261

• A generator who must receive a

returned shipment of a residue or

rejected load when there is no alternate

facility to which it may be sent.

4. Where Would the Proposed

Requirements for Tracking Rejected

Wastes and Residues Be Codified?

Today’s proposal would result in

modifications to several existing

regulatory provisions. First, the

proposal would modify 40 CFR 264.71

and 264.72 (40 CFR 265.71 and 265.72

for interim status facilities) so that these

provisions provide more explicit

requirements for tracking rejected

wastes and regulated container residues.

The proposal would accomplish this by

clarifying in § 264.71(a) that a facility

must sign the facility owner or operator

certification on the manifest for both

waste receipts and waste rejections. EPA

emphasizes that the facility certification

attests to the receipt of the hazardous

wastes described on the manifest,

except as noted in the discrepancy

space. This proposal would clarify that

residues and rejected wastes, including

full or partial load rejections, are

discrepancies to be reported on the

discrepancy space. So, facilities would

be required to sign the owner or

operator certification on every manifest

relating to shipments brought to a

facility for delivery, either to

acknowledge receipt of all the materials

on the manifest, or to acknowledge that

those materials identified in the

discrepancy space (including rejected

wastes and residues) were not received

for management at the facility.

The proposal would modify § 264.72

(§ 265.72 for interim status facilities) to

reflect the changes proposed to the

discrepancy space of the manifest form.

The form would be revised to include

new data fields in the discrepancy space

to track rejected wastes and residues.

So, § 264.72(a) would be revised to

clarify that the scope of the term

‘‘manifest discrepancies’’ would be

broadened to include not only the

significant differences in waste

quantities or types that are the subject

of the current discrepancy regulation,

but also rejected wastes and regulated

container residues. The current

regulation’s requirements for

identifying, reconciling, and reporting

‘‘significant discrepancies’’ would be

retained in proposed § 264.72(b) and (c),

which would address these as

‘‘significant differences’’ in quantity or

in type of wastes. The procedures for

addressing rejected wastes or regulated

container residues as manifest

discrepancies would appear in new

§ 264.72(d) and (e) for permitted

facilities, and in new § 265.72(d) and (e)

for interim status facilities. For those

instances where an alternative facility is

not available to receive a rejected waste

or residue shipment, proposed

§§ 264.72(f) and 265.72(f) would add

procedure governing the return of these

wastes to generators. These procedures

are discussed below in greater detail.

EPA is also proposing to amend 40

CFR 263.21(b), to add language

clarifying the distinction between the

transporter responsibilities for

‘‘undeliverable’’ wastes that are not

deliverable because of emergencies that

prevent delivery, and for rejected

wastes. As we discussed above, EPA

would retain as § 263.21(b)(1) the

existing transporter requirements that

apply to shipments that cannot be

delivered because of an emergency, e.g.,

a strike, fire, or similar emergency event

which closes the designated facility’s or

next transporter’s operations or which

otherwise precludes the transporter

from delivering the waste. In such

emergency cases, the transporter that

cannot deliver the waste shipment to

the designated facility, alternate

designated facility, or next designated

transporter, would still be required to

contact the generator for further

directions and to revise the manifest

according to the generator’s

instructions. EPA is not reconsidering,

reopening, or requesting comment on

these existing requirements. The

proposal would merely recodify this

existing provision at § 263.21(b)(1).

Proposed § 263.21(b)(2) would

specifically address transporters’

responsibilities respecting rejected

wastes. Transporters would be required

under this proposal to obtain the facility

owner’s or operator’s signed and dated

certification on the manifest identifying

the rejection. The transporter would

also be required to retain one copy of

this manifest, and to give any remaining

copies of the manifest to the rejecting

TSDF, so that they could be processed

in accordance with the new procedures

proposed for facilities rejecting wastes

at § 264.71, 72.

5. Why Is EPA Proposing These

Changes?

EPA is proposing these changes in

response to stakeholder

recommendations made during the prior

Negotiated Rulemaking and an audit

conducted by EPA’s Office of Inspector

General (OIG) in 1995. In the final

agreement for the RCRA Manifest

Regulatory Negotiation, several

recommendations related to residues

and rejected loads were made. For

residues, the committee recommended

that residues in cargo tanks and tank

cars that are not RCRA-empty should be

manifested as partially rejected loads by

the facility that received the shipment.

For rejected loads, the committee came

up with different recommendations

depending on whether the rejected load

was rejected in full or in part, and

whether the TSDF had signed the

manifest or not. Generally, the

committee recommended that rejections

be noted in the discrepancy box, that

rejected waste should in some instances

be allowed to be returned to the

generator, and that the generator should

be involved in the decisions on where

rejected wastes should be sent.

The OIG’s audit identified several

areas where the Agency could make

changes to improve the manifest system

so that the manifest system provides

generators, EPA, or the states with the

means to track hazardous waste

shipments to their final destinations.

The OIG audit provided two specific

recommendations related to residues

and rejected loads: (1) Require that

original generators and manifest

numbers be referenced on any new

manifests created for reshipments of

hazardous waste, and (2) ensure that

generators be consulted when partial or

full loads of hazardous wastes are

rejected or when hazardous wastes

remain in ‘‘non-empty’’ containers. EPA

believes the changes suggested by the

Negotiated Rulemaking stakeholders

and the OIG would improve hazardous

waste tracking. Specific reasons for

making changes in these areas are

discussed below.

Problems With Hazardous Waste

Residues Left in Containers

Hazardous waste residues are

sometimes left in containers such as

drums and in vehicles such as tanker

trucks or box cars after the waste has

been removed from the containers by

the designated facility. This can at times

represent a significant amount of

material. For example, a 6,000 gallon

tank trunk that is emptied just to the

0.3% threshold for ‘‘empty’’ would still

contain about 20 gallons of hazardous

waste. Under current regulations, a

hazardous waste container is considered

‘‘empty,’’ only if the waste has been

removed so that no more than 2.5

centimeters (1 inch) of the waste (or 3%

of the waste in containers of less than

or equal to 110 gallons (see discussion

regarding ‘‘bulk’’ packaging in Section

IV.C), or 0.3% of the waste in containers

greater than 110 gallons) remains in the

container and all waste that can be

removed by commonly employed

practices has been removed. Containers

holding acute hazardous wastes must be

triple rinsed. Acute hazardous wastes

are those waste that are considered

28262 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

highly toxic by EPA and are given the

hazard code ‘‘H’’ in the hazardous waste

lists at 40 CFR 261.31 and 40 CFR

261.33 (i.e., all P-listed wastes and

certain F-listed wastes).

When a facility cannot thoroughly

clean the container, and is unable to

manage the container properly, it must

send the ‘‘RCRA-regulated’’ container to

an alternate facility. Current regulations

do not clearly define the appropriate

manifest procedures for such a

situation—i.e., it is unclear whether the

facility should contact the generator and

whether the original manifest, or a new

manifest, is required to accompany the

shipment to the next facility. States

have developed different approaches to

dealing with these situations. As a

result, these shipments can impose

significant burdens on facilities in terms

of consulting with state regulatory

authorities and sorting out applicable

procedures. Also, a facility might

complete a new manifest for the

shipment to the alternate facility

without consulting with the generator of

the shipment. The generator might only

receive the signed manifest returned by

the first facility, but may not receive a

copy of the second manifest indicating

the ultimate disposition of the regulated

container and residue. Thus, the

generator may be left unaware of the

final disposition of the hazardous waste.

When this occurs, one of the main

purposes of the manifest—to assist

regulated entities and regulatory

authorities in tracking hazardous waste

from ‘‘cradle to grave’’—is impaired

because there is no systematic approach

for linking information about the second

shipment to the original manifest and

generator. The current regulations

require only that the facility shipping

the waste residues to the next

destination facility be apprised of the

disposition of the waste; the original

generator is not in the loop for obtaining

such information.

The changes to the manifest form and

procedures proposed here would ensure

that hazardous waste generators are

informed of and involved in decisions

concerning the ultimate disposition of

their hazardous waste, so that regulated

quantities of hazardous waste residues

can be tracked from the original

generating site to the site of ultimate

disposition.

Problems With Rejected Loads

In most situations involving off-site

transportation of hazardous waste, the

hazardous waste shipment arrives at the

designated facility without incident and

is accepted and ultimately is managed at

the designated facility. However, on rare

occasions, the owner or operator of the

designated facility cannot accept a

waste shipment. For example, the TSDF

might require the waste have a certain

British Thermal Units (BTU) level in

order to accept the waste for treatment.

If the shipment of waste does not have

the required BTU level, the TSDF might

reject the waste shipment. Other reasons

why a TSDF may not accept a hazardous

waste shipment vary, but may include

capacity restrictions at the time the

waste arrives, equipment failure, or

other unanticipated situations. The

designated facility may reject a load at

the time it arrives at the facility. The

designated facility may also reject a load

after it has signed the manifest and

accepted delivery of the waste

shipment, because current regulations

allow the facility to sign for receipt of

the waste and then test the waste at a

later time and reject it if necessary.

Current regulations do not clearly define

the appropriate manifest procedures for

either situation. As with container

residues, it is unclear whether the

facility should contact the generator and

whether the original manifest, or a new

manifest, is required to accompany the

shipment to the next facility. In current

practice, if the facility rejects all or part

of a load after having already signed the

original manifest, it may prepare a new

manifest for the rejected waste and send

it to an alternate facility without

consulting with the generator. Thus, the

original generator may be left unaware

of the final disposition of its hazardous

waste, because there is currently no

consistent approach followed for

tracking these shipments and linking

the second shipment to the original

manifest and generator. The changes to

the manifest form and procedures

proposed here would also ensure that

hazardous waste generators are involved

in decisions concerning the ultimate

disposition of their hazardous waste and

that rejected wastes can be tracked from

the generating site to the site of ultimate

disposition.

6. How Long Does the TSDF Have To

Accept or Reject the Hazardous Waste

Shipment?

While EPA does not intend that a

TSDF must test the waste before signing

the manifest, EPA expects that TSDFs

would use good business practices and

make a determination within a

reasonable time whether to accept or

reject all or part of a hazardous waste

shipment. Additionally, EPA recognizes

that some loads may be rejected after the

designated facility has signed the

manifest and taken delivery of the

waste. The Agency recognizes that the

facility’s signature on the facility

certification of receipt reflects the facts

known to the facility at that time, and

does not always mean that the TSDF has

finally accepted the waste for treatment,

storage or disposal.

7. Who Is Responsible for Deciding

Where To Send a Residue or Load

Rejected by the TSDF?

Because a hazardous waste generator

has the most knowledge about its waste

and is typically responsible for

decisions about the disposition of its

hazardous waste, EPA believes it is

appropriate to require that the

designated facility must contact the

generator for his or her decision about

the next destination for a rejected load

or residue. This approach is consistent

with the current manifest system, which

generally places the burden on

hazardous waste generators to ensure

that hazardous waste shipments arrive

at their proper destinations. See, e.g., 40

CFR 262.42 regarding ‘‘exception

reports.’’

As part of obtaining the generator’s

decision, the facility should also work

out with the generator how the waste

should be transported to the next

facility and who should be listed as the

transporter on the new manifest. If it is

not possible to locate in a timely

manner an alternative facility that can

promptly receive the waste, then the

generator may instruct the facility to

transport the hazardous waste shipment

back to the generator. EPA expects that

shipments would be returned to

generators only on very rare occasions.

The rejecting facility, in consultation

with the generator, would first have to

attempt to locate another facility that

can appropriately manage the waste

before resorting to a return shipment to

the generator.

The facility rejecting hazardous

wastes must ensure that secure custody

of the hazardous waste is maintained

while arrangements are being made to

forward the waste to another facility. In

many such situations, EPA expects that

the transporter who attempted to deliver

the rejected wastes would simply

remain at the facility’s premises and

retain custody of the rejected waste

until transportation resumes under the

new arrangements made by the facility

and generator. The transporter may

assist the facility with the arrangements

made for forwarding the rejected waste

and preparing it for transportation. In

those situations, however, where the

delivering transporter does not remain

on the facility’s premises, the rejecting

facility must take temporary custody of

the waste, and hold it at a secure

location until transportation of the

waste continues under the new

manifest.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28263

8. Must TSDFs Who Reject Waste or

Who Have a Regulated Residue Prepare

a New Manifest For the Shipment to the

Alternative Facility?

Yes. Today’s rule clarifies that a TSDF

who either rejects hazardous waste or

has a regulated residue that must be sent

off-site must prepare a new manifest for

the shipment to the alternate facility.

This clarifies conflicting policies that

have arisen under the existing

regulations. For example, differing

policies have been followed in the past,

based on distinctions between fully

rejected loads and partially rejected

loads, or on distinctions between

rejections that occur at the time of

attempted delivery of a shipment and

those that occur after the original

manifest was signed. In some instances,

current policies allowed the original

manifest to be amended, while in other

instances, the policies suggested that a

new manifest should be prepared. The

work group developing today’s proposal

concluded that existing policies in this

area were conflicting and very

confusing. The work group

recommended that one consistent

approach should govern all rejected

waste and residue shipments. Therefore,

EPA is today proposing that a new

manifest must be prepared in all cases

involving a rejected waste or a residue

shipment. The designated facility must

in all cases close out the original

manifest by noting the rejection or the

regulated residue, and then prepare a

new manifest to send the rejected waste

or residue shipment to the alternate

facility.

The designated facility would be

required to: (1) Check the rejected load

or residue box in the discrepancy block

of the original manifest; (2) sign the

facility certification on the original

manifest to certify that the waste

shipment was received except as noted

(i.e., the rejected waste or residue) in the

discrepancy block; (3) write the

manifest tracking number of the new

manifest on the space provided for this

purpose in the discrepancy block of the

original manifest; and (4) complete a

new manifest for the rejected waste or

residue. If the facility rejects all or part

of a shipment, or discovers regulated

residues, after the facility has signed

and returned the original manifest, it

would send the generator and delivering

transporter an amended copy of the

original manifest, revised to show the

rejected waste or residue information in

the discrepancy space, and showing a

new signature certifying to the facts as

amended and showing the date of the

amendment. These amended manifest

procedures would be included in

§ 264.72(g) and § 265.72(g) of today’s

proposal.

9. Whose Facility Information Would Go

in the ‘‘Generator’’ Block of the

Manifest?

Previous policies on tracking rejected

loads and residues usually required the

designated facility with rejected waste

or residues to identify itself in the

generator information block of the

manifest for the second shipment to the

alternate facility. Under this approach,

the rejecting facility would provide its

EPA ID Number in the Generator’s EPA

ID Number field, and provide its name

and address information in the

Generator information fields. When

delivering the waste to the first

transporter, the rejecting facility would

also sign the Generator’s Certification

statement. However, this approach

continues the problem of not keeping

the original generator informed of the

final disposition of its waste. This

results because the alternative facility

named as the designated facility on the

second manifest would be required

under § 264.71(a)(4) to send a copy of

the manifest to the rejecting facility, and

not the actual ‘‘generator’’ of the

hazardous waste, when closing out the

second manifest. To avoid this result,

EPA is today proposing that in those

cases where rejected waste is being

forwarded to an alternate facility, and

there has been no change in the form of

the waste—i.e., the first designated

facility performs no treatment and does

little more than hold the waste (or

repackage it) temporarily so that it may

continue in transportation—then the

original generator must be identified in

the generator information block on the

new manifest. As long as the form of the

waste has not changed and the waste

still carries the same DOT shipping

descriptions that it carried when it was

brought to the rejecting facility’s site, a

new waste has not been generated by

the rejecting designated facility. The

designated facility must, of course,

consult with the generator, and once

authorized by the generator to ship the

rejected wastes or residues to another

facility, the rejecting facility would sign

the generator’s certification to indicate

that it has offered the hazardous waste

in transportation.

If, however, the designated facility

has treated the waste or otherwise

managed the waste in such a way as to

change its form, change the applicable

DOT description for the waste, or

generate a new waste, then this

procedure would not apply to the

second shipment. Instead, the

designated facility would be identified

on the manifest (Items 1 and 4) as the

generator, and would sign the

generator’s certification in its capacity

as a waste generator shipping its waste

off-site.

In those instances where the

designated facility must return a

rejected waste or regulated residue to

the generator, the proposal would not

require the designated facility to list the

actual generator’s information in Items 1

and 4 of the manifest. In such instances,

the proposal would require the

designated facility to identify itself in

the generator information section on the

new manifest of the return shipment to

the generator. This modification is

important in order to ensure that the

return shipment back to the initial

generator can be verified. Under current

RCRA requirements, the entity initiating

the shipment of hazardous waste

(typically the actual generator) is

responsible for confirming that the

shipment is received by the designated

facility (see, 40 CFR 262.42). Thus, if the

actual generator were to be identified on

the new manifest as both the generator

and the destination facility, the rejecting

facility would not be able to verify that

the waste was indeed received by the

actual generator. By identifying the

designated facility in the generator

information section on the new manifest

for the return shipment, the designated

facility would be in a position to verify

that the generator received the return

shipment, or, file an exception report if

verification is not received in a timely

manner.

Under RCRA regulations, a RCRA

‘‘generator’’ is defined as a person

whose act or process produces a

hazardous waste, or whose act first

causes the waste to be subject to

regulation. See 40 CFR 260.10. In the

great majority of cases, the person

completing the manifest and signing the

generator’s certification statement is in

fact a RCRA ‘‘generator’’ who produced

the hazardous waste undergoing

transportation. There are times,

however, when our Subtitle C

regulations require persons other than

generators to prepare hazardous waste

shipments for transportation. For

example, a new manifest must be

prepared in cases where a permitted

storage facility consolidates wastes from

various incoming shipments and later

ships the consolidated wastes under a

new manifest to another facility, or,

when a hazardous waste transporter

mixes wastes of different DOT

descriptions in a single container. In

each of these situations, the

consolidating TSDF or transporter is

responsible for a limited set of what are

typically generator responsibilities,

including preparing a manifest for the

28264 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

shipment. These entities are not

considered to be RCRA ‘‘generators’’

(e.g., their processes do not produce the

waste), but they may need to complete

a new manifest and sign the generator’s

certification statement in the course of

discharging their responsibilities and

offering the waste in transportation.

Similarly, today’s proposal would

clarify the requirements that designated

facilities must follow when preparing a

new manifest in order to offer rejected

wastes or regulated residues in

transportation. When a designated

facility prepares a rejected waste or

residue shipment for off-site

transportation under these procedures,

it would not assume under this proposal

the role or general responsibilities of a

RCRA ‘‘generator.’’ Rather, the rejecting

facility would be responsible for a

limited set of generator responsibilities,

including the preparation of the new

manifest in accordance with 40 CFR

Part 262, Subpart B, and ensuring that

the waste is properly packaged, marked

and labeled in accordance with the

current provisions (40 CFR 262.30–33)

prescribing pre-transportation

requirements that apply to hazardous

wastes offered in transportation.

Today’s proposal would thus clarify

how the generator information blocks

(Items 1 and 4) and the generator’s

certification would be completed by a

facility shipping these types of wastes.

First, in every case where a

designated facility offers rejected waste

or regulated residues in transportation,

the facility must sign the generator’s

certification statement. This

certification statement includes the

‘‘shipper’s certification’’ language

certifying that the shipment has been

described accurately and prepared

properly in all respects for

transportation in accordance with

national and international laws. The

designated facility offering rejected

wastes or residues in transportation is

responsible for ensuring that the pretransportation requirements have been

complied with, and must certify to their

proper execution as a final step in

preparing the manifest and offering the

wastes in transportation. While the

generator’s certification statement also

includes a waste minimization

certification, designated facilities that

are not in fact RCRA ‘‘generators’’ of the

waste being shipped would not be

bound by the waste minimization

statements when they sign the

generator’s certification statement.

Second, on every new manifest

prepared by a designated facility for a

rejected waste or residue shipment, the

appropriate entity to receive back a copy

of the manifest from the next designated

facility must be identified in the

generator information blocks (Items 1

and 4) of the manifest. For waste sent to

an alternate facility, that entity would

be the actual generator of the hazardous

waste, and for waste sent back to the

generator it would be the designated

facility rejecting the waste. For rejected

waste or residue shipments being

forwarded to an alternate facility, EPA

believes that the generator of the initial

shipment should receive a copy of the

new manifest from the alternative

facility so that the generator would be

informed of the fate of these wastes. For

shipments being returned to the

generator, EPA believes that the

rejecting designated facility is the

appropriate entity to be identified in

Items 1 and 4 of the new manifest, so

that the rejecting facility can verify the

receipt of the returned shipment by the

initial generator named as the

designated facility on the new manifest.

In this latter situation, EPA’s goal of

ensuring that the generator is informed

of the ultimate disposition of its

hazardous waste would be met because

the generator would actually be

receiving back its hazardous waste

shipment. However, the generator is not

in the ideal position to verify receipt of

the shipment. Consistent with the

current manifest requirements (e.g., 40

CFR 262.42), EPA would prefer that a

party other than the party to whom the

waste is being shipped be responsible

for verifying receipt of the shipment.

Thus, the proposal would require the

rejecting facility to complete the

generator information blocks on the new

manifest. In every case, however, the

proposal would require the rejecting

facility preparing the new manifest to

sign the generator’s certification, as it

would be offering the return shipment

in transportation, and would be

responsible for performing the pretransportation requirements and

certifying to their proper performance.

EPA requests comment on these

proposed procedures for facilities to

prepare new manifests when forwarding

rejected wastes or regulated residues to

alternate facilities or when returning

such wastes to generators. EPA believes

that TSDFs encountering rejected wastes

or residues are in the best position to

consult with generators on the

disposition of these wastes, and to

prepare the subsequent shipments in

accordance with the generator’s

directions. The Agency believes that

this proposed approach is preferable to

requiring the initial generator or

delivering transporter to complete a new

manifest, since this could bring about

unreasonable delays in shipping the

waste to its next destination, and result

in uncertain management

responsibilities while arrangements for

the next shipment are pending.

EPA requests comment as well on the

proposed approach for completing Items

1 and 4 (the generator information) on

the new manifest and for signing the

generator’s certification. Is it

appropriate that the initial generator

should be identified as the generator on

the new manifest for wastes being

forwarded to alternate facilities? For

return shipments to generators, do

commenters agree with the Agency’s

conclusion that the interest in tracking

receipt of the return shipment requires

the rejecting TSDF to complete the

generator information (Items 1 and 4) on

the new manifest?

Under the proposal, the rejecting

facility forwarding or returning rejected

wastes or residue shipments would

always sign the generator’s certification,

since EPA believes that this facility

would have firsthand knowledge of how

the new shipment was prepared and

would be in the best position to certify

to these facts. So, the rejecting facility

offering these wastes in transportation

would sign the certification in its

capacity as the one shipping or offering

the wastes in transportation, and would

be liable in this capacity for the truth of

the ‘‘shipper’s certification’’ language

included in the generator’s certification

statement. Since the rejecting facility is

not in fact a RCRA generator, it would

not be bound by the waste minimization

certification language, which applies

only to generators of hazardous waste.

EPA requests comment on whether the

proposal properly allocates the liability

for these pre-transportation acts to the

rejecting facility.

Alternatively, EPA could require the

rejecting facility to consult with the

generator on the disposition of the

rejected waste, and then sign the

generator’s certification ‘‘on behalf of’’

the initial generator. The alternative

approach would result in the manifest

otherwise being completed in the same

manner (i.e., Items 1 and 4 and listing

the destination facilities) as under the

proposed approach. However, by

signing the generator’s certification ‘‘on

behalf of’’ the initial generator, the

generator would be bound by the

rejecting facility’s signature on the

certification statement. The rejecting

facility would sign the certification only

as the generator’s authorized agent, and

the facility would not be liable itself for

the proper execution of the pretransportation acts included in the

certification. Does this alternative have

more merit than the proposed approach,

or, is it not fair to hold the generator

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28265

liable for the proper execution of the

pre-transportation acts which it

authorizes the rejecting facility to

perform, but cannot really supervise

from a distance? The Agency requests

comment on how best to allocate the

shipper/offeror responsibilities included

in the generator’s certification between

the generator and the rejecting facility.

10. What Would You Be Required To Do

Under the New Regulations?

Residues Being Sent to an Alternate

Facility

If you are a TSDF or hazardous waste

recycler or other designated facility who

cannot fully empty a container

according to 40 CFR 261.7, and you are

unable to manage the container yourself

and have to send a container with a

residue off-site to an alternate facility,

you would be required to follow these

directions:

• Sign the original manifest

acknowledging receipt of the waste and

identifying the residues in the

Discrepancy block of the original

manifest;

• Contact the generator for a decision

about where and how to forward the

hazardous waste from your facility, and

for authorization to prepare a new

manifest for the shipment;

• Write the generator’s name, address

and U.S. EPA ID number in the

generator’s name and mailing address

box on the new manifest (Items 1 and

4);

• Write the name of the alternate

designated facility and the facility’s U.S.

EPA ID number in the designated

facility block (Item 9) of the new

manifest;

• Copy the manifest tracking number

found in Block A or Item 3 of the new

manifest to the manifest reference

number line in the Discrepancy Block of

the old manifest (Item 20);

• Write the DOT description for the

residue in the Item 10 (U.S. DOT

Description) of the new manifest and

write the container types, quantity, and

volume(s) of waste;

• Indicate ‘‘residue waste from

Shipment No. * * *’’ in the Special

Handling block of the new manifest; and

• Sign the Generator’s Certification to

certify, as the offeror of the shipment,

that the waste has been properly

packaged, marked and labeled and is in

proper condition for transportation.

Residues Being Sent Back to the

Generator

If you are a TSDF or a hazardous

waste recycler who cannot fully empty

a container according to 40 CFR 261.7,

and you have to send the residue back

to the generator, you would be required

to follow these directions:

• Sign the original manifest

acknowledging the waste that was

received, and noting the residue in the

Discrepancy block of the manifest;

• Contact the generator for a decision

about where and how to forward the

hazardous waste from your facility;

• Write your name, address and U.S.

EPA ID number in the generator’s name

and mailing address box (Items 1 and 4);

• Write the initial generator’s name,

address and U.S. EPA ID number in the

designated facility block (Item 9);

• Copy the manifest tracking number

found in Block A or Item 3 of the new

manifest to the manifest reference

number line in the Discrepancy Block of

the old manifest (Item 20);

• Write the DOT description for the

residue in Item 10 (U.S. DOT

Description) of the new manifest and

write the container types, quantity, and

volume(s) of waste;

• Indicate ‘‘residue waste from

Shipment No. * * *’’ in the Special

Handling Block of the new manifest;

and

• Sign the Generator’s Certification to

certify, as offeror of the shipment, that

the waste has been properly packaged,

marked and labeled and is in proper

condition for transportation.

Rejected Loads Being Sent to an

Alternate TSDF

If you are a TSDF or a hazardous

waste recycler who rejects a load and

receives instructions from the generator

to send the load to an alternate TSDF,

either in full or in part, you would be

required to follow these directions:

• Sign the original manifest

acknowledging any received waste,

check the rejection box in the

Discrepancy block, and describe the

quantity and type of rejected waste and

the reason for the rejection in the

description line of the Discrepancy

block;

• Contact the generator for forwarding

information and for authorization to

prepare a new manifest for the rejected

waste;

• Write the generator’s name, address

and U.S. EPA ID number in the

generator’s name and mailing address

box (Items 1 and 4);

• Write the name of the alternate

designated facility and the facility’s U.S.

EPA ID number in the designated

facility block (Item 9);

• Copy the manifest tracking number

found in Block A or Item 3 of the new

manifest to the manifest reference

number line in the Discrepancy Block of

the old manifest (Item 20);

• Write the DOT description for the

rejected load in Item 10 (U.S. DOT

Description) of the new manifest and

write the container types, quantity, and

volume(s) of waste.

• Indicate ‘‘rejected waste from

Shipment No. * * *’’ in the Special

Handling Block of new manifest;

• Sign the Generator’s Certification to

certify, as offeror of the shipment, that

the waste has been properly packaged,

marked and labeled and is in proper

condition for transportation.

Rejected Loads Being Sent Back to the

Generator

If you are a TSDF or a hazardous

waste recycler who rejects a load and

receives instructions to send the load

back to the generator, either in full or in

part, you would be required to follow

these directions:

• Sign the original manifest

acknowledging any received waste,

check the rejection box in the

Discrepancy block, and describe the

quantity and type of rejected waste and

the reason for the rejection in the

description line of the Discrepancy

block;

• Contact the generator for forwarding

information;

• Write your name, address and U.S.

EPA ID number in the generator’s name

and mailing address box (Items 1 and 4);

• Write the generator’s name, address

and U.S. EPA ID number in the

designated facility block (Item 9);

• Copy the manifest tracking number

found in Block A or Item 3 of the new

manifest to the manifest reference

number line in the Discrepancy Block of

the old manifest (Item 20);

• Write the DOT description for the

rejected load in Item 10 (U.S. DOT

Description) of the new manifest and

write the container types, quantity, and

volume(s) of waste;

• Indicate ‘‘rejected waste from

Shipment No. * * *’’ in the Special

Handling Block of the new manifest;

and

• Sign the Generator’s Certification to

certify, as offeror of the shipment, that

the waste has been properly packaged,

marked and labeled and is in proper

condition for transportation.

11. What Conditions Would Apply to a

Rejected Waste or Container Residue

Shipment Once the Generator Receives

It Back From the TSDF?

A generator would have up to 90 or

180 days (depending on his/her SQG or

LQG status at the time the generator sent

the rejected shipment or container

residues to the TSDF) to send the

rejected shipment or container residue

to an alternate TSDF. Generators would

not be required to obtain a RCRA permit

for the period of time that the returned

28266 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

waste is on-site as long as they comply

with § 262.34(a) (for generators with

1000 kg or more on-site at time the

waste is sent) or § 262.34(d) (for

generators with less than 1000 kg onsite). Because EPA intends and expects

that hazardous waste would be returned

to the generator infrequently (only when

an alternate facility is unavailable), the

Agency decided not to propose a new

time frame, or other requirements, to

address these rare occurrences. We

believe the simplest approach would be

for generators to manage rejected wastes

and residues within the existing

framework for on-site accumulation,

since generators are already set up to

handle hazardous waste within 90 or

180 day time frames, and are familiar

with managing waste in accordance

with the provisions of § 262.34. Please

note that small quantity generators

would not be able to accumulate greater

than 6,000 kg of hazardous waste on-site

at any time. The Agency emphasizes

that it is not reconsidering, reopening,

or requesting comment on the

provisions of § 262.34.

In addition, it is important to note

that a generator would only be allowed

to accumulate a rejected load or residue

if that hazardous waste was originally

sent to the designated facility with the

understanding that the designated

facility could accept the waste. In other

words, this provision only covers

generators who sent the hazardous

waste to the designated facility in good

faith. EPA would consider a range of

factors—e.g., whether a generator has

repeatedly sent waste off-site to TSDFs,

only to have it rejected and returned, or

whether the generator knew or should

have known that the TSDF could not

accept its waste—in determining

whether a given shipment was in good

faith or a sham.

12. On What Issues Would EPA Like To

Receive Comments?

You are being asked to consider

whether these proposed provisions for

residues and rejected loads would

improve hazardous waste tracking for

these shipments. Specifically, EPA

would like comments on the following:

• Should EPA require a TSDF to close

out the original manifest and prepare a

new manifest for all instances where

waste is rejected or a regulated residue

requires off-site management? Is it

desirable to require facilities in all such

cases to use the facility certification and

discrepancy block to positively identify

waste rejections and the reason for the

rejection? Are there instances where it

is more practical to revise the original

manifest rather than generate a new

manifest. Is there merit to EPA’s

proposal to follow one consistent

approach (using a new manifest) for all

rejection scenarios?

• Are the procedures clear on how

rejecting TSDFs must complete the

generator information spaces on the new

manifest (Items 1 and 4) and sign the

generator’s certification? The proposal

would have the rejecting TSDF

responsible for ensuring that the pretransportation requirements are

properly performed with respect to

rejected wastes and container residues.

Is this an appropriate allocation of

responsibility?

• How would transporters be affected

by the proposed rejected waste and

residue procedures? When a waste is

rejected at the time of attempted

delivery, is the transporter or the

designated facility better suited to

contact the generator to obtain

instructions for forwarding waste to

another facility? Would transporters be

delayed unreasonably by the proposed

procedures if they must wait for the

designated facility to prepare a new

manifest?

• What should be the designated

facility’s responsibility for managing

rejected waste while it is awaiting

shipment to an alternative facility?

• Do the proposed procedures for

rejected loads and residues ensure

generator notice and decision-making

with respect to the disposition of

rejected wastes and residues? Do

generators want or need to be involved

in decisions involving such wastes?

• Are the directions clear? If not, how

can they be made more clear?

• Should a generator be allowed to

received his/her own rejected shipment

or container residues back from a TSDF?

If yes, how long is reasonable for a

generator to hold his/her rejected waste

before sending it to on to an alternate

TSDF? Should EPA allow the

accumulation clock to run anew (as

proposed), or limit the total time for

accumulation to 90 or 180 days? Note:

EPA is not reconsidering or requesting

comment on the current provisions of

§ 262.34. We are only requesting

comment on those provisions as they

would apply to the accumulation of

rejected loads or residues under this

proposal.

VII. Automation of the Manifest System

A. Introduction

1. Summary of Today’s Electronic

Manifest Proposal

EPA is today proposing to allow waste

handlers (generators, transporters, and

treatment, storage or disposal facilities)

the option of preparing, transmitting,

signing, and storing their manifests

electronically. EPA believes that

electronic manifesting could greatly

reduce the paperwork burdens of the

current system, while improving the

effectiveness of tracking waste

shipments and managing data. In

addition, in those states that collect

manifests and maintain databases to

track manifest data, the proposal would

foster a consistent approach for

submitting manifest copies

electronically to the states. The proposal

includes standardized electronic data

interchange (EDI) formats and an

Internet Forms format for the electronic

manifest. These formats should permit

the exchange of electronic manifests

among waste handlers in a manner that

ensures the compatibility and

interoperability of these files. The

standardized electronic formats should

also facilitate the management of

manifest data by state programs, as the

standard formats would minimize the

need for manual data entry or other

time-consuming processing of the data

prior to its import into the states’

tracking databases.

The manifest automation standards in

today’s proposed rule include 3 major

components: (1) the proposed EDI and

Internet Forms file standards for the

electronic manifest; (2) a proposed

standard for electronically signing the

manifest with electronic signatures; and

(3) a proposed set of computer security

standards for computer systems that

would create, process, and store

electronic manifest records. EPA

believes that standards in these 3 areas

are essential to the successful

implementation of an automated

manifest.

In addition to proposing the

electronic manifest standards

summarized above, this proposed rule

would eliminate impediments to an

electronic system in the current

regulations. Thus, explicit references in

the current regulations to the use of

specific paper forms and the use of ‘‘by

hand’’ signatures would be amended to

allow for their electronic equivalents.

Likewise, regulatory provisions that

now require all manifest copies to be

physically carried with the waste

shipment would be expanded to allow

manifest copies to be transmitted

electronically. Moreover, the current

record retention requirements would be

amended to clarify that the storage and

use of electronic records bearing the

required electronic signatures would

have the same legal effect under RCRA

as retaining and using paper copies

signed with conventional pen-and-ink

signatures. Generally, RCRA regulations

require that manifest records be retained

for three years from the date of a

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28267

shipment, but in many cases, facilities

may retain these records indefinitely in

order to address potential liabilities for

future site cleanups.

2. Why Is EPA Proposing These

Changes?

EPA is proposing an electronic

approach for manifesting hazardous

waste, because the Agency believes that

information technologies present

tremendous potential for reducing the

significant paperwork burdens of the

current manifest system. EPA’s

Regulatory Impact Analysis for this

rulemaking estimates that the current

manifest system imposes a total

paperwork burden on waste handlers

and States of more than 4.6 million

hours annually, and results in costs of

more than $193 million. We discuss the

potential burden reduction from the

electronic manifest later in this

preamble section (see heading 5). We

also believe that electronic manifests

would give rise to the exchange of

higher quality manifest data, and to

more timely and efficient access to this

data. Data would be of a higher quality,

because the direct import of waste

shipment and receipt data between

electronic manifests and facilities’ and

states’ data bases would give rise to

fewer data transposition and

interpretation errors than occur now

when manifest data must be manually

processed from paper forms. As a result,

both the tracking of hazardous waste

shipments by waste handlers and the

management of state hazardous waste

programs should be more effective.

Further, this action is consistent with

the requirements of the Government

Paperwork Elimination Act (GPEA).

GPEA generally mandates that agencies

accept, by October 2003, electronic

documents and electronic signatures for

the transactions that agencies conduct

with the public and with regulated

parties.

While the transition to fully electronic

systems would take some time to

implement, the Agency is motivated by

a desire to transform the manifest

system quite dramatically from its

current paper-based approach to one

that supports paperless manifest

completion and transmission. The

Agency further desires to establish an

‘‘open’’ or non-proprietary set of

standards that would allow the

information technology community

broad latitude to develop innovative

hardware and software solutions. We

believe that our proposed approach to

manifest automation would allow

electronic options to develop for both

large and small facilities, so that many

may benefit from the greater efficiencies

available with an electronic system.

EPA emphasizes, of course, that the

electronic manifest would be an option

available to those who wish to use it; it

is not the Agency’s intent to mandate its

use. Those entities that are more

comfortable with the paper form would

still be able to obtain and use the paper

manifest form to track their hazardous

waste shipments.

This approach is consistent with

EPA’s efforts across all its

environmental programs to promote the

adoption of electronic reporting, and to

ensure implementation in a consistent

manner that is compatible with current

practices in the private sector. EPA is

evaluating all of its programs for

regulatory and procedural barriers to the

use of electronic records and reports.

Thus, this proposal aims at both

eliminating impediments to an

electronic manifest in the current

regulations, and at developing standards

that would promote consistent and

widespread implementation of an

electronic waste tracking system.

3. Who Would Be Affected by These

Changes?

EPA anticipates that the electronic

manifest would affect all types of

hazardous waste handlers, including

large and small quantity generators,

transporters, and treatment, storage, and

disposal facilities (TSDFs). State

hazardous waste agencies that collect

manifests would also see a large impact

on the procedures and resources they

use to process manifest copies and enter

manifest data into their tracking

systems. Currently, about 24 states

collect manifests and track this data.

States and waste handlers have also

expressed support for using electronic

manifest data for preparing more easily

their submissions to EPA’s Biennial

Reporting System.

The Agency developed this proposal

to ensure that electronic manifesting

would be accessible to all types of waste

handlers. For example, large generators

and TSDFs may find it convenient and

economical to extend EDI systems that

may already be in place for financial/

purchasing information to their waste

management departments. These larger

facilities may adopt a traditional EDI

model that involves transmitting the

standard EDI formats across secure

Value Added Networks or VANs, or

choose to deploy a non-traditional EDI

model which uses secure E-mail

technology or Secure Socket Layer (SSL)

transmissions to pass EDI transaction

sets over the Internet. Mid-sized firms

and some small entities may find it

more practical to implement the

electronic manifest as a web form which

they access and complete while

connected to the Internet. Finally, this

proposed approach should also be

accessible to many other small

generators, who would not otherwise

find it practical or efficient to obtain or

use their own computer equipment to

transmit only a handful of manifests.

The proposed rule would clarify that, as

with the existing paper manifest system,

a generator may authorize another

person (e.g., a contractor, transporter or

TSDF) to complete and sign the

manifest on the generator’s behalf.

Alternatively, transporter personnel

picking up shipments could use remote,

portable devices to obtain a generator’s

electronic signature on an electronic

manifest.

4. What Manifest Automation Is Already

Occurring?

Existing efforts to automate the

manifest can be characterized as limited

and uncoordinated. For example, at the

‘‘front end’’ of the manifest system, a

variety of customized as well as

commercial software products are in

place or available to assist generators in

tracking their hazardous materials and

hazardous waste inventories. Several of

these products support the automated

preparation of manifests, and the

development of manifest templates to be

completed in connection with

commonly encountered waste streams

and shipment profiles. However,

consistent with current manifest

requirements, these products generate a

manifest document which must be

printed and signed, and the paper

copies then travel with the shipment in

the conventional manner. So, any

paperwork burden reduction achievable

now is limited primarily to the manifest

preparation effort.

Similarly, at the ‘‘back end’’ of the

manifest system, several states have

encouraged their higher volume

reporting facilities to submit manifest

copies to states in electronic formats.

Several states have specified ‘‘flat file’’

standards which are peculiar to each

state’s database platform and structure,

and which define the content fields for

each data element in a record strictly

according to its physical position in the

file. Other states have attempted to use

scanners and optical character

recognition (OCR) technology to convert

paper copies they receive to electronic

files that can then be more readily

manipulated. More recently, a few states

have tried in the past to establish pilot

programs allowing their larger waste

facilities to submit electronic copies

using an EDI approach. These initial

pilots were hampered by certain

regulatory impediments to a complete

28268 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

electronic manifest system, and by the

small volume of manifests involved,

which did not justify investment by

waste handlers or state agencies in EDI

software and infrastructure.

These limited efforts to date at

reporting manifest data electronically

have primarily benefitted the state

agency receiving the data, by

eliminating the resource intensive

process of manually re-keying the data

from the forms to the tracking system.

While these initial efforts have led to

some modest improvements in

preparing and processing manifests,

they have not been sufficiently

comprehensive in their scope nor

coordinated enough to bring about more

meaningful paperwork burden and cost

reductions. A preferred approach would

be one that would enable a manifest to

be initiated electronically, transmitted

and signed electronically, stored

electronically, and where necessary,

reported to states electronically, without

the need to convert between paper and

electronic formats. This approach would

be more effective, because it would

eliminate (with minor exceptions) the

inefficiency of maintaining both paper

and electronic copies for the same

shipments, and it would eliminate the

manual and burden-intensive processes

needed to convert between paper and

electronic formats. In addition, if a

standard electronic file format were

specified as part of this approach, the

regulated community could avoid a

situation where they would be required

to support multiple file formats

prescribed by the various states. Thus,

this proposal aims at establishing

standards for electronic manifesting that

could extend to nearly all aspects of the

manifest cycle. This proposal would

not, however, affect DOT’s shipping

paper requirements, including the

requirement that a paper copy of the

manifest or a shipping paper be carried

on the transport vehicle. In other

limited instances (e.g., a transporter

unable to participate in an electronic

system), additional paper copies might

also be necessary. However, the

proposal would promote as far as

possible the elimination of paper

manifest copies and their related

paperwork burdens.

5. How Much Reduction in Burden and

Cost Would Be Achieved by

Automation?

EPA’s analysis suggests that

automation of manifest activities would

reduce paperwork burdens substantially

among all waste handlers. The baseline

paperwork burden imposed on waste

handlers from all current Federal and

State requirements is estimated to

exceed 4.4 million burden hours

annually. These Federal and State

requirements impose compliance costs

on waste handlers exceeding $187

million per year. The Regulatory Impact

Analysis for this proposal suggests that

the reduction in waste handler burden

from the electronic manifest would

range between 488,000 hours and

938,000 hours annually, assuming that

all States would eventually recognize

the validity of electronic manifests. This

reduction in burden hours from

automation is expected to account for

between 69% and 82% of the total

savings expected from all the manifest

system revisions proposed today. In

terms of cost reductions, EPA projects

that manifest automation could produce

between $14.4 million and $26.6

million in cost savings to waste

handlers.

In addition, among the States that

collect manifest copies and track

manifest data, EPA’s Regulatory Impact

Analysis estimates that these States

collectively incur about 200,000 burden

hours each year as a result of processing

manifests. We further estimate that the

submission of electronic copies in

standardized electronic formats could

reduce these states’ manifest processing

burden by as much as 79,000 annual

hours. Overall, states could realize a

cost reduction of about $1.5 million

(roughly 25% of current costs) annually

in operating their manifest programs,

because of reduced data processing

costs. Initially, these cost reductions

would be offset somewhat by costs

which the states would incur as they

establish the capability to receive

inbound electronic manifests, revise

their data bases to reflect the proposed

form revisions, and map the electronic

documents to their particular

information systems.

6. What Other Benefits Would Result

From an Electronic Manifest System?

In addition to the significant

paperwork burden and cost reductions

summarized above, EPA believes that a

successful implementation of an

electronic manifest system would

produce other benefits for waste

handlers and state oversight agencies.

First, waste handlers could determine in

nearly ‘‘real time’’ the status of their

waste shipments. A generator could

receive nearly immediate electronic

confirmation of the receipt of their

waste at the designated waste

management facility, rather than waiting

a month or more (as the current

regulations allow) for a written

confirmation to arrive in the mail. This

could afford waste shippers a level of

tracking service that is similar to that

already available from commercial

package delivery services. This level of

tracking is not available under the

current paper-based system, which

assumes that clerical staff would need

several days or weeks to review, mail,

and respond to paperwork related to

their hazardous waste shipments.

Second, both waste handlers and state

agencies could receive more immediate

notice of problems that arise during the

transportation of a waste shipment.

TSDFs could report to generators any

significant discrepancies in waste types

or amounts or rejected loads within

moments of discovering the problem.

Likewise, generators would be likely to

spot and try to reconcile ‘‘exceptions’’

(occasions when a signed manifest

confirming receipt of a shipment by the

TSDF is overdue) more quickly than is

possible under the current paper-based

system, which requires a generator to

wait for 35 days to pass before inquiring

about the status of a shipment for which

written confirmation of receipt is

lacking. The current system delays

notification of discrepancies and

exceptions, because it loads into the

notification process the time needed for

facility personnel to review their paper

files and then mail verifications or other

notices to generators. Conceivably, an

electronic system would allow this

information to be transmitted at or near

the time the problem was discovered

(i.e., at the time the manifest was signed

by a TSDF’s receiving personnel), rather

than waiting for clerical staff to catch up

with several days or weeks of

accumulated paperwork.

Third, the proposal should produce

higher quality manifest data, since there

would be fewer data entry steps that

would otherwise invite errors from data

interpretation or transposition. State

personnel and waste handlers receiving

electronic copies would not be as likely

to be confronted with illegible

manifests, which occur with some

frequency with handwritten manifests

and carbon copies that do not print

clearly. Since electronic forms could be

entered into state tracking systems upon

receipt at the state agency, access to this

data would also be more timely. Many

states have advised us that it may take

several weeks or even months for data

entry personnel to enter data from paper

forms into their tracking systems.

Therefore, reports generated from

electronic systems would be based on

more accurate and up-to-date

information, and fewer resources would

be required to manage the data.

Fourth, when fully implemented,

enforcement officials could conduct

electronic record searches that would

more efficiently target enforcement

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28269

activities. Not only would electronic

searches of files more quickly focus

inspection resources on transactions of

interest, but it is conceivable that the

record inspections could be conducted

off-site in advance of on-site activities.

So, on-site inspection efforts could be

directed more closely at a discussion of

significant issues disclosed by the

records previously reviewed, rather than

exhausting substantial time and

resources examining file drawers of

paper manifests at the facility.

7. What Are the Concerns Associated

With Automated Systems?

There are several potential concerns

involved with the transition to an

electronic waste manifest system. An

emphasis of this proposed rule is to

establish requirements for security and

data integrity that would minimize

these problems. EPA has considered

each of these concerns in the course of

developing this proposal, and has

attempted to address them with

appropriate controls. The proposed

controls and security requirements that

deal with each of these concerns are

discussed in section VII.F. of this

preamble. We request your comments

on these and alternative options to

ensure secure transactions,

accountability, and data integrity.

a. Inadvertent or deliberate corruption

of records. Computer software

applications manipulate data extremely

efficiently, but the power of these

programs can also pose serious

consequences for data integrity when

problems arise. By accident or by

design, an individual operating such

software could delete or substantially

alter their files. For example, hundreds

of records stored on a hard disk drive

or on floppy disks can be lost if the

operator instructs the operating system

to format or erase the disk. Also, an

original record could be mistakenly or

purposefully overwritten by a

replacement file that is stored under the

same name. So, safeguards must be

established to minimize the threat of

data loss or corruption. With some

digital media, data could be altered

without leaving the traceable evidence

of alteration that is commonly found

with paper erasures and ‘‘white-outs.’’

Thus, investigators and prosecutors

alike are concerned that it may be more

difficult to detect and prosecute at least

some cases of computer fraud and

forgery. These concerns are balanced,

however, by the recognition that using

properly designed and implemented

electronic systems for processing data

can also reduce the likelihood of data

loss and the potential for fraud. This

results because records can be

authenticated electronically and more

readily stored in multiple locations.

Today’s proposal would include

electronic signature standards that

preclude the alteration of documents

after they are signed, the requirement of

backup copies to deal with accidents or

disasters that cause electronically stored

documents to be lost or corrupted, and

audit trail requirements to identify the

date, time, and source of all operator

entries that would create or alter a

document. The digital signature method

discussed later in this preamble is one

effective way to guard against this

concern, since digitally signed

documents are much less (if at all)

susceptible to data alterations than

documents signed with other methods.

b. Unauthorized access to systems or

data. The press has publicized broadly

tales of ‘‘hackers,’’ that is, individuals

who have penetrated computer systems

to conduct theft, sabotage, espionage, or

other mischief. However, in many

instances, the greater threat may be

posed not by outsiders, but by insiders

who should not have been granted

access to the system. A related risk is

the danger that persons who create

electronic records may rely on the

perception that electronic systems are

vulnerable to unauthorized access to

repudiate documents they have created.

Typically, passwords and personal

identification numbers (PINs) are

employed to control access, and to limit

system use to those with a need to know

the data. Today’s proposal would

require electronic systems to use

authority checks to limit system access

(including access to input or output

devices) to authorized persons.

Electronic systems would need to be

designed to detect attempts at

unauthorized access as well as invalid

or altered records.

c. Limited human involvement and

speed with which transactions are

executed. With an automated system,

information can be created and sent to

the recipient in an instant, perhaps

without adequate human oversight over

data quality. The immediacy and

irrevocability of electronic transactions

thus require much care on the part of

users. At the same time, computer

systems are able to perform automatic

quality control on transactions quickly,

while integrating multiple sources of

information. So, in many instances,

computer systems may detect problems

or data entry errors far more readily

than is possible with paper-based

systems.

d. Natural disasters and system

failures. Floods, fires, and earthquakes

can quickly wipe out an information

system and all its stored records, unless

safeguards have been followed and

back-up systems and records created.

Moreover, networks may ‘‘go down,’’

and system crashes can interrupt

electronic systems unless they are

promptly serviced or backed up with

other equipment. On the other hand,

paper records are susceptible to many of

these same problems, especially where

natural disasters are concerned. Paper

records may also become useless if they

are not indexed or filed properly.

Today’s proposal would require

electronic systems to be designed to

protect records from intentional or

accidental damage, and to produce

secure back-up copies or provide for

data recovery in the event of a loss. In

addition, as with the current paperbased manifest system, electronic

manifest copies would be sent to

multiple entities involved with

handling the waste or tracking the

receipt of waste, including generators,

transporters, TSDFs, and states. This

redundancy in distributing manifest

copies would provide additional

protection against loss or undetected

data alteration.

e. Software defects and

interoperability issues. Our increasing

reliance on information technology has

given rise to the development and use

of software applications that are very

complex and which are frequently

updated or replaced. Even software

products that have been heavily tested

and widely distributed have been found

to contain hidden defects or ‘‘back

doors’’ that have hindered their use or

have allowed security features to be

overridden. As more products become

available to support a function,

concerns arise about the interoperability

of different systems and whether data

can be exchanged and processed

consistently. As systems are replaced

and upgraded, there is also the concern

that data that were created by and

accessible on the original system would

not be accessible on the replacement

system. All of these factors may reduce

confidence in the trustworthiness of

electronic records. Today’s proposal

addresses these concerns by requiring

electronic manifest systems to be

validated for their consistent

performance and their interoperability

with other systems with which data

would be exchanged. In addition, the

proposal would require facilities to

retain prior versions of software and

hardware as necessary to access

manifest records throughout their

retention period.

28270 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

B. EPA’s Current Electronic Reporting

Policy

1. What Is EPA’s Current Electronic

Reporting Policy?

On September 4, 1996, EPA published

a ‘‘Notice of Agency’s General Policy for

Accepting Filing of Environmental

Reports via Electronic Data Interchange

(EDI)’’ (61 FR 46684). The September 4,

1996 policy sets forth the basic

approach for EPA to implement EDI for

environmental reporting. The policy

does not mandate the use of EDI; rather,

it establishes a consistent framework for

implementing EDI across EPA programs,

so that the benefits of EDI may be

maximized. The policy specifically

recognizes that other methods of

conducting electronic commerce would

emerge, and that EDI may not be

appropriate for all types of facilities and

reports.

EPA first endorsed EDI for

environmental reporting in its earlier

‘‘Policy on Electronic Reporting,’’ 55 FR

31030 (July 30, 1990). This initial EPA

policy statement was intended to

promote a uniform Agency approach to

electronic reporting that was compatible

with current industry and government

practices. The policy advocated a

standards-based approach grounded on

the use of American National Standards

Institute (ANSI) Accredited Standards

Committee (ASC) X12 standard formats

and communications protocols for EDI.

As described in the September 4, 1996

notice, facilities would, under certain

conditions, be able to submit required

reports electronically to EPA using EDI.

First, the 1996 policy would require

reporting facilities to enter into a Terms

and Conditions Agreement with the

Agency (61 FR 46684). The Terms and

Conditions Agreement includes mutual

recitals under which the parties

recognize the validity and enforceability

of electronic submissions, and agree not

to contest their validity. The Agreement

also contains provisions dealing with

when documents are considered to be

received, when they should be retransmitted, when they must be

acknowledged, and when they are

considered to be signed. Based on EPA’s

assessment of technology that was

current in 1996, as well as costs and the

level of certainty thought to be

necessary for authentication of most

environmental reports, EPA adopted a

personal identification number (PIN)

based approach for signing and

certifying electronic reports. Therefore,

the Generic Terms and Conditions

Agreement in the 1996 Policy contains

provisions dealing with the assignment

and management of PINs. The Policy

defines a PIN as a sequence of alphanumeric characters, and it specifies that

the appearance of an individual’s PIN

on an electronic message shall be

deemed to indicate the authenticity of

the message. 61 FR 46686. Finally,

under the 1996 Policy and its Generic

Agreement provisions, facilities would

be required to adhere to certain security

and audit/control requirements,

including requirements to retain

transmission logs and PIN records. 61

FR 46687.

Significantly, the 1996 Policy was not

intended to specify all the requirements

applicable to electronic reporting of a

specific environmental report. Rather,

the 1996 Policy anticipated that

program-specific notices would follow,

incorporating the explicit technical EDI

implementation guidance necessary for

a specific program report, as well as any

additional security or administrative

requirements required by specific EPA

programs. Therefore, today’s proposal

would provide the implementing

regulations and specific procedures that

authorize the use of EDI for the RCRA

hazardous waste manifest program.

Today’s proposal also expands on or

modifies some provisions of the 1996

EDI Policy as it affects the manifest

program, reflecting both changes in

technology and the specific needs of the

manifest program.

2. What Is Electronic Data Interchange

(EDI)?

Electronic Data Interchange (EDI) is

the transmission, in a standard syntax,

of unambiguous information between

the computers of organizations that may

be completely external to each other. It

thus allows for the exchange of

information between computer systems

that would otherwise be incompatible

with one another. It has been widely

used by the private and public sectors

for commercial transactions and general

data transfer, particularly for

transactions of a routine or repetitive

nature. As an ‘‘open systems’’ approach

to data exchange (i.e., data exchange is

not limited to entities within a

company’s own system or closed

network), EDI is largely independent of

specific technology environments, so it

provides a transparent bridge between

various hardware and software

platforms.

From aerospace and automobile

manufacturing to warehousing and

wood products, EDI is a dominant form

of electronic commerce. In the United

States, EDI is based on standard formats

and protocols developed and

maintained by an independent

organization, the ANSI Accredited

Standards Committee X12. Supporting

these standards are a wide array of

commercial software packages and

communications networks, and there is

a growing reservoir of industry EDI

experts that are available to both EPA

and the regulated community.

3. How Does EDI Work?

EDI is essentially a series of computer

language translations. If two companies

agree to exchange data via EDI, each

translates their outgoing data into a

common EDI ‘‘language’’ which can be

read by the EDI translator of the other

company. Each company receiving an

EDI transmission then converts the

incoming data from the common EDI

language into a format that can be read

by its computer and used in its data

base system. Typically, the data

transmissions are sent through a third

party Value Added Network (VAN), and

delivered to each company’s mailbox on

the VAN. More recently, some

companies have begun to use secure Email on the Internet as an alternative to

using VANs. The EDI standard formats,

or transaction sets, are non-proprietary,

and data can be sent or received in the

standard format independently of the

type of software or computer system

used by the sender or receiver. Unlike

a ‘‘flat file’’ format, which defines the

content fields for each data element by

its physical position in the file, an EDI

transaction set is a relational file format,

which contains predefined tagging

structures and well defined hierarchical

data file structures. The predefined

tagging structures specify how the data

should be formatted so that the EDI

software can interpret the specific

contexts and relationships of the data

presented in a file. These tags then

enable data in EDI files to be defined,

transmitted, validated, and interpreted

between applications and organizations,

since the tagging structures and the data

element relationships defined by the

tags are understood by all EDI compliant

software. The hierarchical data file

structures are also significant for EDI,

because they represent an orderly

scheme for formatting and organizing

related pieces of information in a

hierarchical manner, that is, in the

shape of a pyramid, with each row a

collection of information that is linked

in a specific way to the information

presented directly beneath it. Once

users of EDI systems complete the initial

installation of EDI software and

configure it to map the EDI transaction

sets used to their specific information

systems, both senders and receivers are

free to use their existing information

management systems to report, import

or manipulate data. They are also spared

the trouble and expense of having to

develop and maintain their own

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28271

customized reporting software, or the

file standards and communications

protocols that enable data to be

exchanged with others.

4. Why Would EDI Be Suited to an

Automated Manifest System?

EPA believes that an EDI approach to

automating the manifest makes sense for

several reasons. First, the EDI

technology is already used extensively

for the exchange of data in the business

arena. Although the manifest is not a

business transaction, EPA believes that

the existing expertise and the existing

commercial software products and

networks which support the exchange of

business data can be leveraged for use

with manifest data. Second, the

manifest is a high volume, recurring

transmission for many larger generators

and hazardous waste handlers. EDI is

most appropriately applied to routine

and repetitive transactions, such as the

submission of invoices or health claims

forms. Third, EDI is a common method

for integrating electronic reporting with

existing information systems. Currently,

about 28 states maintain manifest

tracking databases using different

hardware and software platforms and

database structures. Many waste

handlers also have developed or

purchased information systems which

they use to track their hazardous wastes

and other materials inventories. So, EDI

could be a sensible way to accommodate

the legacy systems already installed by

industry and the states. Also, because

EDI is an ‘‘open systems’’ approach

maintained by an independent

standards body, our adoption of an EDI

standard in this proposal would not give

an undue competitive advantage to any

vendor’s particular proprietary product.

Further, neither EPA nor our authorized

states would need to develop and/or

maintain software products and

standards under an EDI-based manifest

approach.

5. Would a Terms and Conditions

Agreement Be Required?

A major component of the September

1996 Electronic Reporting Policy was

the requirement that facilities wishing

to report electronically to EPA enter into

a Terms and Conditions Agreement with

the Agency. The major requirements for

electronic reporting programs were to be

included in this agreement, and the

parties to the Agreement would agree

not to challenge the validity of

electronic documents.

EPA has decided that it is more

practical in this rulemaking to specify

the key terms and conditions for

electronic manifesting in enforceable

regulations rather than require entities

to enter into Terms and Conditions

Agreements. While it may be practical

to require an agreement between EPA

and individual members of the

regulated community to govern their

direct reporting to EPA, these are not

the circumstances which operate with

respect to the manifest. Most electronic

transfers of manifests would occur

between numerous waste handlers (i.e.,

EPA is not involved), and it would be

very burdensome to require each waste

handler to negotiate an agreement with

all the entities with whom they might

exchange manifests. Therefore, a Terms

and Conditions Agreement would not be

required for automated manifesting. Key

elements of the September 1996 Policy

have been incorporated into this

proposed rule, and the Policy’s content

on the issuance and management of

PINs has been replaced in this proposal

by the proposed requirements for digital

signatures and secure digitized

signatures. Parties establishing

electronic manifesting systems may

require others to agree to terms and

conditions on the use of their systems,

but such contractual matters would not

be covered by or affected by this

proposal.

6. What Alternatives to Traditional EDI

Is EPA Considering?

The Agency is currently evaluating a

number of alternative means for

transmitting manifests electronically.

This evaluation is being guided not only

by the September 4, 1996 policy

statement, but also by manifest

automation pilot tests and other

electronic reporting initiatives which

EPA has supported in recent years.

While the September 1996 policy was

based on a traditional EDI approach

involving the exchange of ASC X12

transaction sets across a Value Added

Network by parties subject to Terms and

Conditions Agreements, other

approaches may also be viable and in

some cases, more practical than

conventional EDI conducted across

VANs. For those companies using EDI

systems, one alternative approach might

be to offer these firms the option of

securely transmitting EDI transaction

sets using ‘‘E-mail’’ and/or File Transfer

Protocol (FTP) provided through a third

party Internet Service Provider (ISP),

rather than a VAN. The Agency is also

particularly interested in promoting the

use of the Internet for electronic

manifesting, as this may be a more

practical medium for many facilities

who may not be equipped to engage in

traditional EDI. So, EPA is examining

the merits of an approach under which

an electronic manifest would be

completed as a ‘‘web form,’’ and then

transmitted in an Internet markup

language known as the Extensible

Markup Language or XML. The proposal

includes a proposed Document Type

Definition format for the manifest.

Alternatively, ‘‘web form’’ manifests

might be translated to an EDI format by

a server hosting EDI translation services,

and then transmitted as an ASC X12

compliant manifest to recipients using

Internet data transfer protocols.

EPA is today proposing both an EDI

option and an Internet Forms (XML

language) option for conducting

electronic manifesting. We are also

interested in taking comments on other

approaches that may not be described in

today’s proposal, but which also appear

to have merit given the purposes and

workflow process associated with the

manifest. The Agency emphasizes,

however, that its preferred approach is

to rely as much as possible on

approaches that are based upon open

standards, rather than those that depend

upon specific hardware or software that

implements proprietary standards.

7. What Are the Manifest Automation

Pilots?

In 1998, EPA began conducting the

first of several manifest automation pilot

tests. The objectives of the pilot are to:

• Demonstrate the feasibility of

automating the entire manifest cycle,

including preparation, transmission and

signing of copies, recordkeeping, and

reporting;

• Demonstrate the feasibility of using

EDI and other forms of electronic

commerce to track waste shipments in

a secure and practical manner;

• Facilitate the development of

automation standards to be included in

this rulemaking;

• Identify and address impediments

to manifest automation; and

• Evaluate the savings and costs

associated with an automated approach.

The first phase of tests demonstrated

an EDI approach involving several waste

handlers and state hazardous waste

agencies in the States of Illinois,

Indiana, and Minnesota. EPA purchased

EDI translator software and VAN

services from Sterling Commerce

Corporation, which customized its

Gentran:SmartformsTM software

application to incorporate the approved

federal convention mapping the ASC

X12 Transaction Set 856 to the federal

hazardous waste manifest. The software

package featured an intuitive user

interface and a customized data entry

template with built-in edit checks and

user aids to facilitate the preparation of

EDI manifests. The 1st phase of tests

required the 8 industry participants to

send numerous manifest transmissions

28272 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

to other trading partners during the

period from July to December 1998.

Some of these transmissions reflected

real hazardous waste shipments, while

others ‘‘tracked’’ simulated events. The

tests were planned to model a variety of

waste shipment events, including waste

receipts, waste rejections, discrepancies,

and intra-and inter-state shipments.

The 1st phase of tests relied upon PIN

numbers to take the place of

handwritten manifest signatures. A 2nd

phase of EDI tests was conducted in the

Fall of 1999. The 2nd phase of tests

integrated the EDI software and manifest

formats used in the 1st phase pilot with

a security product named ‘‘SecurECTM’’

from Sparta, Inc. The SecurECTM

product added a digital signature

authentication method and other

security services to make the 1st phase

EDI configuration compliant with the

ASC X12.58 security protocol. A third

phase of the pilot tests began in March

2000, and demonstrated with facilities

in New York State, Pennsylvania, and

Illinois the feasibility of using Internet

Forms technology and digitized

signatures to complete and transmit

manifests. As these additional tests are

completed, EPA would include reports

summarizing the results and key lessons

learned from the pilot in the record for

this rulemaking. Current information

about the Manifest Automation Pilot

tests is also available on EPA’s World

Wide Web site at http://www.epa.gov/

epaoswer/hazwaste/gener/manifest/

C. Overview of the Electronic Manifest

Proposal

1. What Is Included in Today’s Proposal

on the Electronic Manifest?

Today’s proposal includes several

components which together define a

framework for automating the hazardous

waste manifest. The proposal includes

several regulatory amendments

(summarized below) that would

eliminate impediments in the existing

regulations to an electronic manifest.

The proposal also would add new

provisions that set forth standards for

the electronic file formats that may be

used as electronic manifests, standards

for electronic signatures, and standards

for trustworthy electronic systems,

including electronic record storage.

The proposed electronic manifest

system requirements consist of technical

standards and computer security

controls which EPA believes are

necessary in order to ensure system

trustworthiness and data integrity in

electronic manifests. These controls are

also necessary to establish a sufficient

foundation for the admissibility of

electronic manifest data as evidence in

civil or criminal proceedings. In

addition, EPA believes these controls

would foster commercial acceptance of

the electronic manifest as a tool for

tracking waste shipments.

2. Is Electronic Manifesting Mandatory

for Waste Handlers?

No. Today’s proposal would only

establish requirements and standards for

those regulated hazardous waste

handlers (i.e., generators, transporters,

and TSDFs) that elect to transmit

manifests electronically. It is not the

Agency’s intention to mandate the use

of the electronic manifest by waste

handlers, and the paper Uniform

Manifest (Forms 8700–22 and 22–A)

would remain available for those

desiring to complete and transmit their

manifests manually. Likewise, nothing

in this proposal would require waste

handlers to report manifest copies to

their states, if they are not already

required to do so as a matter of state

law.

3. Must Authorized State Programs

Adopt Electronic Manifesting?

Today’s proposal would not require

States to adopt electronic manifest

authorities as a part of their authorized

RCRA programs. However, EPA is still

considering whether States should be

required to adopt such authorities in

order to ensure consistency with the

Federal program and other State

programs, and we may include such a

requirement as part of the final rule. If

States elect to adopt the electronic

manifest option, they would be required

to adopt authorities addressing the

standard electronic formats, the

electronic signature standards, and the

computer security controls described in

this section. The State implementation

issues are discussed further in section

IX. of the preamble. EPA requests

comments on whether specific

electronic manifesting requirements are

necessary components of states’

programs, and on the potential impacts

of such requirements.

4. What Happens if the Transporters of

My Hazardous Waste Don’t Automate?

EPA recognizes that there may be

times when an electronic manifest

cannot be passed to all the waste

handlers involved in a waste shipment.

Fundamentally, a TSDF must be able to

receive and process electronic

manifests, and either the generator or

transporter should also have the

capability to create or transmit an

electronic manifest.

EPA has established these proposed

standards so that generators and TSDFs

could substantially automate their

manifest programs, even if the

transporters involved with a shipment

do not participate in manifest

automation. So, a generator may still

participate in electronic manifesting

with the designated TSDF receiving the

waste shipment, as well as any state

agencies that elect to collect manifest

copies electronically. Even if the

transporters do not participate

electronically, the preparation function,

recordkeeping and reporting functions,

and the key function of verifying receipt

by the TSDF could still be accomplished

electronically. In such a case, the

transporter could provide the generator

with a hand-signed copy of the manifest

or other shipping paper under 49 CFR

Part 172, Subpart C, as DOT shipping

paper requirements would not be

affected by this proposal. The

transporter could retain a hand-signed

copy of this paper for its files, and the

generator could pass an electronic

manifest copy directly to the TSDF with

a notation in the transporter signature

block that a manual signature is on file.

The TSDF could then transmit to the

generator electronically its verification

of receipt, discrepancy information, or

other response related to the shipment.

All the waste tracking, signature

accountability, record keeping, and

emergency response functions of the

manifest system are preserved by such

an arrangement, even though a part of

the shipment record may consist of a

signed shipping paper and another part

consist of the electronic manifest.

Where a signed shipping paper is

retained as a generator’s or transporter’s

record, it must also bear the manifest

tracking number assigned to the

electronic manifest for that shipment, so

that the shipping paper records can be

linked to the manifest in the event

questions are later raised about the

shipment, or in the event of an

inspection of these records by a RCRA

inspector.

5. What Happens if the Generator Is Not

Able To Prepare an Electronic Manifest?

While the above discussion deals with

the situation where a transporter is not

automated, EPA expects that the more

frequently encountered issue would be

that generators would not be equipped

to prepare manifests electronically.

Indeed, the electronic manifest would

more likely be brought to generators

sites by the larger transporters and

TSDFs with integrated waste

transportation and waste management

functions. These entities deal with large

numbers of hazardous waste shipments

on a day-to-day basis and would have a

greater incentive to automate their waste

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28273

tracking and data management

activities.

In those instances where the generator

is not automated, the transporter could

prepare the electronic manifest data for

a particular shipment, and obtain the

generator’s electronic signature by using

a portable device (e.g., a digitizer pad

joined to a wireless unit) that captures

the generator’s signature and initiates

the shipment. This approach would

mimic closely the current procedure for

the paper manifest, and it would not

require the generator to purchase or use

any of its own computer equipment to

enter its manifests into the electronic

system. Of course, in a case where the

generator signs an electronic manifest

using a portable device provided by a

transporter, the transporter would need

to provide the generator with a hard

copy of the manifest for the generator’s

records.

Alternatively, a non-automated

generator could authorize the

transporter personnel who come on-site

and prepare the shipment for

transportation to sign the manifest

electronically on the generator’s behalf.

As with the current paper manifest

system, this proposal would also allow

a person other than the generator (e.g.,

a transporter or TSDF) to be authorized

by the generator to prepare the manifest

and sign the generator’s certification on

its behalf. Thus, generators that do not

participate directly in the automated

system may still participate through the

efforts of their authorized preparer. This

aspect of the proposal is discussed in

greater detail below in section VII.G. of

this preamble.

EPA believes that participation in the

automated system would grow over

time, as market forces and customer

relationships cause others to become

trading partners in the electronic

manifest. Companies may decide to

offer automated manifesting to their

customers to remain competitive with

others providing this service. In

addition, large generators with multiple

sites and highly integrated commercial

waste management companies may find

it advantageous to purchase multi-site

licenses for waste tracking software,

which they would deliver to their

various sites or generator customers so

that they can maximize the benefits

which they would realize from

automating the large numbers of

manifests that they must process.

6. Where Would the New Requirements

for Automated Manifesting Be Codified?

The key requirements would be

codified in several proposed new

sections of 40 CFR Part 262. First, EPA

would expand existing 40 CFR 262.20(a)

to include a specification for both the

paper manifest form and the electronic

format allowed under this proposal. The

proposal would retitle existing 40 CFR

262.23 (use of the manifest) to focus this

section on the paper manifest, and it

would add a new 40 CFR 262.24 to

discuss the procedures for using the

electronic manifest. EPA is also

proposing to add a new 40 CFR 262.26

to Subpart B of part 262. This new

section would set forth the requirements

for electronic manifesting systems, and

clarify that electronic manifests that are

issued by systems which meet these

requirements would be considered the

legal equivalent of paper manifests

bearing handwritten signatures. Thus,

such electronic manifests would be

deemed to satisfy any Subtitle C

requirements to complete, transmit,

retain, or submit a manifest copy, or to

produce it for inspection.

A significant new addition to the

regulations would be codified at

§ 262.25, which contains definitions and

requirements addressing electronic

manifest signatures. This section would

include standards for the electronic

signatures which may be used to

authenticate electronic manifests.

Electronic manifest copies would have

to be signed with one of the described

electronic signature methods and would

have to meet the § 262.26 security

standards in order to be recognized as

the legal equivalent to a hand-signed

paper manifest. The proposal further

explains that the proposed electronic

signatures would consist of either a

specific type of electronic signature

known as a ‘‘digital signature,’’ or an

electronically captured form of a

handwritten signature, which the

proposal defines as a ‘‘secure digitized

signature.’’ In connection with the

proposed ‘‘digital signature’’ standard,

section VII.F.11 of this preamble

discusses options for establishing a socalled Public Key Infrastructure or PKI

to support the issuance, management,

and use of the digital certificates that are

necessary elements of digital signature

systems.

These proposed federal regulations

would, however, confer no immediate

right or privilege to anyone to begin

using electronic manifests in ways not

authorized under existing regulations.

Before electronic manifesting can begin,

a final regulation would need to be

promulgated, and waste handlers would

need to consult with their state

regulatory agencies to determine if their

state(s) would recognize the validity of

electronic manifests. States that choose

to recognize electronic manifests would

need to revise their programs to include

appropriate manifest automation

standards. Waste handlers and state

agencies that collect electronic

manifests would also need to agree to

send and accept electronic manifest

transmissions, and would need to

prepare themselves technically to

initiate such programs. The effects of

this regulation on state hazardous waste

programs and on state authorization are

discussed below in section IX. of this

preamble.

D. What Impediments to Automation

Would Today’s Proposal Remove?

This proposal would amend several

current regulations which appear to

pose obstacles to implementing an

automated hazardous waste manifest

system. The impediments arise because

the existing regulations which describe

the format for the manifest and how to

use it were developed nearly 15 years

ago, at a time when the current

capabilities in electronic commerce

were not anticipated. Therefore, the

existing regulations describe a specific,

multi-copy paper form which must be

physically carried among waste

handlers, and which must be handsigned as custody of waste shipments

change. These impediments, and the

revisions to them proposed in this

notice, are summarized in this section of

the preamble.

1. Specific Paper Form Designations

Several provisions in the current

regulations require the use of specific

paper forms for the manifest. Sections

260.10 and 262.20(a) each refer

specifically to the use of the current

federal forms, that is, EPA Form 8700–

22 (the manifest) and, if needed, EPA

Form 8700–22A (the continuation

sheet). Today’s proposal would update

these form designations by clarifying

that the approved standard EDI formats

(ANSI ASC X12) may also be used to

convey manifest data electronically.

This proposal amends §§ 262.10 and

262.20(a) to add the EDI and Internet

Forms formats to the designation of

acceptable hazardous waste manifests.

2. ‘‘By-hand’’ Signature Requirements

Certain of the existing regulations

appear to bar the use of anything other

than a handwritten signature, that is, the

traditional act of signing in which the

signer uses a stylus or other writing

instrument to create the signer’s

scripted name or other mark on the

document. The current references to

handwritten signatures are found in

§ 262.23(a)(2), which requires the

generator to sign the manifest by hand

and obtain the handwritten signature of

the first transporter accepting the waste

shipment, and in § 263.20(d)(1), which

28274 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

requires the transporter to obtain the

handwritten signature of the next

transporter, or the designated facility.

Today’s proposal eliminates the

restriction to only by-hand signatures,

and adopts new language which

recognizes that both by-hand signatures

and the proposed electronic signature

methods may each be used to sign

manifests.

3. Physical Transmission of Manifests

Several existing provisions in the

regulations suggest that the manifest

may only be transmitted physically with

the shipment, and the copies manually

delivered to the waste handlers

involved with a specific shipment.

Existing § 263.20(a) states that a

transporter cannot accept hazardous

waste from a generator unless it is

accompanied by a manifest. Sections

262.23(b) and 263.20(d)(3) also discuss

the handling of the manifest, and

require that the generator or transporter

that is delivering the waste shipment to

the next transporter or to the TSDF must

keep a copy for its files, and then give

the remaining paper copies to the waste

handler receiving the shipment.

Today’s proposal would clarify that in

those instances where the electronic

manifest is being used, the manifest

copies may be transmitted electronically

among the waste handlers, and a paper

copy of the manifest would not have to

be carried with the shipment during

transportation if, instead, a hazardous

materials ‘‘shipping paper’’ is carried

with the shipment. The currently

required practice of physically

delivering copies of the manifest to

waste handlers and carrying a copy of

the manifest during transportation

would not change for waste handlers

who continue to use the conventional

paper manifest.

RCRA requires EPA to promulgate

regulations applicable to generators and

transporters of hazardous waste,

including requirements for the use of a

manifest system, as necessary to protect

human health and the environment

(RCRA sections 3002 and 3003). As

discussed previously, the manifest

serves to protect human health and the

environment during transportation of

hazardous waste, as well as being a

device that ensures that waste can be

tracked from its origin to its destination

site. As a form of ‘‘shipping paper,’’ the

manifest conveys essential emergency

response information required during

transportation, specifically, the proper

shipping name, hazard class, hazardous

material ID Number, and packing group

for hazardous waste shipments, and

phone numbers enabling responders to

obtain additional information about a

shipment in the event of an emergency.

EPA incorporated DOT’s ‘‘shipping

paper’’ requirements into the current

hazardous waste form in order to ensure

the protection of human health and the

environment during the transportation

of hazardous waste. In addition,

additional waste shipment tracking

elements appear on the current

manifest, including the EPA ID

Numbers identifying each waste handler

involved with a shipment, and space for

each of the handlers to sign the manifest

when they receive custody of a

shipment. These manifest elements are

intended to ensure that the waste can be

tracked from its site of origin to its

destination site. Thus, the current

manifest form incorporates both DOT

‘‘shipping paper’’ elements to deal with

the transportation hazard aspects of a

waste shipment, and additional tracking

elements unique to RCRA to ensure that

hazardous waste shipments are

designated for, and in fact arrive at,

facilities permitted to handle the

hazardous waste.

Today’s proposal would clarify that

when the electronic manifest is

transmitted and signed electronically by

waste handlers, a paper manifest would

not have to be carried with the

hazardous waste shipment during its

transportation. This proposal recognizes

that the waste tracking functions of the

manifest system can be conducted

entirely electronically, without carrying

and delivering paper copies of the

manifest with the shipment. In order to

ensure that information about the

hazardous waste shipment would be

available during its transportation, the

proposal would not affect DOT’s

requirement that a shipping paper be

carried on the transportation vehicle.

So, a hard copy of a shipping paper

would be carried on transportation

vehicles to address the transportation

hazard and the needs of emergency

responders. This requirement would be

met under today’s proposal by either a

print-out of the manifest or other

allowed form of DOT shipping paper

(e.g., bill of lading) under 49 CFR Part

172, Subpart C. In such a case, we

believe that the combination of the DOT

shipping paper on the vehicle and the

electronic manifest information

transmitted electronically would meet

all the requirements that arise under

RCRA. Specifically, the DOT shipping

paper would present all the critical

emergency response information

required about a shipment during its

transportation, and the electronic

manifest would preserve the waste

tracking functions of the manifest. EPA

requests comments on this aspect of the

proposal.

4. Electronic Storage of Manifest Copies

Today’s proposal also specifies when

manifest copies may be stored on

electronic media and meet the record

retention requirements of the manifest

regulations. EPA has previously issued

an interpretive letter that provided

guidance on this issue, but this

rulemaking provides the opportunity to

identify more formally the standards

which would govern electronic storage.

In May 1996, Safety-Kleen

Corporation approached EPA seeking

clarification that the federal Subtitle C

regulations would permit that company

to store image files of signed manifests

received at its Denton, Texas, recycling

facility. The company had installed

equipment at the Denton facility which

would enable it to scan completed paper

manifests and then store the image files

of these manifests on optical disks. An

automated index system was created for

these manifests, and this permitted one

to search for stored manifests by several

data elements. The system could display

retrieved manifests on the computer

screen, or print them as hard copy. EPA

concluded that Safety-Kleen’s proposed

electronic storage system would meet

existing RCRA regulations for retention

of manifest records. This conclusion

was supported by the Agency’s findings

that the image files would bear the

required handwritten signatures, that

the electronic records would be

accessible to RCRA inspectors, and that

the system included back-ups and other

security features that satisfied EPA that

data integrity would be maintained and

that the records would be trustworthy.

Since announcing this interpretation in

November 1996, at least 11 states have

followed this policy in their authorized

RCRA programs.

Today’s proposed standards for

electronic manifest storage would

clarify that RCRA allows additional

types of manifest records to be stored,

beyond the paper copies, image files or

facsimile copies allowed under the

current regulations. The proposal would

also recognize the validity of electronic

copies that are signed with the required

electronic signatures and maintained by

computer systems that meet the

technical standards and security

controls set forth in proposed § 262.26.

These technical standards and controls

are discussed in detail below in section

VII.E. of this preamble. The controls are

designed to ensure the trustworthiness

of the computer systems which generate

and process the manifest records, so that

the data stored on these electronic

records may be relied upon as complete

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and accurate, and protected against

accidental or intentional corruption,

alteration, or loss. In addition to

ensuring data reliability and integrity,

the proposed standards would also

require reasonable inspector access to

the electronic records over the entire

record retention period, and safeguards

against repudiation. EPA believes that

the proposed electronic signature

requirements, taken together with the

computer security controls of proposed

§ 262.26, provide a reasonable set of

safeguards that would protect the

integrity of the records and guard

against repudiation by waste handlers

who enter data and sign the records.

These proposed standards would also

afford RCRA inspectors reasonable

access to electronic records for purposes

of inspecting or copying facility files, or

producing evidence for enforcement

actions.

E. What Standard Electronic Formats

Would Today’s Proposal Require?

1. Overview

Sections 260.10 and 262.20(a) of the

Subtitle C regulations would be

amended by today’s proposal to include

the standard EDI format and an Internet

Forms format that EPA would accept as

the electronic hazardous waste manifest.

The proposed EDI format is discussed in

preamble section E.2. that follows

immediately. Section E.3. of this

preamble discusses the proposed

Internet Forms format. Specific issues

for which EPA requests comments are

presented in preamble section E.4.

Today’s proposal would require

persons who choose to develop or

participate in an electronic manifesting

program to adhere strictly to the

electronic manifest formats specified in

this rulemaking. EPA has determined

that in order to maintain consistency

among Federal and authorized State

programs, authorized States that choose

to implement the electronic manifest

options for waste handlers would not be

permitted to require a different

electronic format or to require

additional information to be transmitted

electronically in connection with

shipments in or being offered for

transportation. This is similar to the

determination that EPA made with

respect to the Uniform Manifest form in

1984, and the Agency believes that

several of the same factors supporting

our 1984 decision affect the electronic

manifest. See 49 FR 10490 at 10491

(March 20, 1984). The free movement of

waste shipments would be similarly

burdened if transporters and TSDFs

could not read or sign off on a

manifested waste shipment because of

incompatible electronic formats

required by one or more states.

Transporters entering a particular state

requiring another format or additional

requirements would need to incur the

cost and inefficiency of acquiring

additional software to support the other

state’s format or requirements, or face

state enforcement actions if the

additional formats/requirements are not

supported. In addition, waste handlers

called upon to support multiple State

formats and differing requirements

would likely need to incur the

additional cost and inconvenience of

acquiring and using software to convert

files between the various formats

supported by the states. It is conceivable

that conflicts that would arise between

different states’ incompatible formats

would actually bring waste handlers’

systems down, and further delay the

progress of shipments in transportation

until such problems could be corrected.

In addition to the confusion and

burdens on the movement of waste that

would result in such cases, EPA

believes that non-standard formats

would greatly complicate enforcement

by RCRA inspectors, since inspectors

would need to be trained and perhaps

equipped differently to inspect

manifests originating from different

states. For multi-state facilities, there

would likely arise the additional

complexity, confusion, and cost of

having to obtain software and hardware

to support non-standardized manifest

formats and procedures, as well as the

capacity to convert files between state

formats.

The above discussion focuses heavily

on the interstate transportation and

‘‘free movement of waste’’ factors that

EPA relied upon as well in 1984 when

it prescribed the uniform manifest.

However, with regard to the successful

implementation of an electronic

manifest system, EPA also believes that

it is critical to recognize the inherently

interstate nature of the electronic

infrastructure that would need to

develop to support electronic

transmissions of data. That is, apart

from the considerations noted above on

how waste movements and

transportation vehicles would be slowed

or burdened by inconsistent electronic

formats, there is the equally important

consideration of how the interstate

electronic data transmissions

themselves would be hindered and

burdened by inconsistent formats. The

Agency’s reliance on standard electronic

formats is premised equally on the

necessity of ensuring, for example, that

an electronic manifest transmission

originating with a generator in the State

of New York can be readily received,

read, and processed by a landfill

operator in the State of Alabama, as well

as by the transporters that may operate

in the transit states that must be passed

through en route to the destination

facility. While non-uniform paper forms

may entail the burden and inefficiency

of needing to carry redundant

paperwork, incompatible electronic

formats can render the data being

transmitted unreadable and useless.

Additional costs and complexity would

be incurred by system developers faced

with having to address multiple formats.

To the extent that the reliability and

accuracy of the systems were to be

impaired by format conflicts, the

admissibility of the electronic

documents in evidence during

enforcement actions would similarly be

impaired. Therefore, under the Part 271

authorization standards on consistency,

any authorized States implementing

electronic manifest programs must

require only the standard electronic

manifest formats promulgated in this

rulemaking. Other formats would not be

acceptable as a RCRA hazardous waste

manifest.

2. Proposed EDI Format

This proposed rule identifies the

American National Standards Institute

(ANSI) Accredited Standards Committee

(ASC) X12 standard formats for

Electronic Data Interchange as the

standard EDI formats acceptable for

electronic manifests. These X12

standard formats (transaction sets)

present specified data elements and

content in a strictly standardized syntax

and structure, which enables these

formats to be exchanged unambiguously

among different computer systems.

In analyzing the manifest process to

determine an appropriate

implementation of EDI, it became

apparent that two distinct transactions

support the tracking functions of the

manifest. Initially, the manifest

identifies the contents of a hazardous

waste shipment as offered for

transportation by the generator and

received by the transporters. Upon

receipt of the shipment by the TSDF, the

purpose shifts to providing the

generator with a record either verifying

the receipt of the shipment by the TSDF,

or noting any discrepancies connected

with the shipment. During a meeting

with industry and state agency

stakeholders in April 1999, participants

advised EPA that in the EDI setting, the

dual functions of the manifest could be

best accommodated with separate

transaction sets. That is, to reduce

potential confusion in the EDI setting,

one transaction set should be used to

28276 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

identify the contents of the shipment

and track its transportation, while a

distinct transaction set would be used to

allow the TSDF to advise the generator

of waste receipt or discrepancy

information. Based on these

recommendations, EPA has adapted two

EDI transaction sets or formats to the

manifest process. Under today’s

proposal, EPA would identify X12

transaction set 856 (‘‘Ship Notice/

Manifest’’) for the manifest’s waste

tracking function, and X12 transaction

set 861 (‘‘Receiving Advice/Acceptance

Certificate’’) to carry out the manifest’s

verification of receipt/discrepancy

function. The two transaction sets that

EPA has selected for this proposal are

fully capable of carrying all the data

presently required on the manifest.

Also, the 861 transaction set has the

added benefit of allowing TSDFs to tie

their comments (e.g., waste receipt,

rejection or discrepancy) to a particular

waste item listed on the manifest.

In order to conform the EDI

transaction sets selected to the data

requirements of the hazardous waste

manifest, EPA developed a customized

mapping or ‘‘Implementation

Convention’’ for the 856 and 861 EDI

transaction sets. As a follow-on step to

the Implementation Convention

development, EPA submitted the two

transaction sets’ Implementation

Conventions to a federal review and

approval process which involved public

notice and comment. This approval

process is managed by the Federal

Electronic Data Interchange Standards

Management Coordinating Committee

(FESMCC), under the procedures of the

Federal Information Processing

Standard (FIPS PUB) 161–2, entitled

‘‘Electronic Data Interchange.’’ All

approved Federal Implementation

Conventions are registered with the

National Institutes of Science and

Technology (NIST). The NIST registry of

approved Implementation Conventions,

including the hazardous waste manifest

IC (856W) and the hazardous waste

receipt IC (861W), is located at http://

snad.ncsl.nist.gov/fededi/3060-ic.html.

These approved federal mapping

conventions would be revised to reflect

any changes to manifest data elements

or to designated transaction sets that

result from this rulemaking. The revised

ICs would then be resubmitted to the

FESMCC for approval. EPA would

include information on the revisions to

the manifest EDI mapping conventions

in a technical guidance document that

would be prepared to support the final

rule notice for this manifest rulemaking.

Subsequent to the adoption of revised

ICs in the final manifest rulemaking,

EPA may from time to time decide to

adopt a new version and release of the

ASC X12 standard or to modify the

conventional mapping for the manifest.

These modifications would address

minor, technical changes to the

standard, but would not alter the

content of the manifest. Proposed

§ 262.20(a)(3)(i) includes a notification

process to deal with these upgrades and

modifications. After any such upgrades

or modifications have been submitted to

the FESMCC Committee and approved

under FIPS PUB 161–2 procedures

(which provides for notice and

comment), EPA would then publish a

Federal Register notice announcing this

change to the implementation

convention and establishing the

conversion date. After the conversion

date, persons using the previous EDI

format and convention would have a

minimum of 60 days to convert to the

new version. In addition, EPA would

discontinue support for the previous

version no sooner than 90 calendar days

after the conversion date. EPA believes

that this procedure would provide for a

reasonable transition and support

period as the ASC X12 standards and

implementation conventions are

updated.

3. Proposed Internet Forms Format

a. Background. The standard language

for presenting data on the World Wide

Web—the Hyper Text Mark-up

Language (HTML)—is not alone well

suited for completing manifests that can

be signed electronically and preserved

as intact records that can be later

audited or produced as evidence of

completed waste transactions. While

web forms are frequently encountered

on web sites, the data that is entered in

the form fields during a typical HTML

browser session are divorced during

transmission from the form prompts that

elicited the data. So, only the data

stream supplied by the sender is sent to

the host computer. This leaves HTML

transactions open to challenges, since

the person submitting the data can later

argue that data he or she entered were

in response to a different prompt or

question, or that the browser altered the

appearance of the form so that certain

questions were not answered or

answered out of order. This type of

vulnerability is referred to as a

repudiation challenge, and it can be

avoided if the data entered are tied

unequivocally to the form elements to

which they respond. Several vendors

have recently developed solutions

designed to generate and preserve intact

web forms which include both the fields

and the responsive data, and which can

be signed electronically as records. This

results in a much more complete and

irrefutable electronic record than is

obtained when responding to simple

HTML web forms. These products

typically are installed as browser

extensions or ‘‘plug-ins,’’ and they add

executable programs or Java applets

which modify the HTML language to

generate the intact forms on the client

computer.

EPA tested one such product during

our Manifest Automation Pilot. In the

3rd phase of these pilot tests, EPA and

several volunteer partners from industry

and the states tested the Internet Forms

technology developed by a company

known as UWI.Com. (The company has

recently changed its name to PureEdge,

Inc.). This company’s Internet Forms

technology is based on a mark-up

language known as the Extensible Forms

Description Language (XFDL). XFDL is

itself a variant of the recently developed

Internet language known as Extensible

Markup Language or XML.

During the pilot test, EPA developed

considerable experience with

UWI.Com’s Internet Forms technology.

The electronic manifest ‘‘forms’’ used in

our pilot tests retained both the form

structure and the manifest data, and

were signed with digitized signatures

using PenOp’’ signature software. The

electronic manifest developed for our

pilot with the Internet Forms technology

and the Action Works Metro work flow

management software also supported

these features:

• Retention of all the graphical

elements familiar to the paper form. The

manifests could be processed (prepared,

signed, transmitted, and stored) in an

entirely digital manner, or printed in

hard copy;

• Inclusion of numerous on-line help

features and edit checks, to assist users

with the process of completing the

manifest accurately and quickly;

• Packaging of form structure and

data together in a single file that could

be easily archived and retrieved;

• Integration with workflow or work

group software so that the manifests

could be routed to appropriate trading

partners, while complying with

organizations’ specific business

processes and logic rules; and

• Support for mapping data directly

to a variety of back-end data bases,

including Oracle, Sybase, SQL Server,

and ODBC-compliant data bases.

b. What is the Extensible Markup

Language (XML)? The Extensible

Markup Language or XML is a relatively

new markup language that has been

developed to aid the Internet exchange

of documents that contain structured

information. While the basic language of

the World Wide Web, i.e., HTML, is

itself a markup language that can deal

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28277

with how the content of a document is

displayed on a computer screen, XML

has the additional capability of

‘‘tagging’’ a document’s content to

indicate what role the content plays.

On a more technical level, XML is

defined as a series of related technical

specifications that provide a syntax for

identifying, exchanging, and displaying

data. XML technical specifications are

developed by the World Wide Web

Consortium, and XML documents

would facilitate data exchanges using

World Wide Web transfer protocols. Its

most significant attribute is its

extensibility, a term which connotes the

flexibility designed into XML to adapt

to a variety of applications and

computing environments that need to

exchange and manipulate data. XML is

not bound by rigid semantics, and it

provides program developers with the

alphabet and tools to define document

element tags as they see fit, and to

define the structural relationships

between these tags.

XML has recently emerged as the de

facto method for defining business data

for the business to business Internet

exchange of data and for commerce on

the Web. Recent releases of

commercially distributed web browsers,

as well as several major commercial

data base applications, now support

XML specifications. Many information

technology experts believe that XML

would ultimately become the tool that

would extend the benefits of EDI—

exchanging routine business data in a

structured but technology neutral

manner—to web-based electronic

commerce. The hope is that XML would

make electronic commerce more costeffective and accessible. XML can take

advantage of the openness of the

Internet and Web architecture, while

perhaps offering lower costs than those

currently associated with EDI software

and VAN transmission fees.

However, XML has only recently

captured significant attention among

application developers, and it is still a

maturing technology. One of the greatest

challenges confronting the success of

XML is the current lack of consensus on

developing business standards for using

the XML specifications. Without some

agreement on how data element tags and

their relationships would be defined for

different business transactions, there is

the potential for much fragmentation

and chaos in the use of XML. In

addition, government and international

standards bodies generally are only

beginning to examine the possibilities

for using XML applications to support

reporting data to government web sites.

Recently, the United Nations Center for

Facilitation of Administration,

Commerce and Trade (UN/CEFACT),

the international equivalent to the ASC

X12 Committee, has chartered a work

group to research and identify the

technical basis upon which the global

implementation of XML can be

standardized. Specific subcommittees

within the ASC X12, including the

transportation committee that oversees

transaction set 856, are now in the

process of defining XML Document

Type Definitions (DTDs) for the various

X12 transaction sets.

The use of XML entails agreement on

the so-called DTDs and ‘‘schema’’ that

would define for different transactions

the agreed document structures, the

agreed tag identifiers and relationships,

agreed data elements and document

contents, and agreed exchange

requirements. It is EPA’s objective to

develop in this rulemaking an XMLbased manifest format that would

establish a standard method for

displaying and exchanging manifest

data with XML enabled browsers and

data base software. Therefore, in

addition to the EDI formats discussed

above, EPA is proposing an XML-based

approach for preparing and transmitting

manifests on the Internet. EPA has

developed a draft for comment of the

Document Type Definition (DTD) that

would be used for transmitting the

manifest data in the XML language. The

draft DTD appears in Appendix A to

this preamble. The XML-based manifest

would capture and record the same

waste shipment data as the paper form

and the EDI formats, and would have

functionality similar to EDI. The draft

DTD for the manifest is set forth in

detail in Appendix A to this preamble.

EPA requests comment on the XMLbased Internet Form manifest and the

draft DTD that we are proposing today.

4. What Comments Would Be Helpful

To EPA?

EPA requests comments on the

proposal’s electronic data interchange

(EDI) standard and the proposal to

include an XML-based Internet Forms

approach for the manifest. EPA solicits

specific comments on the following

issues.

a. Are the proposed EDI transaction

sets appropriate? EPA requests

comment on the proposal to use both X–

12 transaction set 856 (the Ship Notice/

Manifest) and transaction set 861

(Receipt and Advice) to convey all the

waste shipment tracking information

required by the hazardous waste

manifest. Are there significant business,

technical, or practical issues that might

arise from recording shipment tracking

information with two transaction sets,

rather than collecting the information

on one format? Would the proposed two

transaction set approach complicate the

ability to retrieve, reconstruct, and

inspect all the information about a

waste shipment after it has been filed?

Also, is EPA on target with its choice of

transaction sets? Are there other

business data that the regulated

community would like to be able to

transmit with data required by the

manifest, and should our choice of

transaction sets and implementation

conventions be revised to reflect this?

b. Is an XML approach feasible? EPA

acknowledges that XML is a relatively

new technology, and that industry

standards are generally lacking or only

emerging in this field of electronic

commerce. Is it feasible for EPA to

develop a Document Type Definition in

this rulemaking that would

‘‘standardize’’ the XML usage with

respect to the manifest, or is this not an

appropriate role for EPA? Would the

specification of a DTD accomplish our

objectives of ensuring free data

exchange and interoperability between

XML-enabled systems? Is XML a

sufficiently stable technology to support

EPA’s purposes?

c. Are there alternative formats that

EPA should consider? This proposal

would adopt ASC X12 EDI formats (the

X12 856 and 861 transaction sets) and

their implementation conventions as an

EDI standard for electronic manifesting.

Alternatively, the Internet Forms

approach based on the proposed XML

Document Type Definition could be

used by those wishing to use a non-EDI

solution for transmitting manifests on

the Web. EPA selected these standards

because they represent technologyneutral approaches that could be

supported by many vendors’ products,

and because they are mappable to and

can integrate with existing data systems.

EPA solicits comment on the merits of

the two optional electronic manifest

approaches proposed today relative to

other available options. The Agency

recognizes that there are many attractive

‘‘smart form’’ types of software products

and other systems available that could

be adapted to an electronic manifest.

The major shortcoming of these

products, in EPA’s view, is that they

typically are designed around a specific

vendor’s proprietary product. Thus, the

allowance of numerous proprietary

formats would likely hamper the free

exchange of manifest data and the

interoperability of electronic

manifesting systems. A variety of

proprietary solutions could have the

result of fragmenting the market among

several incompatible formats, and

actually might hamper the acceptance of

electronic manifests. Nevertheless, EPA

28278 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

requests comment on whether other

formats should also be recognized, and

if so, how the Agency might minimize

the conflict between different formats.

d. Should EPA Address Internet EDI

Distinctly? EPA has not included any

distinct content in the proposal to

address EDI conducted over the

Internet, such as ‘‘Web EDI’’ or EDI

transmitted over the Internet by secure

E-mail technology. The proposal

assumes that Internet EDI (i.e.,

transmitting EDI transaction sets via the

Internet) using the EDI formats proposed

in § 262.20(a)(4) would be an option

available to those wishing to conduct

electronic manifesting on the Internet,

in addition to the Internet Forms

standard proposed in § 262.20(a)(5). In

other words, with Internet EDI, the same

EDI transactions sets (ANSI X12 856 and

861) would be used to transmit manifest

data, but the Internet would replace

Value Added Networks as the delivery

mechanism. In this proposal, we are

distinguishing Internet EDI from the

Internet Forms approach, which does

not use ANSI X12 transaction sets to

exchange data.

Several products are now emerging on

the Internet that would perform socalled ‘‘Web EDI.’’ With Web EDI, data

entered at the client computer in

Hypertext Mark-up Language (HTML) is

converted at the server hosting the Web

EDI service to X12 standards and

transmitted to other trading partners as

EDI files. Once received in X12 format,

the recipient can then map the incoming

information to its specific data base

application. The ‘‘Web EDI’’ products

that are coming on-line require some

initial configuration by the user, but

beyond the requirement of browser

software, there is no need for local

installation of EDI translation software.

These services typically charge a small

sign-up fee, and charge a transmission

fee per transaction.

Should EPA support the availability

of both the Internet EDI and Internet

Forms methods as options for those who

would conduct waste manifesting on the

Internet, or, should EPA restrict Internet

users to one or the other approach? Does

EPA need to require the use of a VAN

for EDI transactions, or, could a less

expensive Internet-based means of

transmitting EDI data (e.g., E-mail or

File Transport Protocol) be allowed,

provided that companies implementing

this approach follow Internet

Engineering Task Force (IETF)

recommendations (e.g., use third party

ISPs and deploy security to protect such

transmissions from interception)? See

Requirements for Inter-operable Internet

EDI, EDIINT Working Group of the

IETF, July 8, 1997. Are other controls

beyond those referenced in the IETF

working document necessary to ensure

that Internet EDI is as secure and

auditable as traditional EDI conducted

on a VAN?

Also, if web sites hosting translation

services receive manifest data inputted

from a browser, and translate it to an

EDI compliant format, how would

signatures be applied to these

documents? Is it the HTML document or

the X12 document that would be

signed? Would the translation at the

server complicate the verifiability of any

digital signatures? Can ‘‘Web EDI’’ meet

all of this proposal’s requirements for

authentication, data integrity, security

and non-repudiation? Comments

responding to these questions would be

very helpful to EPA.

F. What Electronic Record System

Controls and Procedures Would This

Proposal Require?

The proposal would specify at

§ 262.26 a minimal set of controls and

procedures applicable to computer

systems that would prepare and process

electronic manifests. The Agency

believes that these system controls,

when combined with the requirement

that electronic manifest copies be signed

with secure types of electronic

signatures, would assure users and

regulators of the authenticity and

integrity of electronic manifest records.

Specifically, EPA believes that the

proposed electronic signature

requirements and computer security

controls address the following 5 key

concerns that have been brought to the

Agency’s attention as critical to the

reliability and enforceability of

electronic documents.

i. Identity. The proposed controls

would assist in demonstrating who

affixed their signature to the document.

Specifically, such controls as access

checks, audit trails, signature

agreements, and/or signature

verification processes should be helpful

to prevent unauthorized use of

electronic signatures.

ii. Intent. The proposed security

provisions would assist in showing that

the signor acted with the required intent

to adopt the document being signed or

to be bound by its contents. This may

also involve a showing that the signor

understood the significance of the

signature act, so that he or she cannot

later repudiate their signature as

unintended or mistaken. Signature

procedures that include warnings about

the consequences of affixing a signature,

and an opportunity to review and verify

the data presented for signature, should

aid in demonstrating the requisite

intent.

iii. Tamper-resistance. The proposed

security provisions would also assist in

demonstrating that a document was not

altered after signature, since the ability

to alter data after signature would

permit the signor to later repudiate a

document as different from the one that

he or she actually signed. Signature

methods that use encryption processes

to inextricably bind the signature to the

data signed can safeguard electronic

documents from subsequent alteration,

as can system audit checks that would

disclose any changes to a record, or

attempts to change a record.

iv. Availability. Copies of electronic

manifests should be maintained in such

a manner as to be accessible throughout

the record retention period. System

controls which require the retention of

information on software and hardware

versions used to create archived records,

as well as requirements to retain and

maintain previous versions of software,

hardware, and system documentation,

should ensure that this capability is not

compromised.

v. Interoperability and error detection.

Systems that would exchange electronic

manifests should be interoperable, so

that data are accurately and reliably

processed, signatures verified, and

security features necessary to data

integrity maintained throughout the

exchange of the electronic documents.

In addition, electronic systems should

be able to detect errors (i.e., altered/

corrupt data or invalid signatures), so

that invalid records can be flagged and

corrected. System security controls,

validation requirements, signature

verification requirements, and

requirements to respond to detected

errors and invalid signatures can

minimize the possibility of invalid

documents being passed by electronic

systems.

1. Validation of System Performance

and Training

EPA expects that waste handlers

would be able to select from numerous

hardware and software configurations

when establishing their electronic

manifesting systems. Such systems may

involve a combination of database

software, EDI translator or Internet

browser software and related plug-ins,

work flow management software,

operating system software, electronic

signature software, communications

software, and the related hardware that

is involved in creating, processing,

viewing, printing, and transmitting files.

The Agency also expects that these

automated systems may consist of both

customized systems designed by or for

the waste handler company, and ‘‘offthe-shelf’’ solutions developed by

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28279

commercial vendors that market

products designed specifically for

tracking hazardous wastes. In any case,

the proposed rule would require that

waste handlers establishing electronic

manifest systems validate their systems,

that is ensure that all the system

components (including security

features) operate together properly, that

system performance ensures accuracy,

reliability, and consistent, intended

performance, that components are fully

interoperable throughout the system,

and that the system can meet the

computer security requirements of this

section and good security practices

common to trusted electronic commerce

systems, and that appropriate

precautions have been taken to ensure

that these security measures cannot be

avoided or defeated. EPA believes that

validation of automated systems is

essential to establishing the reliability of

such systems and the accuracy of the

data they generate.

EPA is also proposing that the system

validation would be performed and

certified to by an independent thirdparty with expertise in information

systems and their security. EPA is

concerned that neither the waste

companies developing or acquiring such

systems nor the EPA or State RCRA

inspectors that would inspect facilities

for compliance with RCRA regulations

would possess the requisite skills or

expertise to validate electronic manifest

systems. In addition, the use of an

independent and qualified information

systems professional should ensure that

there has been an objective assessment

made of the system’s security features.

Since the trustworthiness and utility of

electronic records and systems would

depend heavily on the performance and

success of this validation step, EPA is

proposing that the qualified systems

professional would prepare a written

assessment with a certification

statement attesting to the system’s

performance. This written assessment

and certification statement would need

to be maintained among the facility’s

records, and made available on request

during any EPA or State inspection.

Under this proposal, for an electronic

system to be validated, the qualified

professional would need to certify that

the system generates and processes data

accurately and reliably, that the system

performs consistently and as intended,

that the system’s hardware and software

are fully interoperable with the

hardware and software of any other

systems with which manifests would be

exchanged, that the system is designed

and can be operated to meet all the

security requirements of this rule and

good security practices common to

trusted electronic data exchange

systems, and that appropriate

precautions have been taken to ensure

that these security measures cannot be

avoided or defeated.

EPA requests comment on the

proposed requirement for an

independent written assessment of

electronic manifest systems. Would

validation be more objective and helpful

if performed by independent

information systems professionals, or

would this add unnecessary burdens to

the validation procedure? With respect

to the system assessments, has EPA

proposed a reasonable set of criteria, or,

are there other information systems

audit criteria and good security

practices that we should require to be

included in the assessment and

certification? With respect to the

independent systems professionals, is

there some credential, training,

licensing or other qualification that EPA

should identify in the rule to ensure that

only qualified individuals perform these

validation assessments? EPA also

requests comment on alternatives to

independent third-party validation of

systems. Should EPA require that

software be developed by companies

independent of the waste handlers that

would use the systems? In the case of

systems developed independently of

waste handlers, and systems using ‘‘offthe-shelf’’ products, would third-party

validation be necessary? Answers to

these questions would be very helpful to

the Agency.

2. The Ability to Generate Accurate and

Complete Records Available for

Inspection

As an additional control on electronic

manifest systems, this proposal would

require that waste handlers’ systems

have the ability to generate accurate and

complete records in both electronic and

human readable formats, and which are

suitable for and readily available for

inspection and copying. In most

instances, facilities would retain their

electronic records in the electronic

formats in which they were created and

signed. However, during the course of

RCRA inspection, federal or state

inspectors may wish to have a human

readable copy generated that they may

inspect, copy, print, or remove from the

facility. Thus, the system must have the

capability of generating a readable copy,

as well as the electronic copy that is

electronically signed and retained as the

facility record for the 3-year retention

period required in these regulations. In

either case, the system records must

accurately and completely depict all the

information that was entered on the

record when it was created.

EPA emphasizes that the electronic

formats of records must be available for

inspection; it is not sufficient to offer

the inspector access only to paper

copies generated by the system. Access

to electronic records may be vital, since

the electronic records may often be the

format that would bear the electronic

signatures that would authenticate the

document and enable the inspector to

verify that the document has not been

altered. These electronic records may

also bear the metadata or audit trail

information which may have direct

bearing on the trustworthiness and

reliability of the record. The signed,

electronic copies may also be the format

required as evidence in any

adjudicatory proceeding in which the

data on an electronic manifest are

relevant to a disputed issue. In addition,

RCRA inspectors would be able to

conduct much more efficient

inspections of the electronic records

than of paper copies. EPA and the states

should be able to use efficient,

computerized methods to search

electronic records and detect trends,

inconsistent or erroneous information,

possible violations, or other problem

areas.

The inspector access required by this

proposal must be reasonable access,

consistent with section 3007(a) of the

RCRA statute. Section 3007(a) of the Act

states that any person who generates,

stores, treats, disposes, transports, or

otherwise handles hazardous wastes

must permit inspectors at all reasonable

times to have access to and to copy all

records relating to their hazardous

wastes. EPA understands that RCRA

inspectors would lack familiarity with

all the possible software that may be

used to store, index, and access

electronic records. However, the use of

electronic record storage systems must

not be allowed to become a barrier to

inspector access to manifest records.

Therefore, facilities should have a

knowledgeable person on the premises

who can assist the RCRA inspector with

the operation of the software that

searches and accesses stored manifest

records. The indexes or search engines

used to search and access these records

should be designed with a reasonably

intuitive user interface, so that the

RCRA inspector can, after a brief

orientation session, effectively operate

the system, select relevant search

parameters, find responsive records, and

validate electronic signatures on these

records. Nevertheless, the use of new

technologies compels the result that

access to records may generally require

28280 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

instruction from and the cooperation of

the facilities undergoing inspection.

The requirement to retain electronic

manifest records for inspection over

several years does raise an issue about

maintaining the ability to authenticate

these records. For example, with

electronic documents that are digitally

signed, this requires the digital

signature to be verified and the signer’s

digital certificate to be validated as of

the time of the signature. Is the longterm validation of such signatures

feasible, given the costs and technical

challenges of maintaining a long-term

capability to validate digital certificates?

Are there practical ways to ensure longterm enforcement capability and

liability protection for companies using

manifests without imposing the burden

and cost of indefinite signature

validation mechanisms?

3. The Ability To Protect Records

As a third control on electronic

manifest systems, the proposal would

require that these systems be designed

and operated so that they protect

electronic records from damage or

alteration, and ensure their accurate and

ready retrieval during the entire record

retention period. The RCRA regulations

generally require that manifest records

be retained for a 3-year period.

This control entails more than

controlling access to data and audit trail

protections against erasures and

alterations caused by accident,

vandalism, fraud, or sabotage; it also

requires that systems and storage media

be protected against possible physical

causes of damage, such as contact with

heat, fire, magnetism, water, etc. The

system must also create secure back-up

copies of records or otherwise provide

for data recovery in the event of damage,

errors, or a disaster.

The proposed requirements that

records be protected and remain

accessible throughout the record

retention period imposes additional

obligations with respect to system

upgrades and revisions. As system

upgrades are implemented, it is possible

that the newer hardware and software

may not be able to read or process files

created with earlier versions of software

or hardware. Therefore, facilities must

either convert their files so that they can

be accessed by the upgraded system, or,

retain adequate hardware and software

to ensure that electronic manifests

remain accessible throughout the

document retention period. Facilities

should also retain information on which

software version was used to create their

records.

EPA has not specified in this proposal

any particular storage media for

retaining manifest records. Concerns

have been expressed that such records

should be retained on a more permanent

medium, such as a CD–ROM. The

Agency requests comments on the

appropriateness and feasibility of a

requirement that manifest records be

periodically archived on a write-once,

read-many medium.

4. The Ability To Limit System Access

and Conduct Authority Checks

Authority checks are security devices

that grant access to a system or to

specific data only when an individual

seeking access can establish (typically,

by entering a User ID or password when

prompted) that their access has been

authorized. Access controls and

authority checks form the first line of

defense of record authenticity and

integrity, since they support user

identification and authentication. The

proposed rule would require that

electronic manifest systems be designed

and operated with controls (e.g., User

ID’s and passwords) that limit system

access to only authorized individuals,

that is, individuals who are authorized

to act for and bind the organization in

creating, signing, or processing

manifests. The integrity of an electronic

records system would be readily

assailable if unauthorized individuals

could enter the system, override

security measures, and thereby read or

alter records that they are not

authorized to see or manipulate.

Uncontrolled access could leave a

system vulnerable to sabotage or

industrial espionage, and open up

opportunities for signers to repudiate

the genuineness of signed records.

Therefore, basic system access controls

must be included in every electronic

manifest system. Such controls would

include assurances that:

• Unique identifiers (e.g., User IDs)

are assigned to each authorized person,

and the identifiers assigned uniquely

identify the user to the system, so that

the system can authenticate the user,

and ensure individual accountability;

• User authority is defined, and users’

access is limited to data required to

perform job tasks or other user needs;

• Procedures are in place for User ID

and password administration and

termination;

• The system enforces secure

password procedures and access

controls;

• Access and authentication policies

and procedures are documented, shared

with users, and reviewed periodically;

and

• Auditable logs are retained of logon attempts, and log-on failures or

rejections.

The proposed rule would also require

authority challenges and other checks to

be included at critical points in the

system, to ensure that only authorized

individuals can use the system, sign

records, access input or output devices,

alter a record, or perform other discrete

system operations. Keeping these

functions confined to authorized

persons is essential to protecting the

integrity of records and ensuring record

accuracy and reliability. While EPA

believes that the inclusion of such

authority checks is fundamental, it

would be up to each organization to

determine the nature, scope, and

mechanisms for performing these

checks.

5. Use of Secure Audit Trails

Because it is important to know that

electronic records remain complete and

accurate during their entire retention

period, the proposed rule would also

require audit trail controls to be

implemented. In this regard, the

proposal would require the use of

secure, computer-generated, timestamped audit trails to independently

record the date and time of operator

entries and actions that create, modify,

or delete any electronic records. This

control would require that a complete

and accurate history of each record be

retained, and would preclude

modifications that would overwrite or

obscure previously recorded

information. In other words, the secure,

computer-generated audit trail would

provide a lasting record of who did

what to a record, and when it was done.

These audit trail records shall be

retained for the same period of time

(generally 3 years) as the electronic

manifest records, and they shall be

made available for inspection upon the

request of a RCRA inspector. The audit

trail information may be retained as a

part of the electronic manifest record, or

as a separate record.

The Agency emphasizes the need for

strict objectivity in recording audit trail

information such as date and time

stamps. Therefore, EPA believes that it

is vital that this audit trail information

be created automatically by the

computer system, independently of

system operators. Also, the requirement

that audit trails be secure means that

operators shall not have the ability to

either write or modify this data. The

history of the record must be preserved,

and individual accountability for record

integrity maintained.

6. Software-Based Work Flow Controls

and Operational System Checks

A key component of a secure and

reliable electronic manifest system

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28281

would be work flow management

software that implements the logic rules

and process underlying the manifest.

During our Manifest Automation Pilot

tests, EPA gained special appreciation

for the significance of these softwarebased controls. The manifest work flow

is very complex; the manifest must be

routed among generators, transporters,

and waste management facilities in the

proper sequence, and specific data must

be entered by specific waste handlers

(and signatures applied) at specific

points in the circulation of the manifest.

Multiple copies must also be distributed

at appropriate times. Unlike the current

paper manifest, copies of the electronic

manifest may not physically accompany

and be passed with the waste itself.

Therefore, it is essential that an

electronic system not leave the routing

of the manifest and its proper execution

to chance.

To ensure the reliability of the

electronic manifest, EPA is proposing

that electronic systems be designed with

software-based work flow controls and

operational system checks to oversee the

work flow process. This work flow

management software would ensure that

the electronic manifest is routed to all

waste handlers in the proper sequence,

that waste handlers are prompted to

sign manifests electronically in the

proper sequence and on the appropriate

signature blocks, that data entered by

previous waste handlers cannot be

altered once the previous handler has

signed the document, and that the

appropriate signed copies of the

manifest are distributed to each waste

handler involved with a shipment.

Another possible work flow and

operational check would address an

electronic manifest system’s response to

invalid signatures. The proposal would

require that electronic signatures (digital

signatures and secure digitized

signatures) be capable of being verified.

Both of these signature methods include

document binding features (e.g.,

encrypted hash function or checksums)

which enable the recipient to verify that

a document has not been altered or

corrupted since it was signed. What

should be the appropriate system

response when an invalid signature is

detected? Should EPA include in the

work flow controls a requirement that

users be alerted to an improperly signed

manifest and that the software block

further use or transmission of an invalid

electronic manifest until it has been

replaced with a valid manifest for which

the electronic signature can be verified?

Alternatively, should the system be

designed only to detect invalid

signatures and alert the recipient to the

requirement to obtain a valid manifest

before proceeding? In the latter case, the

manifest use regulations could be

revised to make it absolutely clear that

one may not use an electronic manifest

shown to be invalid, but the electronic

system would not itself block the use.

EPA requests comments on these

alternatives, and whether the final rule

should include one or the other of these

additional work flow controls.

7. Software-Based Data Presentation

Features and Signature Prompts

Today’s proposal includes two

distinct electronic manifest formats, the

proposed EDI format and the proposed

Internet Form manifest in the XML

language. While the Internet Form

approach would typically present

manifest data in a human readable form

that looks like the paper form, the

proposed EDI format includes codes and

headings that may complicate the

viewing of the embedded manifest data.

This could be a concern, if the result

were that a user wishing to sign the EDI

manifest could not readily recognize

and verify the data entered prior to

signing the document. EPA believes that

it is important to the accuracy and

trustworthiness of electronic records

that those using the EDI formats to

satisfy regulatory requirements have a

meaningful opportunity to verify data

before applying their electronic

signatures. Therefore, EPA is proposing

that systems using the EDI formats must

be able to display the manifest data to

those signing manifests in a human

readable format that permits the user to

readily verify the entered manifest data

prior to applying a signature. In

practice, this would require that the

data be displayed for the signor with the

form’s predetermined field labels, so

that there could be little doubt that the

data entered relates to a specific data

field of the manifest. EPA requests

comment on the feasibility of including

these data presentation and verification

features as system design requirements,

particularly with respect to EDI systems.

Typically, EDI systems are designed to

minimize human involvement in data

exchanges between automated systems.

However, when an EDI system is used

in a business process such as the

completion of manifests, the affixing of

electronic signatures is by nature an

interactive process. Today’s proposal

would only require that the data

presentation presented to the signor at

the time of signature include the human

readable display with the field labels.

The proposal would not require these

display features to be included as a part

of the EDI document itself, which

would, of course, comply with ANSI

X12 structure and syntax requirements.

Moreover, there is a concern that

electronic signature methods that

deviate significantly from the traditional

signature ceremony may not seem as

formal or ‘‘official’’ as conventional

handwritten signatures. For example, a

digital signature may be executed by a

mouse click on an item displayed on the

computer screen. Therefore, EPA is

proposing that electronic manifest

systems display a warning message

when users are prompted to

electronically sign manifests. The

warning should appear clearly and

conspicuously, and should advise the

signer that their electronic signature

constitutes a signature for all legal

purposes. This message would also

remind the signer of the possible civil

and criminal sanctions for the misuse of

an electronic signature. For digital

signatures, the warning message would

remind signers that digital signatures

can only be used by the person

identified as the subscriber in the digital

certificate, and that the right to use

one’s private key to execute digital

signatures cannot be delegated to

another. The proposed form of the

signature prompt warnings is set out at

proposed § 262.26(c)(7). EPA requests

comment whether these warnings

should be displayed for all electronic

manifest systems. For example, the

‘‘secure digitized signature’’ method

discussed later in this preamble would

require the signer to execute their hand

signature on a digitizer pad. Is it

necessary to display the proposed

warning messages for this method of

signature, or should the warnings be

included only in systems that

incorporate the digital signature

method, which does not involve a

conventional signing ceremony? Also,

for digital signature systems, should a

warning be displayed prior to executing

each signature, or could the same

warning be conveyed more effectively at

the time a user receives a digital

certificate?

8. Full Interoperability of System

Software

The quality and reliability of

electronic manifest systems and data

depend heavily on system developers

using software that consistently

supports and executes the standard

electronic formats, electronic signatures

and their verification, the work flow

processes that ensure that manifests are

routed, signed, and copied

appropriately, and the audit trail and

other security features of proposed

§ 262.26. If the software used within an

entity, or between entities that exchange

manifests, cannot consistently

implement these features, then the

28282 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

reliability and integrity of electronic

manifests would be impaired. Therefore,

EPA is proposing today that electronic

manifests systems shall be designed and

tested to ensure full interoperability of

the software components, so that the

above features are supported and

executed consistently throughout the

period that a manifest record resides on

a system or is exchanged among waste

handlers participating in an electronic

system. If a person or entity wishes to

exchange electronic manifests with

another’s system, the other system’s

software must also be fully

interoperable with the software of the

first system. EPA cannot designate a

particular software configuration or

specific vendors’ products as required

or recommended to meet the standards

proposed today. However, consistent

implementation and software

interoperability are essential

requirements for trustworthy electronic

systems, and system software must be

tested and validated for such

performance as a part of the system

validation assessment that would be

required under proposed § 262.26(c)(1).

One may not exchange manifests

between system components, or

between other systems, if

interoperability and consistent

performance have not been assured.

EPA requests comments on this

proposal. Some have suggested that EPA should

do more to ensure the quality,

reliability, and interoperability of the

software that entities adopt to

implement the electronic manifest.

Apart from the system validation

assessments discussed above, there is a

concern that available software

components that companies might

select for their systems should be

evaluated more closely at the outset

(i.e., prior to its being available for use

in a manifest system) to ensure that it

is properly designed and shown to be

able to meet this rule’s security and

other performance standards. If software

is not closely evaluated for quality,

reliability, and interoperability, greater

risks might arise that software used by

different entities (or even within the

same entity) would not perform

consistently. Thus, the risks become

greater that a software product on one

system would be unable to prevent or

detect data alteration or corruption,

unable to recognize the processes used

by other software to validate signatures

or to bind signatures to record content,

unable to route manifests correctly, and

unable to maintain auditability of

transaction events. Similarly, if software

is not evaluated closely for quality and

performance, there is the risk that

software may include unnoticed flaws

that undermine its security features.

Such flaws could later be seized upon

by those challenging the accuracy of

electronic data, and could be a basis for

invalidating manifests that were

processed using the defective software. While EPA believes that the system

validation and certification

requirements proposed above can

diminish these risks, EPA requests

comment on whether additional

software evaluation mechanisms are

necessary. If additional measures are

warranted, how would they be

structured and implemented? How

would such additional evaluation

measures enable EPA to ensure that the

criteria of this rule are being met and

applied consistently? What would be

the benefits and adverse consequences

of establishing additional evaluation

steps? A separate issue relates to how EPA

and the States can know that new

electronic manifest systems are being

implemented. EPA is taking comment

on one additional measure, which

would require system sponsors to notify

EPA on a one-time basis that they have

developed and would be implementing

an electronic manifest system. With

such information, EPA would be able to

gauge the timing and scope of the use

of electronic manifests, aiding the

Agency’s training and outreach efforts

and providing the basis for future data

collections to evaluate electronic

manifests. Notification would not be

required from every waste handler using

such a system, but only from the entity

sponsoring or operating the electronic

manifest system. EPA requests

comments on whether such a one-time

notification requirement would act as a

disincentive to the adoption of

electronic manifests.

9. Controls Over System Documentation

Errors in conducting system

procedures and system maintenance are

likely to occur unless controls are

applied to the systems documentation

that describes how a system operates or

is maintained, including standard

operating procedures. System

documentation should fully and

accurately describe the procedural

controls employed in creating and

maintaining records, and account for

each link in the chain of events that

produce records and preserve their

integrity. This proposal would require

the establishment of controls over this

system documentation, including

adequate controls over the distribution

of, access to, and use of the

documentation. This requirement would

extend to revision and change control

procedures as well.

10. Policies Holding Individuals

Accountable

Any falsification of a signature or

record is a serious matter, regardless of

whether the falsification occurs with a

paper or electronic record. In this

regard, EPA emphasizes that the

falsification of an electronic signature or

the making of false representations in

connection with an electronic manifest

would be punishable by law and would

carry the same penalties as similar acts

done with paper manifests and ink

signatures. Under RCRA Section

3008(d)(3), for example, any person who

knowingly omits material information

or makes false material statements or

representations in any manifest, record,

or other document prepared for

purposes of compliance with RCRA

regulations may be subject, upon

conviction, to criminal sanctions that

may include a fine of not more than

$50,000 for each day of violation, or,

imprisonment not to exceed two years,

or both. In addition, 18 U.S.C. 1001

states more generally that false,

fictitious or fraudulent statements or

representations to the government may

subject a person to criminal penalties.

Despite these strong sanctions that are

well understood in the paper

environment, there may be a perception

that electronic signatures are less formal

than handwritten signatures, and this

may cause some to believe that errors or

falsifications associated with their use

are not as serious as errors or

falsifications in signing paper records.

Therefore, the proposed rule would

require organizations using

electronically signed electronic

manifests to establish and adhere to

written policies that hold individuals

accountable and responsible for actions

initiated under their electronic

signatures. These policies are intended

as a further deterrent of record and

signature falsification. The individual

employees who are subject to such

policies would better understand the

seriousness and consequences of

signature or record falsification. Of

course, a broad range of disciplinary

measures would be available to

organizations under their written

policies, and organizations should have

appropriate discretion to tailor their

disciplinary actions so that they provide

reasonable sanctions that address the

level of employee complicity and intent,

while deterring the more serious acts.

The intent is that such policies would

be implemented and enforced in a way

that promotes a strong security

environment.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28283

In addition, EPA believes that the

proposed digital signature and secure

digitized signature methods discussed

in section VII.H. of this preamble

provide a reasonable basis for applying

strict accountability policies. Digital

signatures are not trustworthy if the

‘‘private key’’ of the signer is

compromised. The compromise of a

private key would likely involve either

the complicity of or serious negligence

of the owner of the key, such as

allowing access to one’s smartcard or

hard disk where the private key is kept,

along with the password or PIN

necessary to use the private key.

Likewise, one should be accountable if

they allow others access to their signing

devices (e.g., a digitizer pad) in such a

way as to provide them the opportunity

to ‘‘forge’’ an electronic signature.

EPA requests comments on this

proposed set of system controls and

procedures. Do these measures define

an adequate computer security program

that would ensure data integrity and

record authenticity? Do these proposed

controls provide sufficient flexibility?

Can these controls be incorporated

practically into commercially available

products, and included in waste

handlers’ operations? How might EPA

improve on these controls to make them

more understandable and easier to

implement?

11. Other System Requirements

In addition to the security and

operational controls discussed above,

today’s proposal also includes several

definitions of terms that are intended to

provide greater certainty insofar as

when an electronic manifest

transmission has been received, and

when there may be an obligation to

retransmit an electronic manifest.

Proposed § 262.26(e) would define an

electronic manifest to be received by the

recipient when it is accessible to the

recipient in a format that the recipient

can read. Should a recipient receive an

unreadable transmission, or one bearing

evidence of data corruption (e.g.,

garbled text or hash functions that do

not calculate correctly), he or she would

be required to request that the sender retransmit a proper copy. Moreover,

proposed paragraphs (f) and (g) of

§ 262.26 would aid the sender in

establishing the fact of receipt by the

recipient. § 262.26(f) would require

recipient’s systems to send promptly

(typically, an automated, immediate

response) an acknowledgment of receipt

to the sender to acknowledge that a

readable record was received by the

recipient’s system. According to

proposed § 262.26(g), the

acknowledgment of receipt from the

recipient would establish conclusively

the fact of receipt and the date of

receipt. These proposals should provide

assurances to the sender that their

electronic transmissions were received

in good order, and minimize the

possibility of repudiation of the fact of

receipt at a later date. Finally, proposed

§ 262.26(h) would create an obligation

on the part of the sender to re-transmit

an electronic manifest for which a

positive acknowledgment of receipt was

not received by the sender within 12

hours of the original transmission, while

proposed § 262.26(i) would clarify that

the inability of one to transmit a valid

electronic manifest does not excuse that

person from the obligation to initiate a

hazardous waste manifest for their

shipment. If a system is not operating

properly and would not transmit valid

manifests, the person responsible for

providing a manifest must then use a

paper manifest to accompany and track

the progress of the waste shipment.

Similar proposals regarding receipt,

acknowledgment of receipt, establishing

date of receipt, retransmission, and

inability to transmit are included for

transporters and TSDFs. The similar

transporter proposals are included at

proposed § 263.23(d)–(g), while the

proposed provisions applicable to

facilities are set out at proposed

§§ 264.78(f)–(j) and 265.78 (f)–(j). EPA

requests comment on the

appropriateness of these proposed

terms, and whether they would meet

our objective of establishing with

certainty when electronic manifests are

received and when they must be retransmitted or replaced.

G. EPA’s Proposed Electronic Signature

Standard

1. Why Are Signatures Important to the

Manifest?

A significant issue in this rulemaking

is the designation of an electronic

signature method that would be at least

as secure and trustworthy as the

conventional handwritten signature that

has been in use for hundreds of years to

authenticate paper documents. As a

general matter, a signature is used to

bind an individual signer uniquely to

the text of a signed document, so that

the source of the document can be

clearly established, and so that the

signer cannot later repudiate the

transaction. Thus, signatures aid the

authentication of a document.

In the context of the hazardous waste

manifest, signatures also play more

specific roles. The required manifest

signatures are used to support

certifications by waste handlers to

specific facts, and more generally, to

show the change of custody of waste

shipments during their transportation to

off-site treatment, storage, or disposal

facilities. The hazardous waste

generator initiates the manifest with its

signature certifying that the contents of

the shipment are fully and accurately

described on the manifest by proper

shipping name, that the contents are

properly classified, packed, marked, and

labeled, and that the shipment has been

prepared properly for highway

transportation. When the shipment

arrives at the designated waste

management facility, the TSDF signs the

manifest as well, and this signature acts

as its acknowledgment of the receipt of

the shipment, except as specifically

noted in the discrepancy space (current

Block 19) of the manifest. In addition,

as hazardous waste transporters accept

custody of the shipment, they also sign

off on the manifest form in the

designated transporter blocks, and thus

acknowledge with their signatures that

they have received the materials.

Since the inception of the manifest in

1980, EPA’s manifest regulations have

required the hand-signed signatures of

waste handlers to demonstrate the chain

of custody, and to certify that the

shipment was prepared properly by the

generator or received by the TSDF.

During public meetings conducted by

EPA in December 1997 and January

1998, nearly all stakeholders attending

voiced their support for retaining the

role of signatures in the manifest. EPA

believes that signatures are an effective

means of demonstrating custody and

acknowledging accountability.

Therefore, this proposal would retain

the role of manifest signatures, while

authorizing the use of certain electronic

signatures in automated systems.

2. What Are the Concerns With

Electronic Signatures?

Hand-signed signatures are not

perfect, and it is not uncommon for

handwritten signatures to be the subject

of crude or sophisticated forgery

attempts. Nevertheless, the

characteristic signature of each

individual is an attribute that follows

the individual and identifies him or her

fairly uniquely to those who are familiar

with and can recognize such a signature.

When disputes arise, the courts are also

familiar with the methods for using

hand-signed records as evidence, and

the types of expert testimony that can

help resolve issues surrounding a

disputed signature.

Electronic signatures are relatively

new, and there are numerous

technologies which purport to provide

signature solutions that equal or exceed

the level of assurance provided by

28284 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

handwritten signatures. The

technologies tend to be complex, and

there is some concern that these

technologies have not undergone the

kind of review which conventional

handwritten signatures have over many

centuries of use.

The Agency understands the basis for

this concern, and believes that over

time, experience with the available

signature methods would mitigate much

of the concern. EPA believes that the

electronic signature approaches

proposed today can be made reliable

and verifiable, so that they would

identify individual signers of manifests

to a very high legal and technical

standard.

3. How Does Today’s Proposal Address

Electronic Signatures?

Today’s proposal would require that

electronic manifests be electronically

signed with either a ‘‘digital signature’’

or a ‘‘secure digitized signature.’’ The

proposal clarifies that electronic

manifest copies bearing proper

electronic signatures are the legal

equivalent of paper manifests bearing

handwritten signatures, insofar as

meeting any requirement in these

regulations to sign a manifest, to use a

manifest, or to retain a copy of a

manifest as a record.

The proposed amendments

recognizing electronically signed

manifests are found in proposed

§ 262.25, entitled Manifest Electronic

Signatures, and in proposed § 262.26,

which addresses electronic manifest

systems and their security. These new

provisions would together clarify that a

manifest may be signed by either

affixing a handwritten signature to a

manifest form, or by signing an

electronic manifest with a digital

signature or secure digitized signature.

Each mode of signature would be a valid

method for a signer to authenticate the

manifest. In this context, the term

‘‘authenticate’’ means simply that the

signer is acknowledging that he or she

is the source of the document that is

signed, and that he or she approves or

adopts the statements to which the

signature relates. For electronic copies,

§ 262.26(a) states that electronic copies

which are initiated and stored in

computer systems which meet the

§ 262.26(c) procedures and controls, and

which are electronically signed with

signatures that meet the proposed

§ 262.25 electronic signature standards,

may be used in lieu of hand-signed

paper manifest copies to meet the

manifest initiation, use, and retention

requirements in the RCRA regulations.

Proposed § 262.25 includes at

§ 262.25(a) a definition of ‘‘electronic

signature.’’ This term is defined

generally to mean a method of signing

an electronic document with a computer

generated symbol or series of symbols in

a way that indicates that a particular

person as the source of the document,

and indicates such person’s approval of

the content of the document, or an

intent to be bound by the document.

While this definition is technology

neutral, paragraphs (b) through (f)

would clarify that electronic manifests

must be signed with one of two types of

electronic signatures, the ‘‘digital’’

signature method proposed in

§ 262.25(c)–(f), or, the ‘‘secure digitized

signature method’’ proposed in

§ 262.25(g). Proposed § 262.25(h) would

establish a rebuttable legal presumption

that may be of evidentiary value in

adjudications that might arise

surrounding electronically signed

manifests. Under this proposal, proof

that a particular individual’s electronic

signature was affixed to an electronic

manifest would be evidence, and could

suffice to establish that the individual

identified as the signor affixed the

signature and did so with the intent to

sign the electronic manifest to give it

effect.

4. What Is a ‘‘Digital Signature?’’

Section 262.25(b) of today’s proposal

would clarify that one type of electronic

signature that may be used to

authenticate the electronic manifest is a

‘‘digital signature.’’ Section 262.25(c)

contains a definition of ‘‘digital

signature’’ which explains that this is a

specific form of electronic signature

which is based on asymmetric

cryptography. This type of

cryptographic method is also known as

private key/public key cryptography,

since it relies on the mathematical

relationship between a pair of ‘‘keys’’

(which are very long numbers) to

execute and verify a signature. The

technical basis for this signature

technology is described below in greater

detail.

This digital signature method

proposed today in § 262.25(c)–(f) offers

several performance advantages which

ensure both reliable authentication and

data integrity for electronic documents.

Digital signatures are powerful

authentication devices, because they

are:

• Unique to the signer,

• Under the signer’s sole control,

• Capable of being verified, and

• Linked to the data, so that any

change to the data would cause the

invalidation of the signature.

Thus, in addition to identifying the

signer of a document, a digital signature

has the additional advantage of

providing positive verification that the

electronic document has not been

altered since it was signed. Thus, digital

signatures provide enhanced security

and data integrity when compared with

personal identification numbers (PINs)

and other types of electronic signatures.

This also makes the digital signature

approach more suitable for use in open

systems such as the Internet. While the

open network may itself be difficult to

secure, the digital signature makes it

possible to secure the individual signed

documents, thereby ensuring the

authenticity and integrity of records that

are transmitted and received.

5. How Do Digital Signatures Work?

A digital signature is based on

cryptography, which is an area of

applied mathematics that is more

commonly associated with scrambling

and unscrambling transmitted messages

so that they remain confidential. In

creating and verifying digital signatures,

however, there is no encryption of data.

Instead, the cryptographic process is

used only for authentication purposes.

Digital signatures rely on asymmetric

or public key cryptography. In a public

key system, each user would have two

distinct keys known as the ‘‘public key’’

and the ‘‘private key.’’ The two keys in

each key pair are mathematically related

in such a way that: (1) the public key,

and only the public key, can

authenticate a message that was

digitally signed with the related private

key; and (2) one cannot feasibly

determine or calculate the private key

from knowledge of the public key. Once

a user has a key pair, he or she must

keep the private key secure from

disclosure and never transmit it. On the

other hand, the public key is distributed

freely to all those with whom the user

corresponds. Messages digitally signed

with party A’s private key can be

authenticated by party B using A’s

public key which A has distributed or

published. The great advantage of

asymmetric cryptography is that

communications can be secured across

open networks, without the need to

share or distribute any secret keys.

Digital signatures are possible because

of the key pair relationship in

asymmetric cryptography. This follows

from the fact that if A’s public key is

able to validate the digital signature on

a message received by B, then B knows

with reasonable certainty that the

message could only have been digitally

signed with the corresponding private

key that is held only by A. So, a digital

signature created by party A when he

‘‘signs’’ an electronic message using A’s

private key can be verified by party B

with A’s public key, and this validation

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28285

would authenticate A as the source of

the document.

The creation and validation of digital

signatures is an involved process that

involves complex mathematical

operations known as encryption

algorithms. However, the computations

that create and validate digital

signatures are conducted by signature

system software, and occur

transparently to the user. The

complexity of the calculations is also

what ensures the strength and security

of the digital signature method.

To create a digital signature, the

signer of a document first uses his or her

signature software to create a digital

‘‘fingerprint’’ of the document or

message that is being signed. A ‘‘hash

function’’ is applied to the message, and

the hash function acts on all the binary

data in the document to produce a

numerical result that is unique to the

document. If even one character or

punctuation mark in the document is

changed, the hash function would

compute a different numerical result for

the document. This unique calculated

number thus represents the entire

document, and is called the ‘‘hash’’ or

‘‘message digest.’’ The signer’s software

then uses the message digest value and

the signer’s private key to generate the

digital signature value. This value is

forwarded to the recipient along with

the text of the document. Upon receipt,

the recipient’s software verifies the

message digest with the sender’s public

key, and also runs the hash function on

the text of the received message. If the

sender’s public key successfully

recovers the message digest, and the

numerical result of the recovered digest

matches the number calculated by the

recipient’s hash of the received text,

then the digital signature is verified.

Verification thus indicates that the

digital signature was created with the

signer’s private key, and secondly, that

the document was not altered since it

was signed.

6. What Digital Signature Algorithms

and Key Lengths Are Acceptable?

This proposal would require that

electronic manifesting systems include

application support for creating and

validating digital signatures that comply

with existing standards. Currently, there

are several algorithms which can be

used to generate a digital signature. In

December 1994, the National Institute of

Standards and Technology (NIST)

adopted the Digital Signature Standard

(DSS) as Federal Information Processing

Standard 186. The 1994 DSS referenced

the Secure Hash Algorithm (SHA) as the

required method for calculating message

digests. The SHA is a Federal

Information Processing Standard that

was published by the NIST in April

1995 as FIPS PUB 180–1. According to

the Federal DSS, the message digest

calculated under the SHA is then input

to the DSS’s Digital Signature Algorithm

(DSA), and the resulting encryption of

the message digest creates the digital

signature. The DSS was developed to be

a standard for federal information

systems, in order to improve the

utilization and management of

computer and related

telecommunications systems in the

Federal Government.

Despite the specification by NIST of a

specific DSS for federal systems, few

signature software products were

developed that supported the 1994 DSS.

Instead, many of the commercial

signature products have tended to

embrace the algorithm developed by

RSA Data Security. Because the RSA

algorithm has been demonstrated to be

strong and effective, and also because of

its widespread commercial acceptance,

the NIST determined in December 1998

to include the RSA algorithm in the

Federal DSS. Thus, either the earlier

DSA announced in 1994 by NIST or the

RSA algorithm described in ANSI

standard X9.31 may now be used for

generating digital signatures in federal

information systems. See NIST FIPS

PUB 186–1, December 15, 1998.

In light of NIST’s recent acceptance of

the RSA algorithm, EPA is today

proposing that digital signature

products used in connection with the

hazardous waste manifest must support

the Secure Hash Algorithm (for creating

message digests) described in FIPS PUB

180–1, and the RSA digital signature

algorithm (see ANSI X9.31), in

accordance with FIPS PUB 186–1,

December 1998. The RSA algorithm is

well understood and has been carefully

tested, and should provide adequate

strength and security for the foreseeable

future. EPA believes it is appropriate to

standardize manifest digital signatures

around the RSA signature algorithm, to

facilitate the use and ready verification

of digital signatures generated by

various commercial signature products.

Digital signature products used in

connection with the manifest shall

support ANSI X9.31 key generation

methods. The modulus, which reflects

the strength of the encryption used in

creating a digital signature, shall not be

less than 1024 bits.

EPA requests comment on the

designation of the RSA algorithm and

FIPS PUB 186–1 as the standard for

manifest digital signatures.

7. Is a Digital Signature Alone Sufficient

to Identify Individual Signers?

No. It must be emphasized that,

unlike a handwritten signature, a digital

signature is not a personal attribute or

characteristic of the signer. When a

recipient validates a digital signature

with the sender’s public key, the

validation only establishes the fact that

the public key and private key are

mathematically related. The

relationship of the keys to the

individual signer is not certain, without

additional safeguards that help to bind

the signer to the use of the private key.

To ensure the reliability of digital

signatures, two potential weaknesses

must be safeguarded. First, it is essential

that the holder or ‘‘owner’’ of the private

key maintains the security of the private

key. If one’s private key is stolen, lost,

or otherwise compromised, then the

digital signature system may be

compromised. An imposter could then

use a stolen private key to sign

documents that would appear to be

signed by and bind the owner of the

key, and unless recipients were made

aware of the theft, the public key would

appear to validate the imposter’s

signature. Second, there must be

involved a ‘‘trusted third party’’ to

ensure that the identity of the

individual and his or her public key are

securely bound together in the form of

a digital certificate, and that all such

certificates are properly issued and

managed.

8. How Would Today’s Proposal Deal

With the Security of Private Keys?

Today’s proposal would require that

individuals protect their private

signature keys from disclosure or other

compromise. As discussed below, the

discovery that a private key has been

compromised creates obligations to

notify appropriate authorities, who

would then provide notice that the

certificate associated with that key has

been revoked. In addition, the electronic

manifest system controls discussed

above in section VII.F. of this preamble

would require that organizations using

electronic manifest systems have

policies in place that hold individuals

accountable for actions initiated under

their electronic signatures. Since

employees would be aware of this

accountability and the sanctions that

their employer may impose for

intentional or careless conduct

involving their private keys and digital

signatures, EPA believes that such

controls would provide a reasonable

deterrent against signers compromising

the security of their private keys. These

requirements are no more demanding

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than those generally accepted by the

public in connection with lost credit

cards. When EPA publishes its

supplemental notice detailing the

manifest PKI, we will provide more

information on the proposed security

requirements for digital signatures.

Today’s proposal would not, however,

require that digital signature systems

used for signing manifests employ a

tokenized digital signature. With

tokenized digital signatures, the private

key that creates the digital signature

resides on a ‘‘smart card’’ or other

hardware token, which is carried on the

person of an individual signer and

accessed with a password or PIN that

only the individual would know. Such

a hardware-based implementation of a

digital signature system can enhance the

security of the system beyond that

attainable under a system where the

private key resides on software stored

on one’s hard drive or network server.

Hardware-based systems provide greater

security because the hardware token ties

the signature act more closely to the

individual holder of the token. A

hardware-based system also protects the

private encryption key from attacks by

hackers or saboteurs. EPA is not

proposing the use of the hardware-based

approach, because we believe that

manifest digital signatures would be

sufficiently secure when implemented

with software, and because the use of

hardware tokens adds additional cost

and complexity (installation of card

readers) which are not warranted in this

application. Organizations desiring

higher levels of signature security

would of course have the option of

implementing a ‘‘smart card’’ or other

token-based approach. The Agency

requests comment on this issue.

9. Why Is a ‘‘Trusted Third Party’’

Necessary for Digital Signatures?

Beyond the problems presented by

loss or theft of private keys, there is a

more fundamental issue associated with

the creation and use of a digital

signature. Validation of a signature with

a public key only verifies the

relationship between the keys in a given

private key/public key pair. As an initial

matter, therefore, one must have some

objective means of validating that the

person who subscribes to or ‘‘owns’’ a

given key pair is who they say they are.

This need goes to the issue of

establishing the bond between the

individual signer and the key pair that

was generated arbitrarily by the digital

signature system.

In digital signature systems, the role

of the ‘‘trusted third party’’ that would

vouch for the bond between a particular

individual and a private key/public key

pair is played by Certification

Authorities. The Certification Authority

(CA) must obtain from individual

subscribers some type of proof (e.g., a

driver’s license or Social Security

Number) to establish the identity of the

subscriber. In this sense, the CA

functions like an electronic notary that

certifies that an individual is who they

claim to be. When the CA is satisfied

with the subscriber’s identity proof, it

issues a digital certificate that identifies

the individual subscriber and their

associated public key. The CA signs the

subscriber’s digital certificate with its

private key, so that recipients can (with

the CA’s public key) validate that the

certificate is authentic and in fact

originated from the CA. Then, when the

subscriber uses its private key to sign a

document, he or she could also send a

copy of the CA’s certificate with the

transmission to the recipient. The

recipient’s application could then verify

that the document was signed with the

subscriber’s private key, and also verify

that the certificate is a valid certificate.

Enabling the validation of certificates is

an essential function of the CA, which

must track certificates that have been

revoked (e.g., a key was compromised or

an employee terminated) or that have

expired. So, by checking the CA’s online registry or data base of revoked

certificates, or lists of revoked

certificates published in other places,

the recipient of a digitally signed

document can determine whether it

should rely on a given certificate and

digital signature.

10. What Digital Certificates Would Be

Required Under Today’s Proposal?

An international, standardized format

has been established for digital

certificates, so that digital signature

systems may efficiently automate the

validation of certificates. To maintain

consistency with the international

standard, EPA would require in this

proposal that digital certificates meeting

the current X.509 standard be obtained

by subscribers who would use digital

signatures to sign electronic manifests.

This standard is well established, and

has been implemented in numerous

signature products that are now

available and in use. The current

version of the standard is X.509v3, and

this certificate standard specifies several

data fields, including the name and

signature algorithm of the Certificate

Authority, the serial number of the

certificate in the CA’s domain of public

key certificates, the name of the

subscriber, the public key value and

signature algorithm of the subscriber,

and period of validity for the particular

certificate. Other data fields for unique

identifier information and optional

extensions are also included in Version

3 of the X.509 certificate standard and

are included in a standard Federal

profile established by the Federal PKI

Steering Committee Technical Working

Group chaired by the National Institute

Standards and Technology. Information

about this standard Federal profile is

available at http://gits-sec.treas.gov.

EPA requests comment on the inclusion

of these X.509 certificate standards in

the digital signature approach proposed

today for electronic manifests.

11. What Is a Public Key Infrastructure

(PKI)?

The entities and services that support

the issuance and use of digital

certificates make up the so-called public

key infrastructure, or PKI. To be fully

functional, a PKI must be able to

provide the following services to those

that would subscribe to or rely on

digital certificates:

• Certificate registration or

enrollment,

• Certificate issuance and delivery,

• Maintenance of a directory of valid

certificates,

• Maintenance of a list of revoked

certificates, and

• Maintenance of long-term archives

of certificate records.

At the heart of a PKI is a Certificate

Authority (CA), which serves as the

trusted third party to oversee the

certificate enrollment, issuance,

validation, and revocation processes.

Typically, subscribers (those applying

for certificates) would look to CAs to

conduct a proper identify proofing

inquiry and then issue them digital

certificates that accurately convey the

subscribers’ identity information and

public keys. Relying parties (those who

would rely on the certificate as proof

that they are dealing with the named

subscriber) would look to CAs to

maintain accurate and timely

information to validate certificates,

including the maintenance of on-line

certificate repositories or data bases that

may be queried by relying parties. These

services can all be provided by a

Certification Authority, but in some

instances, a CA may delegate to others

specific tasks such as certificate

enrollment, collecting identity proofing

information, certificate production, or

processing validation requests. The CA’s

identify proofing procedures and the

standards that it follows for issuing and

managing certificates are typically

spelled out in the CA’s detailed

Certification Practices Statement.

PKIs can be developed for ‘‘closed’’

and ‘‘open’’ user communities. For

example, one might wish to authorize

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28287

the use of digital certificates in the

context of a very narrow user

community (e.g., those signing and

transmitting health claims forms), or,

one might wish to use certificates

broadly to support all manner of on-line

transactions or dealings with public and

private entities. The more ‘‘open’’

models for establishing PKIs may

involve multiple CAs issuing certificates

and processing certificate validation

requests. In such cases, issues may arise

about the interoperability of the

different CAs’ certificates, as well as

issues about the similarity of their

proofing standards and procedures, and

whether the different CAs can ‘‘crosscertify’’ and recognize each others’’

certificates.

There is currently much discussion

underway within federal and state

governments on the standards and

procedures that should govern the

issuance and use of digital certificates in

government information systems.

Significantly, EPA is participating in the

Federal Public Key Infrastructure

Steering Committee, which includes

representatives from more than two

dozen federal agencies. This Federal PKI

Steering Committee is now developing a

Certificate Policy for a Federal Bridge

Certification Authority (FBCA) that

would establish a framework of

minimum requirements for the issuance

and management of interoperable digital

certificates within the federal

government. The FBCA Certificate

Policy is currently being developed as a

high level statement of the legal aspects

of agency CA’s operations, rather than

the detailed technical aspects. The

FBCA Certificate Policy could then be

adopted by participating agencies to

cover the use of digital certificate

services, and fine-tuned to meet the

security needs of specific programs.

Other public and private sector groups

are attempting to address the issue of

certificate interoperability, by

developing certificate content and

processing standards that would

facilitate the reliable exchange of digital

certificates and their automated

validation.

Recently, the General Services

Administration (GSA) has established

its ‘‘Access Certificates for Electronic

Services’’ (ACES) program for issuing

digital certificates to support the

public’s access to federal information

systems. The ACES model was

conceived as a government-wide PKI

structure to be administered under GSA

contracts, with certificate services being

provided by multiple, commercial

vendors awarded ACES contracts. The

ACES approach offers these beneficial

features:

• A unified, consistent approach to

obtaining PKI services from the

government, thus avoiding the creation

of many, limited scope PKIs for

numerous government programs;

• Increased efficiencies and reduced

costs to certificate users, through the

aggregation of the government’s

certificate needs across many

participating agencies;

• On-line subscriber registration and

certificate issuance, with identify

proofing of subscribers drawing on

several, independent-sourced databases;

• On-line and nearly real-time

certificate validation for relying parties;

• A common Certificate Policy to

govern all parties’ responsibilities and

the CAs’ operations;

• Assured interoperability of

certificate processing by the several

ACES contractors (CAs), through the

design and operation of the so-called

‘‘Certificate Arbitrator Module’’ that

would be developed for the ACES

program; and

• Several pricing options for

certificate services, the cost of which

would be borne by the participating

government agencies relying on the

certificates issued to the public.

While EPA believes that the ACES

program offered by GSA has much to

offer, it is not entirely suited to the

hazardous waste manifest program. The

current ACES model was designed

primarily to support those Federal

applications (e.g. websites) where

members of the public would be

reporting data directly to or requesting

information from the federal agency. In

this model, the federal agency would

always be the ‘‘relying party’’ that

would be validating the identity of those

members of the public dealing with the

agency’s information system. However,

EPA does not now collect manifests

from the public, nor does it intend to

create a centralized reporting system or

national data base for tracking manifest

data. Numerous states collect manifests,

but ACES is not currently authorized to

contract with State agencies for

certificate services. In addition, most of

the electronic manifest transmissions

contemplated by today’s proposal

would be transmissions among the

commercial firms handling hazardous

waste shipments, rather than

transactions with government agencies.

So, the PKI for the manifest system

would need to address the fact that the

waste handlers would be the typical

‘‘relying parties’’ that would need to

validate the certificates of other waste

handlers involved in their waste

transactions. The PKI would therefore

need to provide for certificate services

in the context of these routine manifest

transmissions between waste handlers,

and apportion the cost of certificate

issuance and validation services

equitably among these entities.

EPA believes that digital signatures

and certificates will play a vital role in

the near term in bolstering the level of

trust accorded electronic transactions.

The development of PKIs is at an early

stage and very much in flux, and many

of the details about how and when EPA

would establish PKIs for RCRA and its

other environmental programs will not

become clear until later in the

development of this rulemaking.

For example, EPA’s Office of

Environmental Information is

addressing more generally EPA’s efforts

to implement the GPEA statute, and

issues across EPA’s programs for

submitting electronic reports to EPA.

EPA expects that digital signatures will

play in important role in electronic

reporting. Currently, EPA is testing a

prototype approach for a Central Data

Exchange, and is testing the use of

ACES certificates in connection with the

prototype system. As a part of a

submitter registration process, EPA is

considering whether to require that

those applying for digital certificates

execute a hand-signed electronic

signature agreement that would contain

terms and certifications addressing,

among other things, the signer’s

responsibility to protect its private key

from compromise, unauthorized use, or

delegation to others. EPA is also

considering whether registrants should

be required to periodically re-certify

that he or she has done nothing in

violation of the signature agreement.

The details of EPA’s PKI approach are

evolving. However, the Agency is today

providing notice that it is proposing a

digital signature option for

electronically signing manifests, and

this would necessitate some form of PKI

to be established as well. EPA is looking

at several approaches for establishing a

PKI for the manifest. Commenters are

advised to look to future proposals for

more detailed information on the PKI

topic. Policies developed for PKI in

other rules would likely be relevant to

and perhaps incorporated into this

rulemaking. For example, should EPA

conclude that signature agreements with

certifications addressing subscribers’

responsibilities to protect their private

keys are necessary to ensure

accountability and enforceability in

connection with digital signatures, EPA

would likely include similar signature

agreement terms for the manifest PKI.

Once EPA has established a more

comprehensive PKI policy, we will

issue a supplemental notice in this

rulemaking identifying a more specific

28288 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

PKI proposal for the manifest.

Additional public comments on this

topic will be solicited at that time.

12. What PKI Options Are Being

Considered for the Manifest?

EPA is evaluating several distinct

options for establishing a manifest

system PKI. These options differ

primarily on the level of centralization

of PKI services, and whether

government agencies (EPA or authorized

state agencies) or commercial waste

firms would establish these PKIs to

support their digital certificate activities

a. Centralized PKI for Environmental

Programs. Under this option, EPA

would establish a centralized PKI

structure to service the manifest

program and other environmental

programs. This ‘‘environmental

community PKI’’ could then deal

centrally and efficiently with supplying

certificate services to the various

entities subject to the reporting and

record keeping mandates of the

environmental programs administered

by EPA or by authorized state programs.

This model would appear to be fit well

with the ‘‘Central Data Exchange’’ role

that the Agency’s new Information

Office has identified as one of its

electronic reporting initiatives. The

Central Data Exchange would act as a

central hub for receiving, processing,

and routing to recipients the many inbound records and reports that external

stakeholders would send electronically

to EPA or participating state agencies.

Under this option, the central receiving

facility role would extend also to

providing digital certificate services for

the environmental community.

Under this option, EPA would likely

leverage existing expertise, and contract

with one or more commercial CA

vendors to supply certificate issuance

and processing services. A fairly generic

Certificate Policy could be developed to

define user roles, responsibilities, and

required CA operations. Interoperability

requirements could be included in the

event that multiple CA vendors are

awarded contracts, and links to the CAs’

on-line sites for obtaining certificate

enrollment and certificate validation

services would be provided. A

centralized on-line registry or data base

of revoked certificates would be

maintained by the CAs for the

environmental community, so that the

status of certificates could be readily

determined. The commercial CAs could

then bill users directly for the

enrollment or validation services

provided to subscribers and relying

parties.

EPA believes that a centralized PKI

approach offers the advantages of

greater efficiencies and economies of

scale, when compared to models under

which each environmental program or

commercial enterprise (e.g., a waste

disposal company and its customers)

would establish its own PKI. Also, a

centralized approach appears to offer

greater prospects for avoiding

interoperability issues in connection

with validating the certificates that

would be issued to a great number of

commercial entities engaging in

interstate transactions. The ability to

quickly and reliably validate certificates

is critical to fostering trust in digitally

signed communications.

However, there may be difficulties as

well in establishing such a centralized

PKI. State electronic signature laws may

impose additional controls or licensing

requirements on CAs, and an EPA-led

PKI would need to yield to or comport

with any additional or different

standards required under state law.

Also, this option is dependent on the

participation by many commercial

entities and state agencies in a

centralized system, and some may

prefer to establish their own systems,

rather than defer to EPA. Also, the

potential liability of contractors

performing CA services could also be an

issue, and provisions limiting the CAs’

liability may need to be included in

their contracts, or the vendors may not

wish to participate.

b. Decentralized Approach to PKI.

Under this option, each waste

management or other environmental

community would establish and operate

its own PKI, or obtain the services of

commercial vendors who would obtain

the certificates and manage them. So,

waste management firms might establish

PKIs for their networks of facilities and

customers. Alternatively, states could be

the organizations that establish

localized PKIs to deal with the

submissions they receive from their

regulated communities. EPA would not

issue a generic Certificate Policy under

this option. Rather, EPA’s role in a

decentralized approach would be

limited to establishing in this

rulemaking some minimal criteria

which these PKIs should meet, such as

minimally acceptable identity proofing

by CAs, minimally acceptable key

lengths and encryption algorithms, the

definition of those events that would

necessitate certificate revocation, the

maintenance of certificate revocation

lists, a determination of the frequency

with which certificate status data must

be updated, and minimal archiving and

auditability criteria for CAs’ records of

certificates.

This option would appear to offer

several benefits. Certificate policies and

CA practices could be tailored closely to

the needs of the PKI community at

hand, as well as the local laws and

procedures applicable in the states

where the users operate. EPA would be

minimally involved in creating

‘‘national’’ PKI policy, or in

administering the PKI-related contracts

and ‘‘central receiving facility’’ types of

support network for PKI services. Also,

this rulemaking would only need to

address PKI issues minimally.

EPA believes that this option would

also pose significant drawbacks. First,

anecdotal evidence suggests that setting

up a PKI can be an expensive

proposition. Establishing a PKI can

involve either contracting with vendors

to provide these services, or the

expenditure of considerable resources

on-site to provide the skilled personnel,

the technical hardware and software,

and the certificate processing data bases

needed to provide enrollment and

validation services. Some entities would

likely not proceed at all with PKIs if

they were required to incur these costs

alone, and it would appear to be

extremely inefficient to have these

expenditures duplicated many times

over so that numerous PKIs could be

established for more narrowly defined

communities. Moreover, in the

decentralized model, there would be

greater likelihood that the certificates

that would be issued by numerous CAs

operating under disparate Certificate

Policies would not be interoperable or

recognized by the other CAs.

c. Hybrid Option. Under a hybrid

approach, EPA would establish a

standard Certificate Policy similar to the

ACES Program Certificate Policy for the

‘‘environmental reporting community’’

and define the required structure of the

X.509 v.3 certificates that would be

issued in connection with EPA’s

environmental programs. EPA would

contract with commercial CAs to

provide the certificate services for the

manifest and other EPA programs. For

example, the Agency could contract

with one or more of the CAs selected

under the ACES procurement process,

in order to foster the interoperability of

the certificates that these vendors would

issue. The Certificate Policy could, for

example, allow the State environmental

agencies to function as the local

registration authorities (LRAs) that

would gather certificate enrollment

information from subscribers and

confirm through local program data

bases the content of certificates. Once

adequate information is obtained and

confirmed by the LRA, it then would

direct the CA to issue or renew

certificates. The contracts with EPA

would provide that CAs would charge

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28289

the participating commercial entities

directly for certificate subscription and

validation services. This hybrid option

offers many of the advantages of the

centralized option, while permitting

states to exercise their prerogatives in

controlling access to certificates by their

regulated community.

EPA requests comments on these

three options for establishing a PKI.

Comments addressing their relative

advantages and disadvantages, as well

as suggestions for implementing them

effectively would be especially helpful.

EPA will address these comments and

identify a more specific PKI proposal in

the supplemental notice that we will

later publish for comment.

13. Proposed ‘‘Secure Digitized

Signature’’ Method

EPA recognizes that the digital

signature approach discussed above

may not be suited to many manifest

users. The digital signature technology

is clearly a reliable and proven method

for authenticating electronic documents,

but managing encryption keys and

working within a PKI may introduce a

level of complexity that some users may

find objectionable. In addition, some

may find the digital signature method

objectionable because it deviates too far

from the more familiar signing

ceremony that one associates with

handwritten signatures. For these users,

an electronic signature method that

more closely mimics handwritten

signatures may be more desirable,

especially for use in the field where

manifests are typically signed.

Therefore, EPA is proposing ‘‘secure

digitized signatures’’ as another

signature alternative for the manifest.

This alternative would allow electronic

manifesting systems to incorporate

software, digitizer pads, and electronic

pens that create a graphical

representation of a signer’s handwritten

signature. The electronic manifest

copies would be signed with the

digitizer/pen device, and the manifest

records would retain the graphical

image of the hand-signed electronic

signature. The software would be

required to store the signature as a

‘‘signature object’’ that contains the

graphical image of the signature,

signature capture data, and document

binding data. The document binding

data required here would be data which

show that the signature is

cryptographically and inextricably

bound to the signed document. In

addition, the software would be

required to display the graphical

signature image in an industry-standard

bitmap format (e.g., TIFF or BMP) for

viewing or printing. Customers and

business partners would therefore be

able to recognize such an electronic

signature image as the likeness of the

signer’s signature. In this respect, the

digitized signature can be applied and

‘‘verified’’ in the field nearly as easily as

a handwritten pen-and-ink type

signature.

A key feature of the proposed ‘‘secure

digitized signature’’ standard is the

inclusion of additional security

measures and signature object data

beyond the basic signature bitmap

image. These additional measures

would be required because standard

bitmap images alone present security

risks that would mitigate their reliability

as a means of authenticating electronic

records. Standard bitmap files can be

readily copied between documents,

such that a non-original signature could

be applied to a document using

conventional ‘‘cut-and-paste’’ editing

tools. Without additional safeguards, an

imposter could conceivably obtain a

bitmap image of another’s signature, and

apply it to a new document in such a

way as to create the impression that the

other person signed the document. This

would create many opportunities for

forging electronic signatures and present

plausible scenarios for repudiation of

electronic documents.

Therefore, EPA is proposing that

electronic manifest systems using this

signature method must adopt certain

measures that would secure this

signature method against the unbridled

copying of signature bitmaps. Under

today’s proposal, ‘‘secure digitized

signatures’’ must incorporate these

additional features to enhance their

authentication and data integrity

capabilities:

• The signature software must block

access to ‘‘cut-and-paste’’ editing

functions;

• The signature software must only

accept ‘‘real time’’ signature data input

from the digitizer/pen device;

• The signature software shall record

the signature data as a ‘‘signature

object’’ that contains:

• The graphical image of the

signature for display and print

operations, in industry-standard bitmap

format (e.g., TIFF or BMP),

• Signature capture information,

particularly, the claimed identity of the

signer (e.g., a user ID) and the date and

time of signing, and

• Document binding data,

particularly, an encrypted checksum or

hash function of the data to which the

signature relates.

• The signature software shall allow

for verification of signature objects, to

establish if data has been changed since

the signature was captured.

These features are intended to address

signature authenticity and data

integrity. EPA has had some experience

with the digitized signature method in

its Manifest Automation Pilot tests, and

based on early results from the 3rd

phase of Internet tests, this method

appears to be practical and reliable .

There are several signature products

that are now commercially available

which appear to meet the standard

proposed here.

14. Request for Comments on Proposed

Signature Methods

Today’s proposal would require

electronic manifests to be electronically

signed with either digital signatures

meeting the § 262.25(c)–(f) standards or

with secure digitized signatures meeting

the standards of § 262.25(g). EPA

believes that the proposed signature

approaches would provide sufficient

assurance that a signed manifest is

authentic, and that it has not been

altered since being signed by a waste

handler. EPA believes that the proposed

electronic signature methods represent

effective ways to bind an individual to

his or her unique electronic signature.

We believe that these types of electronic

signatures can establish a bond as

reliable as the bond between an

individual and their handwritten

signature. Also, we believe that these

signature technologies are more

practical and proven than other

authentication technologies that rely on

biometrics (e.g., fingerprint readers or

retina scans), as the biometric methods

identified to date tend to have

significant error rates which hamper

their utility. Biometric methods also are

not typically implemented in ways that

link the biometric parameters being

measured to the data being signed, so

they are not as helpful in assuring data

integrity as the methods proposed here.

The proposed methods do entail some

additional cost to users. For example,

the digital signature method requires the

establishment of a PKI, and in addition,

Certification Authorities typically

would charge subscribers and relying

parties fees to issue and validate digital

certificates. Software integrating the

signature method with the other

manifest preparation and transmission

functions would need to be acquired,

and depending on the method selected,

there may be additional costs associated

with digitizers or other peripherals. The

Agency is proposing these signature

methods in spite of these incremental

costs, because we believe that these

methods would be instrumental in

making electronically signed manifests

trustworthy and legally enforceable.

Thus, the additional security and

28290 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

trustworthiness that should result under

the proposed approaches balance the

cost considerations. EPA requests

comment on the electronic signature

methods proposed here for the manifest.

In particular, comments addressing the

following issues would be very helpful

to EPA.

• Do manifest signatures require the

level of security offered by the digital

signature technology?

• Is the proposed software-based

implementation of the private signature

key a reasonable accommodation of

signature security, practical

implementation considerations, and

cost?

• Would the administrative

complexity and cost of establishing or

participating in PKIs deter waste

handlers from implementing digital

signature-based electronic manifest

systems?

• Is it practical for waste handlers

and their employees to sign manifests

using digitizers or digital signature

products? Are there human factors or

other issues involved that would make

such signature methods impractical for

hazardous waste shipments?

• For digital signatures, would

individuals and sponsoring firms be

willing and able to maintain the

confidentiality of their private keys, and

accept accountability if private keys are

compromised? Should EPA require

registrants to enter into signature

agreements that contain certifications

that the private key would be protected

from disclosure, unauthorized use, or

delegation? Should registrants also be

required to periodically re-certify that

they have not violated their signature

agreements, and if so, what would be

the appropriate frequency of such recertifications? Should the signature

agreements and re-certifications be

signed by hand?

• What types and quantity of proof of

identity should be required to support

the issuance of a digital certificate for

use in the manifest program? Should

applicants be required to present

themselves in person to the Certificate

or Registration Authority, or should less

formal proof be acceptable?

• Is it practical to verify digital

signatures on a document such as the

manifest, which is signed sequentially

by multiple waste handlers, and

occasionally edited while it is being

transmitted among handlers? Must

multiple versions of each manifest

document be maintained by the

software so that the complete history of

the document is preserved?

• How susceptible are digitally signed

and electronically stored media to

deterioration over time, such that a

digital signature might become

corrupted during storage and thus fail to

validate? Are there practical solutions to

this problem?

• Is it feasible to require validation of

digital signatures and certificates over

the long term? Are there practical ways

to ensure long-term authentication and

enforcement capability, without

requiring indefinite signature validation

mechanisms?

• With respect to the secure digitized

signature method, does the proposed

standard provide adequate security for

manifest signatures? Does the similarity

of digitized signature images to

handwritten signatures offer advantages

that manifest users would find

attractive? Does software implementing

this approach support open standards,

rather than proprietary algorithms and

standards?

• Is the secure digitized signature

approach proposed here adequate to

prevent ‘‘replay attacks’’ by which a

digitized signature could be appended

to another document and thus forged?

Are there other practical measures that

should be included to guard against

copies being substituted for original

digitized signatures? Are the algorithms

that are used to bind these signatures to

record data sufficiently strong to

prevent attacks or misuse?

• Should the Agency require that

there also be some visual feedback

provided to signers during the digitized

signature act, so that signers can clearly

see how the system is capturing their

signatures and thereby enter more

accurate signature data? What

additional cost would be incurred if

digitizer pads were required to provide

such feedback?

• Should the proposed secure

digitized signature method also require

that these systems capture dynamic

signature parameters, e.g., speed of

signature, pressure applied to the pad,

and pen stroke measurements? Should

the proposal also require that the

captured dynamic signature information

be used in real time to validate the

digitized signature? Would such data

significantly enhance the ability to

establish the genuineness of a signature?

Are the current products which provide

this capability accurate and reliable?

Would the forensic evidence produced

by these products provide a sufficient

and reliable basis for civil and criminal

litigation? Which dynamic signature

parameters are most relevant and

reliable insofar as being helpful to verify

an electronic signature as genuine?

• Should EPA be concerned that

users of digitized signature systems

might be more inclined to enter null or

nonsense signatures on a digitizer pad

than they would if they were signing a

paper document?

• As an additional measure to

enhance the security and authenticity of

digitized signatures, should EPA require

that digitized signatures also be digitally

signed? EPA has not included this

requirement in the proposed rule

option, as it was the Agency’s intent to

establish the secure digitized signature

method as a distinct alternative to the

digital signature method. Specifically,

we developed the proposed digitized

signature method to allow hand signed

electronic signatures to be verified

without the administrative complexity

of a public key infrastructure. While it

is technically feasible to digitally sign a

digitized signature, EPA is concerned

that the additional security gains would

be outweighed by the additional cost

and complexity associated with

implementing this approach.

• Is the proposed secure digitized

method practical and cost-effective

when compared to hand-signed forms or

to the digital signature/PKI alternative?

• Is the Agency being too prescriptive

in proposing only the ‘‘digital

signature’’ and ‘‘secure digitized

signature’’ methods, rather than

authorizing the use of ‘‘electronic

signatures’’ more broadly? If the Agency

adopted a broader approach, what

performance or technical criteria would

be appropriate for authorizing the use of

additional signature methods? What

approval process would be followed to

authorize any additional methods, and

who would be responsible for reviewing

and approving such methods? If

numerous methods were to be

authorized, how would EPA ensure that

the manifest’s multiple signatures could

be readable and readily verifiable by all

those who might encounter and wish to

rely on the electronic manifests?

• Is it appropriate for the Agency to

propose two alternative signature

approaches? Would the two alternative

methods conflict in practice, and if so,

how can EPA minimize this problem?

Does the interstate nature of waste

transactions and the need for multiple

signatures on the manifest provide

justification for adopting one uniform

method or standard for signatures? If

only one signature approach makes

sense for the manifest, should EPA

adopt the digital signature or the secure

digitized method?

• Is there merit to a Personal

Identification Number (PIN) system, in

which individuals would enter a unique

sequence of alpha-numeric characters

which they have adopted as their

electronic signature. A PIN system may

be less costly to implement than other

electronic signature alternatives,

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28291

although such systems can require

considerable company and agency

oversight in order to issue, manage, and

revoke PINs as appropriate. A PIN-based

signature system may be appropriate for

electronic transactions for which there

is not as critical a need for security or

strong authentication. However, in the

context of developing electronic

reporting standards for the Discharge

Monitoring Report (a Clean Water Act

requirement), EPA concluded that, in

order to satisfy standards of proof for

criminal prosecutions, it was preferable

to require more than simply a PIN for

authentication of a record. So, in the

Discharge Monitoring Report

rulemaking, EPA proposed the use of a

PIN signature backed up with a followup certification that would be handsigned and mailed to the Agency. This

approach seems impractical for the

manifest, and therefore, EPA has not

included a PIN approach in today’s

proposal. However, we solicit comments

on the practicality and security of PINbased methods in the context of the

manifest system, and how such an

approach could be implemented

securely and efficiently.

H. Preparer Signature Proposal

1. What is a ‘‘Preparer Signature’’?

The manifest is completed when the

generator signs the Generator’s

Certification contained in Block 16 of

the Uniform Hazardous Waste Manifest.

The generator makes this certification

before turning custody of the shipment

over to the transporter, and the

certification statement attests that the

waste shipment is fully and accurately

described on the manifest, and that the

shipment is in all respects in proper

condition for highway transportation

according to applicable national and

international laws. In addition, the

certification includes statements

regarding a generator’s waste

minimization program or, for SQGs,

efforts to minimize waste. Currently, the

generator’s certification requires the

hand signature of the generator or an

authorized representative of the

generator.

Today’s proposal would allow an

electronic manifest ‘‘preparer’’ to sign a

generator’s manifest. For purposes of the

automated manifest, the proposal would

enable such a preparer to sign the

generator’s certification on behalf of the

generator with the preparer’s electronic

signature.

2. Why Is EPA Proposing To Allow

Preparers To Sign Electronic Manifests

for Generators?

EPA is aware that it is a common

practice for an entity or individual other

than the generator (e.g., employee or

contractor) to perform the steps

necessary to prepare a waste shipment

for transportation, including the steps

associated with preparing the manifest

paperwork. Often, the transporter or the

TSDF prepare the manifest paperwork

as a part of the service it provides to its

generator customers. EPA has already

clarified, through an amendment to Item

16 of the manifest instructions, that the

handwritten signature on paper

manifests may be made by employees or

other individuals on behalf of the

generator. 51 FR 35190 at 35192

(October 1, 1986). Because the

electronic manifest may also be

prepared by entities or individuals other

than the generator, it is appropriate to

provide similar flexibility for the

preparation and signing of the electronic

manifest. Please note, however, that

EPA is not reconsidering, reopening, or

requesting comment on the existing rule

allowing employees or other individuals

to sign the paper manifest on behalf of

a generator.

EPA believes that allowing preparers

to sign an electronic manifest on behalf

of a generator would be particularly

important in ensuring that small

generators may take advantage of the

electronic manifest option. Hazardous

waste transporters and TSDFs

frequently prepare manifests as a service

to smaller generators. While the small or

infrequent generator would not be

expected to obtain computer equipment

or software to conduct automated

manifesting, the transporters and TSDFs

that deal in larger volumes of manifests

would likely find automated

manifesting more advantageous. Thus,

allowing the preparer to sign the

electronic manifest provides a way for

small or infrequent generators to

participate in the automated system.

EPA estimates that small generator

manifests may account for about 66% of

the manifests circulated annually. So,

providing a means to include these

manifests would extend the burden

reduction effects of manifest automation

to these manifests as well, particularly,

as they are received and processed by

transporters, TSDFs, and State agencies.

3. How Would the Preparer Signature

Feature Work?

Under today’s proposal, a preparer

may initiate electronic manifests for its

generator customers only if the preparer

has been authorized by the generator to

prepare and sign the generator’s

manifests on behalf of the generator.

EPA is further clarifying that the

authorization need not be in any

specific form, but there must be clear

evidence of intent that the preparer is

authorized to prepare and sign

manifests on behalf of the generator.

The generator can limit this

authorization to a specific term, or to

specific waste types, as appropriate. The

generator can also revoke the

authorization at any time.

Today’s proposal would provide that

electronic manifests may be signed

electronically by preparers who have

been authorized to prepare and sign

electronic manifests on behalf of the

generator. So, a transporter or TSDF

under contract with the generator could

arrive on-site for a waste shipment pickup and have authorization from the

generator to prepare the shipment and

sign the manifest electronically on

behalf of the generator. A person signing

a manifest (paper or electronic) on

behalf of a generator would not become

liable as a RCRA ‘‘generator’’ simply by

signing the manifest. The question of

whether such a person might also be

held responsible for complying with the

generator requirements would depend

on the facts and circumstances of

individual cases. For example, a

contractor can under other

circumstances be a co-generator of a

waste, and in such instances, may in

fact assume generator responsibilities

for completing the manifest. See 45 FR

72024 at 72026 (October 30, 1980).

Since an authorized preparer does not

assume generator responsibilities

simply by signing an electronic manifest

on behalf of a generator, the generator

would in all such cases still be

identified on the manifest as the

generator of the shipment. Today’s

proposal would only affect who might

perform the physical act of signing the

generator’s certification in the course of

initiating the electronic manifest. Once

signed by the preparer, the electronic

manifest would then be transmitted

electronically to subsequent transporters

and the TSDF, and any copies required

by generation or destination states could

also be supplied electronically, if the

states involved allow electronic

submission of manifest copies.

4. How Would a Preparer-Signed

Electronic Manifest Be Closed Out?

Under today’s proposal, the generator

would remain responsible for

overseeing that its off-site shipments are

in fact received by the designated

facility or TSDF. So, a preparer

authorized to transmit manifests

electronically must, at the time the

28292 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

shipment is initiated, leave a manifest

copy (hard copy) with the generator.

The generator copy would include a

notation that the manifest was initiated

electronically by the preparer, and it

would indicate the date that the

manifest was initiated, and the date that

the shipment was delivered to the first

transporter. Upon receipt or rejection of

the shipment by the designated TSDF,

the TSDF would likewise communicate

to the generator the fact of receipt,

rejection, or any discrepancies. This

communication could be provided in

the form of a hard copy of the manifest,

or a memorandum signed by the TSDF

which references the manifest number

for the shipment, which states that the

waste shipment was received or

rejected, and which describes any

discrepancies. Thus, the generator

would retain these records of receipt,

rejection, or discrepancies among its

records, just as it now retains a manifest

copy signed by the TSDF. The generator

would still be expected to reconcile or

report any discrepancies or exceptions

that might arise. So, under this

proposal, the generator’s role would not

change with respect to close-out of the

manifest and reconciling problems.

5. Request for Comments

EPA requests comments on the

proposal to allow preparer signatures as

a means of initiating generators’

electronic manifests. Comments

responding to these issues would be

useful:

• Should the preparer approach for

electronic manifests include additional

safeguards to ensure accountability,

particularly where preparers allied with

transporters or TSDFs are allowed to

perform these activities on the

generator’s behalf?

• Should the preparer signature

approach be limited to digital signature

systems only? With the secure digitized

signature method, it should not be

difficult for transporters to obtain

digitized signatures from small or

medium sized generators using remote,

portable devices (with signature pads)

that the transporter would bring to the

generator’s site. Should the rule require

generator’s signatures to be obtained

when this is practical, or, should the

preparer signature approach be more

widely available regardless of the

signature method used?

• Should preparers of electronic

manifests be required to have written,

hand-signed authorizations from

generators authorizing the preparer to

sign manifests electronically on behalf

of the generator? While written

authorization is not required to enable

another person to sign one’s paper

manifest on their behalf, are there

reasons unique to the activities of

electronic preparers that warrant written

authorization to sign an electronic

manifest on the generator’s behalf?

• Is there an effective alternative to

the proposed approach for closing out

preparer-initiated electronic manifests

that would not require hard copies of

manifests to be issued and retained by

generators? Could the preparer receive

verification of receipt or notice of

rejections or discrepancies

electronically on behalf of the

generator? How would the generator’s

interests be preserved in such a case,

particularly where the preparer is

employed by the same entity that

operates the receiving facility?

I. Third Party Storage of Manifest

Records

1. What Does EPA Mean by Third-Party

Storage?

Currently, RCRA facilities are

required to maintain manifest records

on-site for inspection by RCRA

inspectors. Section 3007(a) of the RCRA

statute requires that all hazardous waste

facilities shall afford RCRA inspectors

access at reasonable times to facilities

that manage hazardous waste. This

section also requires that RCRA

inspectors shall be permitted reasonable

access to facility records for

examination or copying. Significantly,

the Act only requires access to records

such as manifests; it does not prescribe

how that access must be provided.

As document storage methods

undergo the transition from retention of

paper files to storage or records on

electronic media, it becomes less

essential where the storage media

resides. As long as there is reasonable

access to electronic records at a RCRA

facility, it should not matter whether the

specific document actually resides on a

disk at the facility, or whether it is

downloaded from a network or server

for which the storage media is

physically located out of state. As long

as the required reasonable access to the

file is ensured, and electronic records

can be called up, examined, printed,

and copied at the facility, EPA does not

believe that the Act or policy

considerations preclude storage by such

‘‘third-party’’ storers (e.g., commercial

network services or record archive

services). Indeed, today’s proposed rule

would impose specific obligations on

those storing records electronically to

comply with computer security

controls, and those that offer electronic

storage services commercially may be in

a better position than some RCRA waste

handlers to bring their systems into

compliance with these controls. So, it

seems sensible to the Agency that our

automated manifesting rules and policy

allow flexibility on this issue.

Current facility standards for

permitted TSDFs (40 CFR 264.71(a)(5))

and for interim status facilities (40 CFR

265.71(a)(5)) include the direction that

manifest copies must be retained ‘‘at the

facility’’ for 3 years. EPA believes that

this requirement is met if an electronic

copy can be produced and accessed at

the facility, even though the physical

device on which the record may be

stored is in fact external to the facility.

2. What Are the Proposed Conditions on

Third-Party Storage?

Today’s proposal would permit

facilities to engage commercial record

storage services or networks to provide

for electronic storage of manifest copies.

This proposal would be conditioned on

the records being readily retrievable

during the full record retention period,

on reasonable inspector access for

examination and copying of manifest

copies being ensured, and on

compliance with this proposal’s

electronic record system controls. EPA

emphasizes that RCRA facilities remain

responsible for providing inspectors

access to all electronic records; they

cannot contract away their

responsibility by engaging the services

of a commercial storage service

provider. Firms would be required to

include terms in their contracts with

third-party storers providing that

records must remain readily accessible

during the full record retention period,

that reasonable inspector access for

examination and copying of manifest

records must be available, and that the

third-party storage provider must

comply with this rule’s electronic

record system controls.

3. Request for Comments

EPA requests comments on this

proposal to permit third-party storage

services to aid RCRA facilities in

implementing electronic storage

programs, by providing off-site storage

and archiving media that would be

accessible electronically from the RCRA

facilities. Is this flexibility desirable to

the regulated community, and would it

provide an incentive for RCRA facilities

to engage in automated manifesting?

Would facilities object to sharing

custody of their records with off-site

vendors, or would they be more

agreeable to allowing the off-site

vendors to assume this proposal’s

computer and record security controls?

If controversies arise with facilities over

record access, would the Agency be

frustrated in efforts to obtain records

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28293

from the third-party service provider?

What, if any, RCRA liability should be

assumed by the third-party vendor?

What, if any, safeguards should EPA

include to protect against the possibility

that third-party storers may leave the

business? EPA seeks comments on these

issues related to third-party electronic

storage.

VIII. Related Acts of Congress,

Executive Orders, and Agency

Initiatives

A. Regulatory Impact Analysis Pursuant

to Executive Order 12866

Under Executive Order No. 12866 (58

FR 51735, October 4, 1993), the Agency

must determine whether a regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines a ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may: (1) Have an

annual effect on the economy of $100

million or more or adversely affect, in

a material way, the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local, or tribal

governments or communities; (2) create

serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients; or (4) raise novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order.’’

It has been determined that today’s

proposed rule is a ‘‘significant

regulatory action,’’ because it may raise

novel legal or policy issues arising out

of legal mandates, the President’s

priorities, or the principles set forth in

the Executive Order. As such, this

action was submitted to OMB for

review. Changes made in response to

OMB suggestions or recommendations

will be documented in the public

record. However, today’s proposed rule

is not ‘‘economically significant’’,

because we expect that it would result

in net reductions in compliance burdens

and costs. The proposal would

standardize the manifest form,

streamlines certain manifest

requirements, and would provide

hazardous waste handlers with the

option to prepare, transmit, sign, and

store their manifests electronically. In

those states that collect manifests and

maintain databases to track manifest

data, today’s proposal would also enable

the electronic submission of manifest

copies to the states. These features are

expected to reduce the paperwork

burden and other hazardous waste

manifesting costs on the regulated

community (i.e. waste handlers and

states).

In order to quantify and monetize the

anticipated economic effects of today’s

proposed rule, the Agency conducted

three separate evaluations of different

levels of potential effects of this rule on

hazardous waste handlers and on State

government regulatory agencies. These

three studies are briefly summarized

below in this section of the Preamble.

They have the following titles and

analytic scope, and are available for

public review and comment from the

RCRA Docket:

—‘‘Supporting Statement for

Information Collection Request

Number 801.#’’, 19 July 2000: This

study represents the narrowest scope

of the three studies, focused primarily

on estimating the annual burden hour

reduction (and associated reduction

in annual labor cost) for today’s

proposed rule, as it affects 1.76

million annual Federal RCRA

manifests. This first study estimates

burden hour reduction assuming that

50% of all annual manifests become

electronic after promulgation of

today’s proposed rule.

—‘‘Economics Background Document:

Economic Analysis of the USEPA’s

Proposed Modifications to the RCRA

Hazardous Waste Manifest System’’,

12 May 2000: Building upon the

burden hour reduction findings of the

ICR, this second study expanded the

scope of the economic impact analysis

to include potential impacts of the

rule on both Federal RCRA and state

hazardous waste manifests (2.43

million annual manifests), as well as

a cursory estimate of annualized

electronic automation equipment

costs (to states and to waste handlers)

for implementing today’s proposed

rule. Consequently this study presents

a relatively larger baseline estimate of

annual manifest activity compared to

the ICR study. This second study

applies two alternative electronic

manifest adoption rate scenarios: 25%

and 50% of all annual manifests

become electronic, applied to a future

three-year time-span. No attempt was

made in this study to project

quantitatively the future trend in the

number of manifests issued, or the

effects of future technological changes

in electronic data transmission or

other costing factors, since this study

was designed only to formulate a

fairly simplistic analysis to support

the proposed rule.

—‘‘Hazardous Waste Manifest Cost

Benefit Analysis’’, October 2000:

Building upon the second economic

study, this third study is the broadest

in scope, as it includes electronic

manifest equipment costs associated

with existing computerized systems

in some companies, as well as

includes a more extensive and

detailed estimate of both initial and

annually recurring costs (to states, to

waste handlers, and to EPA) for

implementing different, alternative

versions (‘‘models’’) of the proposed

electronic manifest automation

system. This third study adopts the

2.43 million annual manifest baseline

from the second study, but expands

the estimated annual manifest activity

to 3.01 million manifests, to include

additional manifest transmissions for

purpose of repeats and continuation

sheets, applied to a future ten-year

time-span. This study also expands

the assumed number of manifests

transmitted electronically, in relation

to numbers of entities assumed

adopting electronic manifests, which

include 100% of large quantity waste

generators, 25% of small quantity

generators, 90% of transporters, and

approximately 25% of the hazardous

waste treatment, storage and disposal

facilities involved in manifest

activities. This study estimated costs

and potential burden reduction

benefits according to multiple

alternative implementation scenarios

(‘‘models’’).

Consequently, because each is unique

in scope and units of analysis, EPA

presents them in the RCRA Docket

separately for public review and

comment, rather than consolidating

them into a single document in support

of today’s proposed rule. On the other

hand, the basic approach of all three

studies in estimating their respective

different levels of economic effects is

similar; to compare current (i.e. 1997–

99) baseline manifesting burden hour

and other cost requirements, against the

burden and cost under today’s proposed

revisions to the manifest system. The

calculations in each study were

performed using a series of comparative

spreadsheets, incorporating detailed

unit labor and other cost estimates for

carrying out numerous manifest-related

tasks. It is important to indicate that all

studies did not attempt to forecast the

future trend in the number of manifests

issued, or to forecast the effects of future

technological changes in electronic data

transmission equipment or other costing

factors. Consequently, it is important

that each study be interpreted as a

relatively simple estimate of impacts,

28294 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

subject to future annual variability, and

to other potential sources of uncertainty.

Regulatory Burden Savings Estimates

Based on the findings of the first and

second economic study listed above—

which focused on estimating burden

hours and cost reduction for today’s

proposed rule—under current Federal

and State baseline regulations, the

Agency estimates that about 92,350

individual hazardous waste generators

and other handlers produce and

manifest about 2.433 million hazardous

waste shipments for off-site

management annually, requiring about

4.416 million waste handler labor hours,

costing about $187.0 million annually.

State government waste management

programs spend an additional 199,000

hours and $6.3 million annually to

administer their current waste

manifesting programs.

The manifest reform proposal projects

an overall net regulatory burden

reduction of between 765,000 (low

adoption scenario) and 1.241 million

(high adoption scenario) labor hours (a

baseline savings of 17 to 27 percent),

and a corresponding annual reduction

in total nationwide manifesting costs of

about $23.4 to $37.2 million (a 13 to 19

percent reduction in baseline cost). The

major part (i.e. 96 to 99 percent) of these

total nationwide savings would accrue

to the private sector (waste handlers),

but State regulatory agencies would also

experience substantial reductions—on

the order of 18 to 40 percent in annual

burden hours, and 3 to 25 percent in

cost—relative to State-level baseline

administrative burdens for hazardous

waste manifesting.

In terms of basic proposal elements,

the manifest form change requirements

alone appear to produce potentially a

relatively small burden reduction of

only about four to 13 percent cost

savings from current practices. In

addition, as described earlier in this

Preamble, the requirement for a uniform

nationwide form is an essential

prerequisite for efficient electronic

automation which is projected to result

in quite substantial potential burden

reductions for the private sector. The

potential incremental benefits from

electronic automation of the manifest

system are estimated at 87 to 96 percent

of current cost. Higher automation

adoption rates than those assumed here

are possible, given the national trends in

internet communications, the potentials

for commercial waste transporters and

TSD companies to centralize the

manifesting functions as an added

service to generators, and the scale

economies involved in doing so.

In contrast with electronic

automation, the additional savings from

the telefax option are in the one to two

percent range. Labor and cost reductions

from faxing would vary inversely with

the degree of automation, i.e., the

greater the use of electronic manifesting,

the less is the need for the faxing of

manifests.

In the present proposal, the actual

savings resulting from both the

automation and fax options depend on

the adoption of these options by States

as part of their authorized RCRA

programs, including both States of

origin and States of destination for

interstate shipments, and, in some

cases, intervening States as well. The

Agency’s benefit estimates assume that

most if not all States would ultimately

revise their regulations to allow for both

electronic automation and the faxing of

manifests within their borders. To the

extent that this does not occur or does

not take place reasonably quickly, the

regulatory burden reductions projected

here would either not transpire or

would be postponed.

Based on the third economic study

which was more expansive in scope by

including electronic automation

implementation costs, in addition to

burden affects, the average annualized

implementation cost for the proposed

rule is estimated to range between $10.8

to $26.0 million. This range in

implementation cost reflects two

alternative implementation approaches

considered in the study. EPA anticipates

that today’s proposed rule would offset

this implementation cost, by reducing

the national annual burden associated

with the manifest system, resulting in a

net, average annualized national burden

cost savings of $82.2 to $86.8 million.

B. Regulatory Flexibility Analysis

Pursuant to the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.) as amended by

the Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA), whenever an agency is

required to publish a notice of

rulemaking for any proposed or final

rule, it must prepare and make available

for public comment a regulatory

flexibility analysis that describes the

effect of the rule on small entities (i.e.,

small businesses, small organizations,

and small governmental jurisdictions).

However, no regulatory flexibility

analysis is required if the head of an

agency certifies the rule will not have a

significant adverse economic impact on

a substantial number of small entities.

SBREFA further requires Federal

agencies to provide a statement of the

factual basis for certifying that a rule

will not have a significant economic

impact on a substantial number of small

entities. The Agency is certifying that

there will not be an adverse impact on

small business populations as a result of

today’s rule proposals, and therefore no

regulatory flexibility analysis or other

SBREFA requirements are necessitated.

This certification is based on the

following reasons.

With respect to the manifest form

changes and automation options,

today’s proposals include both

regulatory and deregulatory features.

However, the net effect of these changes

should reduce, and not increase, the

paperwork and related burdens of the

RCRA hazardous waste manifest system.

For businesses in general, including all

small businesses, the form changes,

although required, are designed to

reduce the labor time and other costs of

acquiring, completing, and submitting

hazardous waste manifests. The

Agency’s proposals regarding the

optional use of telefaxed forms and the

electronic automation of form

preparation and tracking are also

designed to facilitate and encourage

increased efficiency and reduced costs

through the use of modern

communications technologies. These

possibilities were not available under

existing manifest regulations. Although

most small businesses waste generators

would not be expected to initiate or

acquire the automation technology

directly, many or most would be

expected to share in the savings due to

automation undertaken by the waste

transportation, treatment and disposal

sectors which service the many waste

generating sectors. Since these

proposals are offered as options to the

regulated community, they are unlikely

to be employed in situations that do not

involve cost savings to waste handlers

and generators.

For the reasons discussed above, I

hereby certify that this rule will not

have a significant adverse economic

impact on a substantial number of small

entities. This rule, therefore, does not

require a regulatory flexibility analysis.

C. Environmental Justice—Applicability

of Executive Order 12898

Pursuant to Executive Order 12898,

the Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, or income

bears disproportionately high and

adverse human health and

environmental impacts as a result of

EPA’s policies, programs, and activities.

The Agency conducted an analysis to

identify whether environmental justice

concerns might result from today’s

proposed modifications to the

hazardous waste manifest system. To

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28295

conduct the analysis, we used two

criteria, both of which would have to be

met in order to flag an environmental

justice concern: (i) Are there any

adverse impacts from the proposed

action, and if so, (ii) would the adverse

impacts on minority populations and

low-income populations be

disproportionately high? We applied

both criteria to each rule component:

Manifest form changes, automation, use

of fax, annual waste minimization

certification, and special procedures for

problem shipments. We found no

adverse impact, and thus no

disproportionately high adverse impact,

on minority populations and lowincome populations, for each

component of the proposed rule.

The basic reason for the above finding

is that the current features of the

manifest system that protect human

health and the environment are

preserved or enhanced under today’s

proposed rule. For example, neither the

proposed form changes nor the

automation proposals would detract

from the manifests basic ‘‘cradle-tograve’’ tracking features that protect

human health and the environment. The

information essential to identifying the

materials involved in shipments and

aiding emergency responders would be

retained. Manifest automation and

faxing may be more convenient for some

waste handlers than using regular mail

and may result in increased compliance,

as well as enable closer real-time

tracking of shipments, improved data

quality for recipients and better

enforcement opportunities. Regarding

the change for the waste minimization

certification from a per manifest basis to

annual basis, this is not expected to

alter hazardous waste generation,

handling or disposal practices, nor pose

an incremental risk to human health

and the environment. Similarly,

clarification on the manifest of the

special procedures for problem loads are

designed to improve tracking and

therefore would not have adverse effects

on human health and the environment.

D. Protection of Children—Applicability

of Executive Order 13045

The Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997)

applies to any rule that EPA determines

(1) is determined to be ‘‘economically

significant’’ as defined under Executive

Order 12866, and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children; and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered.

This proposed rule is not subject to

Executive Order 13045 because this is

not an economically significant

regulatory action as defined by

Executive Order 12866. In addition, the

Agency does not have reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children,

because the manifest system does not

itself give rise to environmental media

transfer issues. The manifest serves as a

tracking device which creates clear lines

of accountability among the participants

in the hazardous waste system. It also

serves to protect human health and the

environment during the transportation

of hazardous waste by providing

information about the waste to persons

handling the waste and to emergency

response personnel.

E. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law No.

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.

The manifest automation component

of this rulemaking involves information

technology standards for electronic

manifest formats and for electronic

signatures. Today’s proposal includes

an electronic format for the manifest

based upon the American National

Standards Institute (ANSI) Accredited

Standards Committee’s (ASC) X12

standard format for Electronic Data

Interchange or EDI. EPA is also

proposing an Internet Forms document

definition for the manifest based on the

Extensible Mark-up Language (XML)

Specifications developed by the World

Wide Web Consortium. The World Wide

Web Consortium, however, is not a

voluntary consensus standards body

within the meaning of the NTTAA, and

EPA could not identify an applicable

consensus standard for creating and

transmitting Internet Forms. Therefore,

EPA has decided to propose an XML

document definition for Internet

transmissions of the manifest, as an

alternative to the ANSI ASC X12

formats that are customarily transmitted

across Value Added Networks. It is

possible that the ANSI ASC X12

standards body will develop standards

for XML document definitions in the

future, and EPA will monitor this

situation as we develop a final

rulemaking.

The rulemaking also proposes a

digital signature method for signing

electronic manifests, based on the

Digital Signature Standard adopted by

the National Institute of Standards and

Technology and published in Federal

Information Processing Standard (FIPS

PUB) 186–1. The proposed digital

signature method would require the use

of the RSA digital signature algorithm

discussed in ANSI X9.31. EPA has also

proposed a ‘‘secure digitized signature’’

method for signing manifests

electronically, since this method may be

a cost-effective alternative to the digital

signature method. The Agency could

not identify an applicable consensus

standard for digitized signatures.

EPA welcomes comments on this

aspect of the proposed rulemaking and,

specifically, invites the public to

identify potentially applicable voluntary

consensus standards and to explain why

such standards should be used in this

regulation.

F. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal Agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

analysis, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Moreover,

section 205 allows EPA to adopt an

alternative other than the least costly,

most cost-effective or least burdensome

alternative if the Administrator

publishes with the final rule an

explanation why that alternative was

not adopted. Before promulgating an

EPA rule for which a written statement

is needed, section 205 of the UMRA

requires EPA to identify and consider a

reasonable number of regulatory

alternatives and adopt the least costly,

most cost-effective, or least burdensome

28296 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

5Burden means the total time, effort, or financial

resources expended by persons to generate,

maintain, retain, or disclose or provide information

to or for a Federal Agency. This includes the time

needed to review instructions; develop, acquire,

install, and utilize technology and systems for the

purposes of collecting, validating, and verifying

information, processing and maintaining

information, and disclosing and providing

information; adjust the existing ways to comply

with any previously applicable instructions and

requirements; train personnel to respond to a

collection of information; search data sources;

complete and review the collection of information;

and transmit or otherwise disclose the information.

alternative that achieves the objectives

of the rule. The provisions of section

205 do not apply when they are

inconsistent with applicable law. Before

EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including tribal governments, it must

have developed under section 203 of the

UMRA a small government agency plan.

The plan must provide for notifying

potentially affected small governments,

enabling officials to have meaningful

and timely input in the development of

regulatory proposals, and informing,

educating, and advising small

governments on compliance with the

regulatory requirements.

This rule does not include a Federal

mandate that may result in expenditures

of $100 million or more to State, local,

or tribal governments in the aggregate,

because the UMRA generally excludes

from the definition of ‘‘Federal

intergovernmental mandate’’ duties that

arise from participation in a voluntary

federal program. States are not legally

required to have or maintain a RCRA

authorized program. Therefore, today’s

proposed rule is not subject to the

requirements of sections 202 and 205 of

UMRA. In addition, EPA has also

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments under section 203 of

UMRA. Small governments would be

affected only to the extent that they

generate or otherwise handle hazardous

wastes, and the net effect of today’s

proposal should be to reduce paperwork

burdens and compliance costs for

hazardous waste handlers. Therefore,

EPA does not believe that this proposal

would have a significant or unique

effect on small governments.

G. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the

Office of Management and Budget

(OMB) under the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. An

information collection request (ICR)

document has been prepared by EPA

(ICR No. 801.#, 19 July 2000), copies of

which are available to the public from

Sandy Farmer, OP Regulatory

Information Division; U.S.

Environmental Protection Agency (MC

2137); Ariel Rios Building; 1200

Pennsylvania Ave., NW., DC 20460 or

by calling (202) 260–2740.

According to the estimates provided

in the ICR for this proposed rule, the

average annual burden 5 to RCRA

hazardous waste handlers as a result of

the proposed revisions to the RCRA

manifest system, represents a net

reduction in burden of about 590,000

hours per year. These burden reductions

represent 20% reduction in annual

burden hours compared to the baseline

burden of 2.920 million hours per year,

as estimated in the RCRA manifest

system baseline ICR No.801 (22 October

1999).

The public should send comments

regarding the burden estimate, or any

other aspect of this collection of

information, including suggestions for

reducing burden to EPA (at the address

given above) and to the Office of

Information and Regulatory Affairs,

Office of Management and Budget,

Washington, DC 20460, marked

‘‘Attention: Desk Officer for EPA.’’

H. Federalism—Applicability of

Executive Order 13132

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ The Executive Order

defines ‘‘policies that have federalism

implications’’ to include regulations

that 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.’’

This proposed rule does not have

federalism implications. It would not

have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132.

The proposed rule would alter the

information that a State may require a

generator or transporter to submit on the

Uniform Manifest, and it would also

alter the States’ current role in

distributing manifests. However, these

changes represent relatively minor

adjustments to the current manifest

system, and they do not alter

substantially the relationship between

the Federal government and the States,

or the distribution of power and

responsibilities among the various

levels of government. The manifest

would remain a tracking document and

shipping paper that is primarily based

on Federal requirements found in RCRA

and in the hazardous materials

transportation laws administered by

DOT. As with existing hazardous waste

manifest requirements, States would

retain the authority to require generators

and treatment, storage, and disposal

facilities to provide information

included in the remaining optional

fields on the manifest and to require the

submission of additional information

related to the hazardous waste shipment

under separate cover, so long as such

requirements are not inconsistent with

the Hazardous Materials Transportation

Act (HMTA) or HMTA regulations.

In addition, the proposed rule would

not impose substantial direct costs on

States and localities. Although states

with manifest data tracking programs

may incur some start-up costs in

converting their tracking systems to

accept the revised paper manifest and/

or electronic manifests, the proposal

neither mandates that States collect

manifests, nor mandates that States

adopt the electronic manifest option as

a part of their programs. Thus,

Executive Order 13132 does not apply

to this rule.

Although section 6 of Executive Order

13132 does not apply to this rule, EPA

consulted substantially with

representatives of State government in

developing this proposal. The Agency

invited State representatives to

participate in two public meetings

during which we presented our

rulemaking objectives and strategies,

and solicited comments and concerns.

These public meetings were conducted

on December 10–11, 1997, and on

January 7–8, 1998. Representatives of 23

States and Territories participated in

these meetings. In addition, State

representatives were invited to

participate in the meetings of the EPA

work group which developed this

proposed rule. Representatives from 4

States (Indiana, Pennsylvania, New

Hampshire, and Rhode Island) were

selected to participate in the work group

meetings, and these States discussed

proposed rule options and draft rule

language extensively with EPA

throughout the development of the

proposal.

During our consultations with States

on this proposal, the State

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28297

representatives identified several

concerns about: (1) The reductions in

the optional fields which States have

used to require additional information

from facilities; (2) the changes proposed

for printing and acquiring manifests; (3)

the costs to States of converting to an

electronic system, and whether

electronic manifesting would be

mandatory for States to adopt in their

programs; and (4) the lack of court

precedents upholding electronic

signatures as a means to sign records. A

summary of the concerns raised during

consultations with the States, and EPA’s

response to those concerns, is provided

below.

In the spirit of Executive Order 13132,

and consistent with EPA policy to

promote communications between EPA

and State and local governments, EPA

specifically solicits comment on this

proposal from State and local officials.

State Concerns and EPA’s Responses

1. Reductions in Optional Fields. The

proposed rule would eliminate several

optional fields from the current

manifest, particularly, those optional

fields that require State ID Numbers (in

addition to EPA ID numbers) for

generators, transporters, and facilities.

The proposal would also eliminate the

optional fields for entering transporters’

phone numbers and the facility’s phone

number on the manifest, and replace

these with the requirement that there be

one emergency response phone number

entered on all manifests. The State

Manifest Document Number optional

field would be replaced with the

requirement that all manifests have a

unique manifest tracking number.

Several State participants identified

the concern that the proposed manifest

would hinder States that wish to collect

this information. In particular, State

representatives indicated to EPA that

several States use the State Generator ID

field to list a generator’s site address,

since this may be a distinct address

from the mailing address which

generators are required to supply on the

current form. EPA considered the points

raised by State participants with regard

to the optional fields during work group

meetings. The Agency concluded that

the benefits of reducing manifest

variability and paperwork burden

outweighed the interests States

identified in continuing to collect these

data on the manifest.

2. Changes in printing and acquiring

manifests. Currently, generators obtain

most of their manifests from State

agencies. There are currently 24 States

that print and distribute their own

manifests for shipments generated in or

designated for facilities in these States.

The manifests printed by the states

reflect the optional fields required to be

used in these states, as well as copy

submission requirements, mailing

addresses for submitting copies, and a

pre-printed manifest number that would

track the manifest uniquely in the

States’ data bases. The proposal would

adopt a standard Federal printing

specification for the manifest, and allow

States, waste handlers, and business

form printers to register to print

manifests according to this

specification. There would be less

variability among manifests, but the

form could be obtained from more

sources.

During the work group meetings, State

participants discussed their interests in

printing and distributing manifests. For

several States, selling blank manifests is

a source of revenue. In all States that

print manifests, there is a concern that

manifest document numbers must be

assured of being unique and accurate.

We were advised that this can be best

accomplished by having manifest

numbers pre-printed on the forms by the

printer. The proposed registry system

and Federal printing specification were

developed based on State

representatives’ advice and

recommendations. There was

substantial discussion of this issue by

the States, and their representatives

indicated that the proposal would meet

most of their concerns. The revenue

issue is more difficult to resolve. Some

States charge manifest fees only to

defray their printing costs, while others

collect program revenue beyond that

required to recoup costs of supplying

manifests. In some instances, manifest

fees charged by States are required by

legislation.

3. Costs to States of Converting to

Electronic Systems. During the public

meetings on the manifest revisions,

State participants voiced concerns that

States would incur significant costs in

converting to electronic systems for

collecting manifests. This issue would

be more of a concern if EPA mandated

use of the electronic manifest by the

States.

Our economic analysis for today’s

proposal reveals that States that adopt

electronic systems for collecting

manifests would in fact experience

significant cost reductions compared to

the current baseline. While each State

may incur about $100,000 initially in

start-up costs ($38,000 in annualized

costs) for automating their systems, we

expect that States would realize

between $213,000 and $1.58 million in

cost savings from the proposed

revisions. The electronic manifest

accounts for most of these savings,

which would more than offset the startup costs. In addition, EPA has proposed

that States would not be required to

adopt the electronic manifest option. So,

no State would be required to incur

these start-up costs, and those States

that choose to convert would

presumably do so as a matter of selfinterest.

4. Lack of court precedents supporting

electronic signatures. During the

development of this proposal, several

States commented that the inclusion of

the electronic manifest in the proposal

was premature, since there are no court

precedents upholding the use of

electronic signatures. EPA appreciates

this concern, which is not unique to this

proposed rulemaking on the manifest.

However, the Congress has recently

enacted legislation which establishes

that electronic records and electronic

signatures should generally be accorded

the same treatment under the law as

documents signed by hand. See the

Government Paperwork Elimination Act

(GPEA), Public Law 105–277, Title XVII

(1998). The Agency believes that this

statute supplies the authority lacking in

prior court decisions supporting the use

of electronic signatures. The proposal

also includes security controls aimed at

ensuring that electronic signatures

cannot be repudiated or misused. For

example, ‘‘digital signatures’’ would be

supported by a Public Key Infrastructure

(PKI), including digital certificates (from

a trusted Certificate Authority) binding

an individual to their signature keys,

password protection and non-disclosure

obligations for the private signature key,

and policies holding individuals

accountable for acts taken under their

signature.

I. Consultation With Tribal

Governments

On November 6, 2000, the President

issued Executive Order 13175 (65 FR

67249) entitled, ‘‘Consultation and

Coordination with Indian Tribal

Governments.’’ Executive Order 13175

takes effect on January 6, 2001, and

revokes Executive Order 13084 (Tribal

Consultation) as of that date. EPA

developed this proposed rule, however,

during the period when Executive Order

13084 was in effect; thus, EPA

addressed tribal considerations under

Executive Order 13084. EPA will

analyze and fully comply with the

requirements of Executive Order 13175

before promulgating the final rule.

Under Executive Order 13084, EPA may

not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian Tribal governments, and that

imposes substantial direct compliance

28298 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

costs on those communities of Indian

Tribal governments, unless the Federal

government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s proposal would not

significantly or uniquely affect the

communities of Indian tribal

governments, nor would it impose

substantial direct compliance costs on

them. This proposal does not create a

mandate for tribal governments, nor

does it impose any enforceable duties

on these entities. Therefore, EPA has

determined that no communities of

Indian tribal governments would be

affected by this proposed rule.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply.

IX. How Would Today’s Proposed

Regulatory Changes Be Administered

and Enforced in the States?

A. Applicability of Federal Rules in

Authorized States

Under section 3006 of RCRA, EPA

may authorize qualified States to

administer the RCRA hazardous waste

program within the State. Following

authorization, the State requirements

authorized by EPA apply in lieu of

equivalent Federal requirements and

become Federally enforceable as

requirements of RCRA. EPA maintains

independent authority to bring

enforcement actions under RCRA

sections 3007, 3008, 3013, and 7003.

Authorized States also have

independent authority to bring

enforcement actions under State law. A

State may receive authorization by

following the approval process

described under 40 CFR part 271. See 40

CFR part 271 for the overall standards

and requirements for authorization.

After a State receives initial

authorization, new Federal

requirements promulgated under RCRA

authority existing prior to the 1984

Hazardous and Solid Waste

Amendments (HSWA) do not apply in

that State until the State adopts and

receives authorization for equivalent

State requirements. The State must

adopt such requirements to maintain

authorization.

In contrast, under RCRA section

3006(g) (42 U.S.C. 6926(g)), new Federal

requirements and prohibitions imposed

pursuant to HSWA provisions take

effect in authorized States at the same

time that they take effect in

unauthorized States. Although

authorized States are still required to

update their hazardous waste programs

to remain equivalent to the Federal

program, EPA carries out HSWA

requirements and prohibitions in

authorized States, including the

issuance of new permits implementing

those requirements, until EPA

authorizes the State to do so.

Authorized States are required to

modify their programs only when EPA

promulgates Federal requirements that

are more stringent or broader in scope

than existing Federal requirements.

RCRA section 3009 allows the States to

impose standards more stringent than

those in the Federal program. See also

40 CFR 271.1(i). Therefore, authorized

States are not required to adopt Federal

regulations, both HSWA and nonHSWA, that are considered less

stringent.

B. Authorization of States for Today’s

Proposal

Except for one provision, we would

promulgate today’s proposal mainly

under non-HSWA statutory authority.

The section of today’s proposal that

would be promulgated under HSWA

authority (specifically, RCRA section

3002(b)) is proposed § 262.27, which

would consist of the waste

minimization certification statement.

Therefore, when promulgated, the

Agency would add this section of the

rule to Table 1 in 40 CFR 271.1(j), which

identifies the Federal program

requirements that are promulgated

pursuant to the statutory authority that

was added by HSWA. States may apply

for final authorization for the HSWA

provisions in Table 1, as discussed in

the following section of this preamble.

The proposed regulatory provision

would contain the language which is in

the current manifest form, but would

not be in the proposed revised form

except by reference to proposed

§ 262.27. Generators would still be

required to certify to waste

minimization statements on the

manifest each time a manifest is

initiated. Therefore, proposed § 262.27

would be effective under Federal

authority before States receive

authorization only when the revised

manifest form is used in these States.

All the other parts of today’s proposal

would become effective under RCRA

authority in authorized States only

when they revise their programs and

receive authorization for the final rule.

1. Would Authorized States Be Required

To Adopt the New Uniform Manifest

Form?

Under today’s proposal, authorized

States would be required to adopt the

new Uniform Manifest form. To obtain

and maintain authorization, States and

territories are required to be consistent

with the federal program and other State

programs. Although sections 3006 and

3009 of RCRA allow States to have

regulations that are different than the

Federal requirements, as long as they

are equivalent to or more stringent than

or broader in scope, section 3006(b) also

requires States to have regulations that

are consistent with the federal

regulations. The requirements of this

statutory provision are codified in 40

CFR 271.4, which specifically applies

the consistency requirement to the

manifest system under 40 CFR 271.4(c).

When EPA originally promulgated the

Uniform Manifest in 1984, we found

that consistency was extremely

important where requirements

addressing transportation are

concerned. We found during the early

years of implementing the RCRA

program that a proliferation of many

State-specific manifest forms could

hamper the movement of hazardous

waste to waste management facilities,

and that differing manifest use and

information requirements between

States caused added burdens and

confusion among those trying to comply

with the Subtitle C regulations. See 49

FR 10490 at 10491 (March 20, 1984).

Therefore, in 1984, EPA announced that

consistency in the use of the Uniform

Manifest would be required from

authorized States, and that, with the

exception of the limited information

allowed in the optional fields,

authorized States could not require any

other manifest or information to

accompany a waste shipment. Id. Based

on 16 years of experience with the

Uniform Manifest, EPA concludes that

variability in the current manifest

system should be reduced further, since

the current level of variability continues

to produce excessive burden, confusion,

and compliance problems. Moreover,

EPA restates that program consistency

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28299

under RCRA section 3006 and 40 CFR

271.4(c) would demand that authorized

States must require the use of the

Uniform Manifest as revised by today’s

proposals.

Under 40 CFR 271.4(c) and 271.10(f)

and (h), in order to be consistent with

the federal program, and receive

approval from EPA, States must have a

manifest system that includes a manifest

format that follows the Federal format

required in 40 CFR 262.20(a) and

262.21. Today’s proposal would amend

§ 271.10(h) to correspond with the

proposed changes to the manifest

format. These amendments are

discussed in detail in section IV of

today’s proposal. Key among these

amendments are form revisions that

would eliminate most optional fields

and establish a new procedure for

obtaining a standard manifest form from

registered printers. The new, standard

manifest format would present

authorized states with fewer areas of

potential variability than arise under

existing regulations. For example,

existing § 271.10(h)(1) allows authorized

states to supplement the Uniform

Manifest format with several pre-printed

items, such as a State manifest number,

light organizational marks to indicate

proper placement of characters,

information and instructions in the

margins or on the back of the form, and

references to specific State laws or

regulations following the generator’s

certification language. The proposed

amendments to § 271.10(h) would

eliminate provisions addressing States’

ability to supplement the form.

However, proposed § 271.10(h) would

retain language clarifying that States

could require information to be

supplied to address the two proposed

optional fields—Waste Codes (Block A)

and Biennial Reporting system type

codes (Block B)—and to provide

additional waste descriptions in Block

14 of the proposed form.

Because the new uniform manifest

would (except for proposed § 262.27 as

explained above) be promulgated

pursuant to non-HSWA authority, it

would not become effective as a RCRA

requirement in authorized States until

those States revise their programs and

receive authorization. However, federal

hazardous material transportation law

preempts any State, local or Indian tribe

requirement on ‘‘the preparation,

execution, and use of shipping

documents related to hazardous

materials and requirements related to

the number, contents, and placement of

those documents’’ that is not

substantively the same as requirements

in the hazardous materials regulations.

49 U.S.C. 5125(b)(1)(C). The Department

of Transportation currently requires the

use of the Uniform Hazardous Waste

Manifest for shipments of hazardous

waste (which is also a hazardous

material). 49 CFR 172.205. Thus, waste

handlers would be required, under 49

CFR 172.205, to use the revised Uniform

Hazardous Waste Manifest upon the

two-year delayed compliance date of the

final rule (see Section III.E. for further

discussion regarding the two-year

delayed compliance date).

EPA has involved the authorized

States, as co-implementers of the RCRA

program, in the development of today’s

proposal. We believe that there is

support among the States for the

manifest revisions. EPA also believes

that the States would generally be able

to revise their RCRA programs to

include this amended manifest form

within the proposed transition period,

although some States may need to enact

legislative changes to effect this change.

2. Would Authorized States Be Required

To Adopt Electronic Manifesting?

A significant issue presented by

today’s proposal is whether the final

rule should require that authorized

States adopt the electronic manifest

option as a part of their approved

programs, in order to be consistent.

Under RCRA section 3006, authorized

State programs must be consistent with

the Federal program and other State

programs, and EPA’s authorization

regulations state that State manifest

systems that do not meet EPA’s

requirements or that unreasonably

impede the free movement of waste

shall be deemed inconsistent. See 40

CFR 271.4(a) and (e).

We are tentatively proposing not to

require States to adopt the electronic

manifest option. However, we are

considering whether States should be

required to adopt the electronic

manifest option in order to ensure

consistency with the Federal program

and other State programs. For example,

EPA could require States to adopt the

electronic manifest option if we were to

conclude that the free movement of

waste in commerce may be burdened

unreasonably if individual States choose

not to allow electronic manifests.

Similarly, we may require State

adoption of the electronic manifest

option if we determine that the

cumulative effect of a patchwork of

States—some recognizing and others not

recognizing electronic manifests—may

itself unduly burden the free movement

of waste. This result may render the

State program inconsistent with the

federal program under the provisions of

40 CFR 271.4(a). Other reasons that

could support EPA’s determination

under § 271.4(a) to deem State programs

that do not provide for electronic

manifests to be inconsistent include the

concern that the development of

electronic manifesting systems by waste

handlers would be frustrated

significantly if States elected not to

adopt the option, and that market forces

and consensus processes would not be

sufficient to promote and implement the

electronic manifest option.

At this time, EPA believes that there

are strong practical and business

influences that would promote the

adoption of electronic manifesting.

Many States are in the forefront of

efforts to provide electronic access to

government services and to encourage

electronic commerce, so requiring State

programs to adopt the electronic

manifest standards may not be

necessary to accomplish progress in this

area. Moreover, during the public

meetings which EPA conducted as we

developed this proposal, we stressed the

voluntary and optional nature of the

manifest automation component of the

proposed rule. States likely understood

that manifest automation would be

optional for state programs as well as for

the waste handlers who use the

manifest.

Thus, EPA is tentatively proposing

that authorized States would not be

required to adopt the electronic

manifest system as part of their state

programs. Under today’s proposal, the

electronic manifest system would not be

effective under RCRA in authorized

States unless an authorized State revises

its program and receives authorization

for the final electronic manifest system

requirements. In addition, under today’s

proposal, an electronic manifest would

not be considered a ‘‘shipping

document’’ under 49 U.S.C. 5125(b) and

thus, hazardous materials transportation

law would not preempt state programs

that do not allow the use of an

electronic manifest.

Although States could choose not to

adopt the electronic manifest system,

those that do would have to adopt the

standards for the electronic formats,

electronic signature standards, and

computer security controls that we

would promulgate when we finalize this

proposal. In addition, State programs

electing to adopt the electronic manifest

option would need to adopt State

counterparts to the final regulations that

address the use of the electronic

manifest by generators, transporters, and

TSDFs. As explained in section VII.E.1.

of this preamble, the need for a uniform

manifest to allow the free movement of

waste applies to the electronic manifest

as well as the paper manifest, if not

more. The state authorization

28300 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

regulations addressing generator

requirements, 40 CFR 271.10(f) and (h),

already refer to the manifest regulations,

which would impose on states that

adopt the electronic manifest option the

requirement that their programs be

revised to require waste handlers to use

the electronic manifest formats,

electronic signature standards, and

computer security controls described in

today’s proposal. These areas require a

consistent implementation if electronic

manifests are to be freely exchanged

between waste handlers and state

agencies located in various

jurisdictions.

However, States would retain the

latitude to either adopt or not adopt the

preparer signature or third-party storage

features of today’s proposal. Thus, a

state that did not adopt one or both of

these features could choose to operate a

more stringent program in these areas.

The Agency requests comment on how

electronic manifesting should be

implemented among the various

authorized States, how today’s proposed

standards would impact states that may

already have requirements in place or

efforts underway to address electronic

records and electronic signatures, and

how any adverse impacts on State

programs might be mitigated.

Appendix A to the Preamble—Extensible

Markup Language (XML) Document Type

Definition for the Hazardous Waste Manifest

<!—This document represents the Document

Type Definition for the Uniform

Hazardous Waste Manifest—>

<!—Signature blocks are represented as

#PCDATA until final recommendations

are adopted for representing electronic

signatures in XML documents—>

<!—References for the W3C Digital Signature

Working Group:

XML Signature Syntax and Processing—

http://www.w3.org/2000/02/xmldsig#

DTD for Digital Signatures—http://www/

w3.org/TR/xmldsig-core/xmldsig-coreschema.dtd—>

<!ELEMENT manifest (title,

manifest_tracking_number,

generator_info, transporter_info+,

tsdf_info, waste_description+,

special_handling_instructions,

generator_certification,

international_shipments,

transporter_certification+,

tsdf_discrepancy, tsdf_certification,

tsdf_brs_codes*)>

<!ELEMENT title (#PCDATA)>

<!ATTLIST title fname CDATA #FIXED

‘‘UNIFORM HAZARDOUS WASTE

MANIFEST’’>

<!ELEMENT manifest_tracking_number

(#PCDATA)>

<!ATTLIST manifest_tracking_number tno

NMTOKEN #REQUIRED>

<!ELEMENT generator_info (generator_name,

generator_us_epa_id, generator_street,

generator_city, generator_state,

generator_zip_code,

generator_telephone_number,

generator_emergency_

response_telephone)>

<!ELEMENT generator_name (#PCDATA)>

<!ATTLIST generator_name gname CDATA

#REQUIRED>

<!ELEMENT generator_us_epa_id

(#PCDATA)>

<!ATTLIST generator_us_epa_id genepaid

NMTOKEN #REQUIRED>

<!ELEMENT generator_street (#PCDATA)>

<!ATTLIST generator_street gstreet CDATA

#REQUIRED>

<!ELEMENT generator_city (#PCDATA)>

<!ATTLIST generator_city gcity CDATA

#REQUIRED>

<!ELEMENT generator_state (#PCDATA)>

<!ATTLIST generator_state gstatecode

NMTOKEN #REQUIRED>

<!ELEMENT generator_zip_code

(#PCDATA)>

<!ATTLIST generator_zip_code gzip CDATA

#REQUIRED>

<!ELEMENT generator_telephone_number

(#PCDATA)>

<!ATTLIST generator_telephone_number gtel

NMTOKEN #REQUIRED>

<!ELEMENT generator_emergency_response_

telephone (#PCDATA)>

<!ATTLIST generator_emergency_response_

telephone gemr NMTOKEN

#REQUIRED>

<!ELEMENT transporter_info

(transporter_name,

transporter_us_epa_id)+>

<!ELEMENT transporter_name (#PCDATA)>

<!ATTLIST transporter_name tname CDATA

#REQUIRED>

<!ELEMENT transporter_us_epa_id

(#PCDATA)>

<!ATTLIST transporter_us_epa_id transepaid

NMTOKEN #REQUIRED>

<!ELEMENT tsdf_info (tsdf_name,

tsdf_us_epa_id, tsdf_street, tsdf_city,

tsdf_state, tsdf_zip_code)>

<!ELEMENT tsdf_name (#PCDATA)>

<!ATTLIST tsdf_name tsname CDATA

#REQUIRED>

<!ELEMENT tsdf_us_epa_id (#PCDATA)>

<!ATTLIST tsdf_us_epa_id tsdfepaid

NMTOKEN #REQUIRED>

<!ELEMENT tsdf_street (#PCDATA)>

<!ATTLIST tsdf_street tstreet CDATA

#REQUIRED>

<!ELEMENT tsdf_city (#PCDATA)>

<!ATTLIST tsdf_city tcity CDATA

#REQUIRED

<!ELEMENT tsdf_state (#PCDATA)

<!ATTLIST tsdf_state tstatecode NMTOKEN

#REQUIRED

<!ELEMENT tsdf_zip_code (#PCDATA)>

<!ATTLIST tsdf_zip_code tzip CDATA

#REQUIRED>

<!ELEMENT waste_description

(proper_shipping_name, hazard_class,

dot_id_no, packing_group,

no_of_containers, container_type,

total_quantity, unit_wt_vol,

waste_codes+)+>

<!ELEMENT proper_shipping_name

(#PCDATA)>

<!ATTLIST proper_shipping_name pname

CDATA #REQUIRED>

<!ELEMENT hazard_class (#PCDATA)>

<!ATTLIST hazard_class hclass NMTOKEN

#REQUIRED>

<!ELEMENT dot_id_no (#PCDATA)>

<!ATTLIST dot_id_no dotid NMTOKEN

#REQUIRED>

<!ELEMENT packing_group (#PCDATA)>

<!ATTLIST packing_group pgroup CDATA

#REQUIRED>

<!ELEMENT no_of_containers (#PCDATA)>

<!ATTLIST no_of_containers nocon

NMTOKEN #REQUIRED>

<!ELEMENT container_type (#PCDATA)>

<!ATTLIST container_type code CDATA

#REQUIRED>

<!ELEMENT total_quantity (#PCDATA)>

<!ATTLIST total_quantity totquan CDATA

#REQUIRED>

<!ELEMENT unit_wt_vol (#PCDATA)>

<!ATTLIST unit_wt_vol volcode CDATA

#REQUIRED>

<!ELEMENT waste_codes (#PCDATA)

<!ATTLIST waste_codes wcode NMTOKEN

#IMPLIED>

<!ELEMENT special_handling_instructions

(#PCDATA)>

<!ATTLIST special_handling_instructions

instr CDATA #IMPLIED>

<!ELEMENT generator_certification

(generator_signature,

generator_printed_name,

generator_date)>

<!ELEMENT generator_signature

(#PCDATA)>

<!ELEMENT generator_printed_name

(#PCDATA)>

<!ATTLIST generator_printed_name gpname

CDATA #REQUIRED>

<!ELEMENT generator_date (#PCDATA)>

<!ATTLIST generator_date gendate CDATA

#REQUIRED>

<!ELEMENT international_shipments

(intl_import, intl_export,

port_of_entry_exit, intl_date,

intl_signature)>

<!ELEMENT intl_import (#PCDATA)>

<!ELEMENT intl_export (#PCDATA)>

<!ELEMENT port_of_entry_exit (#PCDATA)>

<!ELEMENT intl_date (#PCDATA)>

<!ATTLIST intl_date intldate CDATA

#IMPLIED>

<!ELEMENT intl_signature (#PCDATA)>

<!ELEMENT transporter_certification

(transporter_signature,

transporter_printed_name,

transporter_date)+>

<!ELEMENT transporter_signature

(#PCDATA)>

<!ELEMENT transporter_printed_name

(#PCDATA)>

<!ATTLIST transporter_printed_name

tpname CDATA #REQUIRED>

<!ELEMENT transporter_date (#PCDATA)>

<!ATTLIST transporter_date transpdate

CDATA #REQUIRED>

<!ELEMENT tsdf_discrepancy

(discrepancy_quantity_type,

container_residue, rejected_waste,

manifest_reference_no, description)>

<!ELEMENT discrepancy_quantity_type

(#PCDATA)>

<!ELEMENT container_residue (#PCDATA)>

<!ELEMENT rejected_waste (#PCDATA)>

<!ELEMENT manifest_reference_no

(#PCDATA)>

<!ATTLIST manifest_reference_no mrno

NMTOKEN #IMPLIED>

<!ELEMENT description (#PCDATA)>

<!ATTLIST description desc CDATA

#IMPLIED>

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28301

<!ELEMENT tsdf_certification

(tsdf_signature, tsdf_printed_name,

tsdf_date)>

<!ELEMENT tsdf_signature (#PCDATA)>

<!ELEMENT tsdf_printed_name (#PCDATA)>

<!ATTLIST tsdf_printed_name tspname

CDATA #REQUIRED>

<!ELEMENT tsdf_date (#PCDATA)>

<!ATTLIST tsdf_date tsdfdate CDATA

#REQUIRED>

<!ELEMENT tsdf_brs_codes (tsdf_a, tsdf_b,

tsdf_c, tsdf_d)>

<!ELEMENT tsdf_a (#PCDATA)>

<!ATTLIST tsdf_a codea NMTOKEN

#IMPLIED>

<!ELEMENT tsdf_b (#PCDATA)>

<!ATTLIST tsdf_b codeb NMTOKEN

#IMPLIED>

<!ELEMENT tsdf_c (#PCDATA)>

<!ATTLIST tsdf_c codec NMTOKEN

#IMPLIED>

<!ELEMENT tsdfld (#PCDATA)>

<!ATTLIST tsdfld coded NMTOKEN

#IMPLIED>

List of Subjects

40 CFR Part 260

Environmental protection,

Administrative practices and procedure,

Confidential business information,

Hazardous waste.

40 CFR Part 261

Environmental protection, Hazardous

waste, Recycling, Reporting and

recordkeeping requirements.

40 CFR Part 262

Environmental protection, Exports,

Hazardous materials transportation,

Hazardous waste.

40 CFR Part 263

Environmental protection, Hazardous

materials transportation, Hazardous

waste.

40 CFR Part 264

Environmental protection, Air

pollution control, Hazardous waste,

Insurance, Packaging and containers,

Reporting and recordkeeping

requirements, Security measures, Surety

bonds.

40 CFR Part 265

Environmental protection, Air

pollution control, Hazardous waste,

Insurance, Packaging and containers,

Reporting and recordkeeping

requirements, Security measures, Surety

bonds, Water supply.

40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous materials transportation,

Hazardous waste, Indian lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements, Water pollution control,

Water supply.

Dated: January 4, 2001.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 260—HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

1. The authority citation for part 260

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921–

6927, 6930, 6934, 6935, 6937, 6938, 6939,

and 6974.

Subpart B—Definitions

2. Section 260.10 is amended by

removing the definition of ‘‘Manifest

Document Number’’, revising the

definition of ‘‘manifest’’ and adding in

alphabetical order the definition of

‘‘Manifest tracking number’’ and

‘‘Preparer’’ to read as follows.

§ 260.10 Definitions.

* * * * *

Manifest means the shipping

document EPA Form 8700–22

(including, if necessary, EPA Form

8700–22A), or an electronic format

identified in § 262.20(a)(3), originated

and signed in accordance with the

applicable requirements of parts 262

through 265.

Manifest tracking number means the

alphanumeric identification number

(i.e., a unique three letter prefix

followed by eight numerical digits),

which is pre-printed in Item 3 of the

Manifest by a registered source.

* * * * *

Preparer means someone authorized

by the generator to prepare, complete,

and/or sign the generator’s Manifest on

behalf of the generator.

* * * * *

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

3. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, 6924(y) and 6938.

Subpart A—General

4. Section 261.7 is amended by

revising paragraph (b)(1)(iii) to read as

follows:

§ 261.7 Residues of hazardous waste in

empty containers.

* * * * *

(b)(1) * * *

(iii)(A) No more than 3 percent by

weight of the total capacity of the

container remains in the container or

inner liner if the container is less than

or equal to 119 gallons in size; or

(B) No more than 0.3 percent by

weight of the total capacity of the

container remains in the container or

inner liner if the container is greater

than 119 gallons in size.

* * * * *

PART 262—STANDARDS APPLICABLE

TO GENERATORS OF HAZARDOUS

WASTE

5. The authority citation for part 262

continues to read as follows:

Authority: 42 U.S.C. 6906, 6912(a), 6922–

6925, 6937, and 6938.

6. In § 262.20 the heading and

paragraph (a) are revised to read as

follows:

§ 262.20 Manifest Formats and General

Requirements

(a)(1) Manifest Requirement. A

generator who transports, or offers for

transportation, hazardous waste for

offsite treatment, storage, or disposal

must prepare a manifest to describe the

hazardous waste being shipped offsite

and its routing to a designated facility.

(2) Paper format. Generators using a

paper manifest form must prepare their

manifest on EPA Form 8700–22 and, if

necessary, Form 8700–22A, and must

prepare their manifest according to the

instructions in the appendix to this part

262.

(3) Electronic formats. Generators

using an electronic format must use

either the Electronic Data Interchange

(EDI) format described in paragraph

(a)(3)(i) of this section, or the Internet

Forms format described in paragraph

(a)(3)(ii) of this section. All electronic

manifests must be used in accordance

with the electronic manifest use

requirements of § 262.24, signed in

accordance with the electronic signature

requirements of § 262.25, and generated

and maintained on electronic systems

which meet the security requirements of

§ 262.26. Generators using the electronic

manifest must prepare the manifest

according to the instructions included

in the appendix to part 262.

(i) EDI format. The EDI format for the

manifest must conform to the American

National Standards Institute (ANSI)

Accredited Standards Committee (ASC)

X12 standards for Electronic Data

Interchange and the requirements and

mapping conventions promulgated by

the Federal Electronic Data Interchange

Standards Management Coordinating

Committee (FESMCC) for the ANSI X12

Transaction Sets 856 (Ship Notice/

28302 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

Manifest) and 861 (Receipt and Advice).

When EPA decides to adopt a new

version and release of the ANSI X12

standard or to modify the conventional

mapping, EPA will publish a Federal

Register notice announcing this change

to the implementation convention and

establishing a conversion date. Those

persons using the EDI format would

have a minimum of 60 days to conform

to the new version or mapping. EPA

would discontinue support for the

previous implementation convention no

sooner than 90 calendar days after the

conversion date.

(ii) Internet forms format. The Internet

Forms format for the manifest must

conform to the EPA Approved

Document Type Definition, which

defines the data elements, tag

identifiers, data element relationships,

contents, and structure of the Hazardous

Waste Manifest, in accordance with the

Extensible Markup Language (XML)

specifications maintained by the World

Wide Web Consortium.

* * * * *

7. Section 262.21 is revised to read as

follows:

§ 262.21 Manifest tracking numbers,

manifest printing, and obtaining manifests.

(a) Manifest tracking numbers. (1)

Paper and electronic manifests may not

be transmitted without a manifest

tracking number assigned in accordance

with a numbering system approved by

EPA.

(2) A person may not assign manifest

tracking numbers without submitting an

application to EPA and receiving

approval of their manifest tracking

number system. The application to EPA

must contain the following information:

(i) Name of applicant’s organization

(e.g., name of state and department or

name of company);

(ii) Name of contact person and

telephone number;

(iii) Mailing address;

(iv) EPA identification number, if

applicable;

(v) Brief description of applicant’s

government or business activity;

(vi) Applicant’s proposed, unique

three-letter prefix for its manifest

tracking numbers, including an

explanation of any limitations to the use

of such a prefix, if any (e.g., historic

numbers to avoid); and

(vii) Signed certification that the

applicant will ensure that no tracking

number will be intentionally duplicated

and, if applicable, that all manifest

printing specifications in paragraph (b)

will be followed.

(b) Manifest printing. (1) Paper

manifest forms must be printed

according to the following

specifications:

(i) The form must be printed in the

same format as EPA Form 8700–22a and

b;

(ii) A Manifest Tracking Number

assigned in accordance with a

numbering system approved by EPA

under paragraph (a) of this section must

be preprinted in Item Three of the form;

(iii) Boxes cannot be added to the

form;

(iv) Boxes cannot be deleted from the

form;

(v) The form must be printed in the

dimensions of 81⁄2 x 11 inches;

(vi) The form must be printed in black

ink that can be photocopied or faxed;

(vii) The instructions in 40 CFR part

262, appendix 1 must be printed on the

back of the form;

(viii) Follow the same copy naming

structure as outlined below in

§ 262.21(c)(3);

(ix) The form must be printed as a 6

copy form and it must be indicated on

the form that copies of the form must be

distributed as follows:

(A) Page 1 (top copy): ‘‘Designated

facility to destination State’’ (if

required);

(B) Page 2: ‘‘Designated facility to

generator State’’ (if required);

(C) Page 3: ‘‘Designated facility to

generator’’;

(D) Page 4: ‘‘Designated facility copy’’

(E) Page 5: ‘‘Transporter copy’’; and

(F) Page 6 (bottom copy): ‘‘Generator

to generator State’’ (if required).

(2) Information required to complete

the manifest may be preprinted on the

manifest form. In addition, the

following may also be printed on the

manifest form:

(i) In items 10 and 28 (DOT

description), a hazardous materials

(HM) column for use in distinguishing

between federally regulated wastes and

other materials according to 49 CFR

172.201(a)(1);

(ii) Anywhere on the form, light

organizational marks to indicate proper

placement of characters or to facilitate

data entry; and/or

(iii) The State optional boxes may be

lightly shaded in the optional boxes;

(iv) In the Generator’s Certification

box, reference to State laws or

regulations following the Federal

certification;

(3) Electronic manifests must meet the

electronic format requirements

described in § 262.20.

(c) Obtaining manifests. (1) A

generator using a paper manifest may

use manifest forms printed by any of the

following sources so long as the source

of the printed form has registered and

received approval from EPA to assign

manifest tracking numbers under

paragraph (a) of this section, and the

form is printed in accordance with the

specifications in paragraph (b) of this

section:

(i) Any state agency that prints the

manifest;

(ii) Commercial Form Printers;

(iii) Any hazardous waste generator,

transporter, or TSDF; and

(iv) Brokers or other preparers who

prepare or arrange shipments of

hazardous waste for transportation.

(2) A generator must contact the

consignment state to determine whether

that state requires generators to enter

optional state information on the

manifest. Generators must also contact

the consignment state to determine

whether they are required to submit a

copy of the manifest to the state.

8. Section 262.23 is amended by

revising the heading to read as follows:

§ 262.23 Use of the paper manifest.

* * * * *

9. Subpart B is amended by adding

new § 262.24;

§ 262.24 Use of the electronic manifest.

(a) Optional use. In lieu of using the

paper manifest, generators may use an

electronic manifest format identified in

§ 262.20(a)(3). A generator may only use

an electronic manifest if:

(1) At least the generator and the

designated facility for the shipment are

both able to send and receive electronic

manifest transmissions using electronic

systems that meet the security

requirements of § 262.26, or the

generator is able to access such an

electronic system operated by the

transporter who receives the waste

shipment from the generator for off-site

transportation,

(2) Both the generator (or authorized

preparer) and designated facility for the

shipment are able to electronically sign

their electronic manifests with an

electronic signature that meets the

requirements of § 262.25, and

(3) If manifest copies are collected by

any authorized state(s), the state(s) is

able to accept electronic manifest copies

in lieu of paper copies, or, the state(s)

is provided with suitable paper copies

of the manifest.

(b) Manifest preparation and

signature by authorized preparer. A

person who in fact prepares a

generator’s hazardous waste shipment

for off-site transportation may sign the

generator’s certification on behalf of the

generator. Such a preparer may sign the

generator’s certification on the manifest

if:

(1) The generator has authorized the

preparer to prepare shipments and

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28303

initiate manifests on behalf of the

generator; and

(2) The preparer provides the

generator with a copy of the manifest for

the generator’s records. In those cases

where the preparer signs the generator’s

certification electronically but the

generator is not able to retain an

electronic copy of the manifest, the

preparer must provide the generator

with a paper copy of the manifest, with

a notation in the generator’s certification

block indicating that the manifest was

signed electronically by the preparer on

behalf of the generator.

(c) Manifest origination procedures. A

generator originating an electronic

manifest must:

(1) Electronically sign the manifest

certification in accordance with

§ 262.25;

(2) Transmit the manifest to the initial

transporter and obtain back from this

transporter a copy of the manifest

bearing the signature of the initial

transporter and the date of acceptance of

the shipment. If the transporter is not

able to accept and sign an electronic

manifest, the generator must instead

obtain from the transporter a

handwritten signature and date of

acceptance on a paper copy of the

manifest or other shipping paper under

49 CFR part 272, subpart C. If a shipping

paper is used to meet this requirement,

it must bear the manifest tracking

number assigned to the electronic

manifest used for tracking the waste

shipment.

(3) Retain one electronic copy in

accordance with the retention period

described in § 262.40(a). If the initial

transporter is not able to accept and sign

an electronic manifest, or if the

generator signs an electronic manifest

using the initial transporter’s electronic

system but is not able to take back an

electronic copy, then the generator must

retain a hard copy of the manifest or

shipping paper signed by the initial

transporter. The hard copy retained by

the generator must display the manifest

tracking number assigned to the

shipment.

(4) Provide the initial transporter with

one hard copy of the manifest or other

hazardous materials shipping paper as

defined in 49 CFR 171.8. This hard copy

of the manifest or other shipping paper

must be carried on the vehicle in

accordance with 40 CFR 263.20(c) and

the accessibility requirements of 49 CFR

177.817(e), and it must display the

manifest tracking number assigned to

the shipment.

(d) If any transporter listed on the

manifest is not able to accept, sign, and

transmit electronic manifest copies,

then the generator must also send an

electronic manifest copy to the

designated facility. The copy

transmitted to the designated facility

must bear the generator’s electronically

signed certification, and either the

initial transporter’s electronic signature

and date of acceptance, or a notation

indicating that the transporter signed a

manifest copy or other shipping paper

by hand and the date that the shipment

was received by the initial transporter.

(e) For shipments of hazardous waste

within the United States solely by water

(bulk shipments only), the generator

must send an electronic copy of the

manifest, dated and signed in

accordance with this section, to the

owner or operator of the designated

facility or the last water (bulk shipment)

transporter to handle the waste in the

United States if exported by water.

Copies of the electronic manifest are not

required for each transporter.

(f) For rail shipments of hazardous

waste within the United States which

originate at the site of generation, the

generator must send an electronic copy

of the manifest, dated and signed in

accordance with this section, to:

(1) The next non-rail transporter, if

any; or

(2) The designated facility, if

transported solely by rail; or

(3) The last rail transporter to handle

the waste in the United States if

exported by rail.

(g) For shipments of hazardous waste

to a designated facility in an authorized

State which has not yet obtained

authorization to regulate that particular

waste as hazardous, the generator must

assure that the designated facility agrees

to sign and return the manifest to the

generator, and that any out-of-state

transporter signs and forwards the

manifest to the designated facility.

10. Subpart B is amended by adding

new § 262.25;

§ 262.25 Electronic manifest signatures.

(a) An ‘‘electronic signature’’ means a

method of signing an electronic

document with a computer generated

symbol or series of symbols in a way

that indicates a particular person as the

source of the document, and indicates

such person’s approval of the content of

the document, or an intent to be bound

by the document.

(b) All electronic manifests must be

signed with electronic signatures which

meet either the digital signature

standard described in paragraphs (c)

through (f) of this section, or the secure

digitized signature standard described

in paragraph (g) of this section.

(c) Digital signatures. A ‘‘digital

signature’’ means an electronic

signature that is based on private key/

public key cryptography, and which

allows both the identity of the signer

and the integrity of the data to be

verified.

(d) Digital signature generation. (1)

The generation of digital signatures

must conform to the Digital Signature

Standard adopted by the National

Institute of Standards and Technology

(NIST) in Federal Information

Processing Standard (FIPS PUB) 186–1,

December 15, 1998. In accordance with

FIPS PUB 186–1, the Secure Hash

Algorithm (SHA) described in FIPS PUB

180–1 (NIST, April, 1995) and the RSA

digital signature algorithm described in

ANSI X9.31 must be used to generate

and verify digital signatures for the

hazardous waste manifest.

(2) Key lengths for encryption keys

must be not less than 1024 bits.

(e) Private key security. (1) The

private encryption key used to generate

a manifest digital signature may reside

on either software or hardware, e.g., a

‘‘smart’’ card or other hardware token.

Access to the private key must be

protected by at least one authority

challenge, such as a PIN or password.

The subscriber must keep the PIN or

password confidential at all times.

(2) Individuals are responsible at all

times for maintaining the confidentiality

of their private keys. The private key

must be protected at all times by the

subscriber against disclosure, misuse, or

compromise. An individual who uses a

private key to sign electronic manifests

must not delegate the use of their

private key to another person.

(f) Digital Certificate Requirements.

[Reserved]

(g) Secure digitized signatures. A

‘‘secure digitized signature’’ means an

electronic signature that is created with

a system which includes a digitizer

device that collects signature data from

a stylus that the signer moves across the

surface of the device, and which

includes software which can process

signature input in the following manner:

(1) The signature software must block

access to any editing or copying features

that might otherwise allow a nonoriginal signature image to be inserted

in or copied to a document.

(2) The signature software must be

designed to accept only original

signature input created dynamically

with the digitizer device.

(3) The signature software must

record the signature input data as a

signature object that contains:

(i) The graphical image of the signer’s

handwritten signature,

(ii) Signature capture information,

including the claimed identity of the

signer, and the date and time of the

signature.

28304 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

(iii) Document binding data,

particularly, an encrypted checksum or

hash function of the data to which the

signature relates.

(4) The signature software must allow

interrogation and verification of

signature objects, to establish whether

any data has been changed since a

signature was captured. The software

must alert the user if an invalid

signature is detected.

(5) The signature software must be

capable of presenting the graphical

image of the captured signature in an

industry standard bitmap format (e.g.,

TIFF or BMP), for display or print

operations.

(h) Proof that an individual’s

electronic signature was affixed to an

electronic manifest is evidence, and

may suffice to establish, that the

individual identified as the signor

affixed the signature and did so with the

intent to sign the electronic document to

give it effect.

11. Subpart B is amended by adding

new § 262.26;

§ 262.26 Electronic manifest systems and

security.

(a) Electronic manifests must be

generated and maintained by electronic

systems that comply with paragraph (c)

of this section. Electronic copies of

manifests, which are electronically

signed in accordance with § 262.25, and

which are generated or maintained by

electronic systems that meet the security

requirements of paragraph (c) of this

section, will be considered the legal

equivalent to paper manifest copies

bearing handwritten signatures, for

purposes of satisfying any requirement

in these regulations to initiate, use, or

transmit a manifest, or to retain a record

of a manifest copy or produce it for

inspection.

(b) Electronic manifest copies as well

as any computer systems (hardware and

software), controls, and related

documentation maintained under this

section, must be readily available for,

and subject to inspection by any EPA or

authorized State inspector.

(c) Electronic systems used to satisfy

the requirements in these regulations to

initiate, use, transmit, or retain records

of manifests, must employ controls and

procedures to ensure the authenticity

and integrity of their electronic records,

and to ensure that the signer of these

records cannot readily repudiate the

signature and associated records as

genuine. Such procedures and controls

must include:

(1) Validation of computer systems by

an independent, qualified information

systems security professional who has

prepared a written assessment of the

system and has certified that the system

generates and processes data accurately

and reliably, that the system performs

consistently and as intended, that the

system is fully interoperable with any

other electronic manifest system with

which the system exchanges electronic

manifests, that the system is designed

and can be operated to meet the

computer security standards of this

section and good security practices

common to trusted electronic commerce

systems, and that appropriate

precautions have been taken to ensure

that these security measures cannot be

avoided or defeated.

(2) The ability to generate accurate

and complete records in both electronic

(i.e, EDI and XML) formats and human

readable formats, which can be made

readily available for inspection,

printing, or copying by EPA or State

inspectors during the required record

retention period.

(3) The ability to protect electronic

records from all reasonably foreseeable

causes of damage or corruption

(including accidental or intentional

erasures and alterations, and physical

causes such as fire, heat, magnetism or

water damage), to ensure their accurate

and ready retrieval during the entire

record retention period, including the

retention of prior versions of hardware

and software needed to access electronic

records, and to create secure back-up

copies of records or otherwise provide

for data recovery in the event of damage

or errors.

(4) The ability to limit system access

to only authorized individuals, and to

use authority checks (i.e., user IDs and

passwords that uniquely identify each

user to the system) to ensure that only

authorized individuals can use the

system, sign records, access input or

output devices, alter a record, or

perform discrete system operations,

(5) The ability to provide and

maintain a secure computer-generated

and time-stamped audit trail for

independently recording the date and

time of any operator entries and actions

that create, modify, or delete records,

and for establishing 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

prompting waste handlers to sign

manifests electronically in the proper

sequence and on the appropriate

signature blocks, for ensuring that data

entered by previous waste handlers

cannot be altered once they have

electronically signed the manifest, and

for ensuring that electronic copies

bearing the appropriate electronic

signatures are distributed to all waste

handlers involved with the waste

shipment.

(7) Software-based features which

ensure that manifest data appear on

computer displays in a human readable

format (including field labels) which

waste handlers can readily verify before

they apply their electronic signatures,

and that at the time the system prompts

a user to sign a manifest electronically,

the signature prompt is accompanied by

the following warning notice, which

must be displayed clearly and

conspicuously on the system display:

WARNING: Your electronic signature, when

applied to this document, will constitute a

signature for all legal purposes. The

unauthorized use of an electronic signature,

or the making of false statements in

connection with an electronic signature, may

be subject to civil penalties under State and

Federal law, and to Federal criminal

penalties under RCRA 3008(d)(3). Where a

digital signature is used, only the person

named as the subscriber on the digital

certificate may apply the digital signature,

and the right to use the digital signature

cannot be delegated to another person. By

using a digital signature, you are certifying

that you have not compromised your private

key or any password associated with your

private key or signature device.

(8) Full interoperability of electronic

manifest system features throughout the

period that a manifest record resides on

a system or is exchanged among waste

handlers participating in an electronic

system. Full interoperability of system

features includes the ability to

consistently process and present the

required electronic manifest formats, the

ability to consistently and reliably route

manifests according to the softwarebased work flow and process controls,

the ability to consistently generate and

preserve audit trail data for each

manifest record created by or received

by the system, the ability to detect

records that appear to have been altered,

and the ability to consistently process

and validate electronic signatures. You

may exchange electronic manifests with

another person’s electronic system only

if the other system has been assessed

under paragraph (c)(1) of this section,

and validated as fully interoperable

with your system.

(9) Establishment of controls on

distribution of, access to, and use of

systems documentation that describes

how the system operates, how the

system components must be installed

and configured, how system security

features are implemented, or how the

system is maintained. These controls

extend as well to changes or revisions

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28305

to system documentation or operating

procedures.

(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.

(d) Third-party storage of manifest

records. (1) A generator’s electronic

manifest records may be stored by a

networking service, record archiving

service, or other commercial vendor of

electronic record storage services

provided that such records are

maintained in a system that complies

with the requirements of this section,

including the requirement for

reasonable inspector access to records

during the entire record retention

period, and the requirement for

validation of the third-party system’s

operation by a qualified, independent

information systems security

professional.

(2) A generator who uses a third-party

vendor of electronic record storage

services to meet their record retention

requirements remains responsible for

the proper performance of their record

retention requirements, including the

requirement to provide reasonable

inspector access to the records during

the entire record retention period.

(e) Receipt. An electronic manifest is

deemed to have been received by the

recipient when it is accessible to the

recipient in a format that can be read by

the recipient. If a recipient receives a

manifest record for which there is

evidence that the data has been

corrupted (e.g., garbled text, or hash

functions or checksums that do not

calculate correctly), the recipient must

request that the sender re-transmit a

corrected version of the record.

(f) Acknowledgment of receipt. When

an electronic manifest transmission is

received, the recipient must promptly

generate and transmit to the sender an

acknowledgment that confirms the

receipt of data that can be translated by

the recipient’s system.

(g) Date of receipt. The

acknowledgment generated by the

recipient to confirm the receipt of

translatable data will constitute

conclusive evidence of receipt of the

electronic manifest and will establish

the date of receipt. An electronic

transmission will not be considered

complete until the sender receives the

acknowledgment of receipt.

(h) Retransmission. If a positive

acknowledgment is not received within

12 hours of a transmission, then the

person who initiated the transmission

must promptly re-transmit the

electronic manifest.

(i) Inability to transmit. No person

will be excused from the requirement to

initiate or use a manifest because of a

foreseeable or unforeseeable system

failure that prevents the transmission of

a valid electronic manifest. If a person

is unable to initiate or transmit a valid

manifest electronically, it must use the

paper manifest required to be used in

accordance with § 262.20(a)(2) and

§ 263.20 of this chapter.

(j) Transmission log. Each generator

who operates an electronic manifest

system to transmit or receive electronic

manifests must maintain a transmission

log covering all electronic manifests

sent or received. This log must include

for each manifest transmission sent or

received, the date, time, and

destination/source. The transmission

log must also document who had access

to the generator’s sending or receiving

system during the creation,

transmission, or receipt of data. The

transmission log must be maintained

without modification and retained for

three years among the generator’s

manifest records, in accordance with

§ 262.40(a).

12. Subpart B is amended by adding

new § 262.27;

§ 262.27 Waste minimization certification.

A generator who initiates a shipment

of hazardous waste must certify to one

of the following statements in Item 16

of the uniform hazardous waste

manifest:

(a) ‘‘I am a large quantity generator. I

have a program in place to reduce the

volume and toxicity of waste generated

to the degree I have determined to be

economically practicable and I have

selected the practicable method of

treatment, storage, or disposal currently

available to me which minimizes the

present and future threat to human

health and the environment;’’ or

(b) ‘‘I am a small quantity generator.

I have made a good faith effort to

minimize my waste generation and

select the best waste management

method that is available to me and that

I can afford.’’

13. Section 262.32 is amended by

revising paragraph (b) to read as follows:

§ 262.32 Marking.

* * * * *

(b) Before transporting hazardous

waste or offering hazardous waste for

transportation off-site, a generator must

mark each container of 119 gallons or

less used in such transportation with

the following words and information in

accordance with the requirements of 49

CFR 172.304:

HAZARDOUS WASTE—Federal Law

Prohibits Improper Disposal. If found,

contact the nearest police or public safety

authority or the U.S. Environmental

Protection Agency.

Generator’s Name and Address llllll

Generator’s EPA Identification Number ll

Manifest Tracking Number llllllll

14. Section 262.33 is revised to read

as follows:

§ 262.33 Placarding.

Before transporting hazardous waste

or offering hazardous waste for

transportation off-site, a generator must

placard or offer the initial transporter

the appropriate placards according to

Department of Transportation

regulations for hazardous materials

under 49 CFR part 172, subpart F. If

placards are not required, a generator

must mark each motor vehicle according

to 49 CFR 171.3(b)(1).

15. Section 262.34 is amended by

adding new paragraph (j) to read as

follows.

§ 262.34 Accumulation time.

* * * * *

(j) A generator who sends a shipment

of hazardous waste to a designated

facility with the understanding that the

designated facility can accept and

manage the waste and then receives that

shipment back as a rejected load or

residue in accordance with the manifest

discrepancy provisions of § 264.72 or

§ 265.72 of this chapter may accumulate

the returned waste on-site in accordance

with paragraphs (a) and (b) or (d), (e)

and (f) of this section, depending on the

amount of hazardous waste on-site in

that calendar month, except that a small

quantity generator can never accumulate

more than 6,000 kg on site at any given

time.

Subpart E—Exports of Hazardous

Waste

16. Section 262.54 is amended by

revising paragraphs (c) and (e) to read as

follows:

§ 262.54 Special manifest requirements.

* * * * *

(c) In the International Shipments

block, the primary exporter must check

the export box and enter the point of

exit (city and State) from the United

States.

* * * * *

(e) The primary exporter may obtain

the manifest from any source that is

registered with the U.S. EPA as a

supplier of manifests (e.g., states, waste

handlers, and/or commercial forms

printers).

* * * * *

28306 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

Subpart F—Imports of Hazardous

Waste

17. Section 262.60 is amended by

revising paragraph (c) and by adding

paragraphs (d) and (e) to read as follows:

§ 262.60 Imports of hazardous waste.

* * * * *

(c) A person who imports hazardous

waste may obtain the manifest form

from any source that is registered with

the U.S. EPA as a supplier of manifests

(e.g., states, waste handlers, and/or

commercial forms printers).

(d) In the International Shipments

block, the importer must check the

import box and enter the point of entry

(city and State) into the United States.

(e) The importer must provide the

transporter with an additional copy of

the manifest for delivery to the U.S.

Customs official at the point the

hazardous waste enters the United

States in accordance with § 263.20(g)(4)

of this chapter.

18. The Appendix to Part 262 is

redesignated as appendix 1 to part 262

and revised to read as follows:

Appendix 1 to Part 262—Uniform

Hazardous Waste Manifest and Instructions

(EPA Forms 8700–22 and 8700–22A and

Their Instructions) U.S. EPA Form 8700–22

Read all instructions before completing

this form.

This form has been designed for use on a

12-pitch (elite) typewriter which is also

compatible with standard computer printers;

a firm point pen may also be used—press

down hard.

Federal regulations require generators and

transporters of hazardous waste and owners

or operators of hazardous waste treatment,

storage, and disposal facilities to complete

this form (8700–22) and, if necessary, the

continuation sheet (8700–22A) for both interand intrastate transportation of hazardous

waste.

The following statement must be included

with each Uniform Hazardous Waste

Manifest, either on the form, in the

instructions to the form, or accompanying the

form:

Public reporting burden for this collection

of information is estimated to average: 17

minutes for generators, 10 minutes for

transporters, and 16 minutes for owners or

operators of treatment, storage, and disposal

facilities. This includes time for reviewing

instructions, gathering data, completing and

reviewing the form, and transmitting the

form. Send comments regarding the burden

estimate, including suggestions for reducing

this burden, to: Chief, Information Policy

Branch (2136), U.S. Environmental

Protection Agency, Ariel Rios Building; 1200

Pennsylvania Ave., NW, Washington, D.C.

20460; and to the Office of Information and

Regulatory Affairs, Office of Management and

Budget, Washington, D.C. 20503.

Copies and Copy Distribution

Original forms, carbon copies, carbonless

copies, and photocopies of the manifest may

be used. All copies must be legible. The top

copy of the manifest must accompany the

waste in transportation.

Paper manifest must be printed according

to the following specifications:

• use the federal manifest format;

• register with EPA as a forms printer to

ensure that you adhere to federal printing

specifications and procedures subsequent to

the registration process;

• preprint an eleven digit alphanumeric

number (i.e., the three letter prefix followed

by eight digits) under Item Three of the

manifest as the Manifest Tracking Number.

• not add additional boxes to the form;

• not delete boxes from the form;

• print the form so that the manifest

dimensions are 81⁄2 × 11 inches;

• print the form in black ink so that it can

be photocopied or faxed;

• print the standardized instructions

outlined in 40 CFR part 262, appendix 1;

• follow the same copy naming structure

as outlined below in § 262.21(c)(3);

• print the state optional boxes so that

information in them is readable when the

form is photocopied or faxed; and

• printer must print a 6 copy form.

Copies of the manifest shall be distributed

as follows:

Page 1 (top copy): Designated facility to

consignment State (if required);

Page 2: Designated facility to generator

State (if required);

Page 3: Designated facility to generator;

Page 4: Designated facility retains

Page 5: Transporter retains; and

Page 6 (bottom copy): Generator to

generator State (if required).

BILLING CODE 6560–50–P

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28307

BILLING CODE 6560–50–C

28308 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

I. INSTRUCTIONS FOR GENERATORS

Item 1. Generator’s U.S. EPA Identification

Number

Enter the generator’s U.S. EPA twelve digit

identification number.

Item 2. Page 1 of ll

Enter the total number of pages used to

complete this Manifest (i.e., the first page

(EPA Form 8700–22) plus the number of

Continuation Sheets (EPA Form 8700–22A),

if any).

Item 3. Manifest Tracking Number

For paper manifests, this number must be

pre-printed on the manifest by the forms

printer.

Item 4. Generator’s Mailing Address and

Phone Number

Enter the name of the generator, the

address to which the manifest signed by the

designated facility should be mailed, and the

generator’s telephone number. Note, the

telephone number (including area code)

should be the number where the generator or

his authorized agent may be reached to

provide instructions in the event of an

emergency or if the designated and/or

alternate (if any) facility rejects some or all

of the shipment. The emergency response

phone number must:

1. be the number of the generator or the

number of an agency or organization who is

capable of and accepts responsibility for

providing detailed information about the

shipment;

2. reach a phone that is monitored 24 hours

a day at all times the waste is in

transportation (including transportation

related storage); and

3. must reach someone who is either

knowledgeable of the hazardous waste being

shipped and has comprehensive emergency

response and spill cleanup/incident

mitigation information for the material being

shipped or has immediate access to a person

who has that knowledge and information

about the shipment.

Item 5. Emergency Response Phone Number

Enter the number of the generator or the

number of a party responsible for providing

information about the shipment 24 hours a

day.

Item 6. Transporter 1 Company Name, and

U.S. EPA ID Number

Enter the company name and U.S. EPA ID

number of the first transporter who will

transport the waste.

Item 7. Transporter 2 Company Name, U.S.

EPA ID Number

If applicable, enter the company name and

U.S. EPA ID number of the second

transporter who will transport the waste.

Item 8. Transporter 3 Company Name, U.S.

EPA ID Number

If applicable, enter the company name and

U.S. EPA ID number of the third transporter

who will transport the waste.

If more than three transporters are needed,

use a Continuation Sheet(s) (EPA Form

8700—22A).

Item 9. Designated Facility Name, Site

Address, and U.S. EPA ID Number

Enter the company name and site address

of the facility designated to receive the waste

listed on this manifest and enter the U.S.

EPA twelve digit identification number of the

facility.

Item 10. U.S. DOT Description (Including

Proper Shipping Name, Hazard Class or

Division, Identification Number, and Packing

Group)

Enter the U.S. DOT Proper Shipping Name,

Hazard Class or Division, Identification

Number (UN/NA) and Packing Group for

each waste as identified in 49 CFR part 172.

Include technical name(s) and reportable

quantity references, if applicable. Any

additional waste codes may be entered in

Item 14 (special handling and additional

information block), or if necessary, in Item 32

on the Continuation Sheet (EPA Form 8700–

22A).

Note: If additional space is needed for

waste descriptions, enter these additional

descriptions in Item 28 on the Continuation

Sheet (EPA Form 8700–22A).

Item 11. Containers (Number and Type)

Enter the number of containers for each

waste and the appropriate abbreviation from

Table I (below) for the type of container.

Table I. Types of Containers

BA = Burlap, cloth, paper, or plastic bags

CF = Fiber or plastic boxes, cartons, cases

CM = Metal boxes, cartons, cases (including

roll-offs)

CW = Wooden boxes, cartons, cases

CY = Cylinders

DF = Fiberboard or plastic drums, barrels,

kegs

DM = Metal drums, barrels, kegs

DT = Dump truck

DW = Wooden drums, barrels, kegs

HG = Hopper or gondola cars

TC = Tank cars

TP = Portable tanks

TT = Cargo tanks (tank trucks)

Item 12. Total Quantity

Enter, in designated boxes, the total

quantity of waste. Round partial units to the

nearest whole unit; do not enter decimals or

fractions (unless appropriate for bulk

shipments).

Item 13. Units of Measure (Weight/Volume)

Enter, in designated boxes, the appropriate

abbreviation from Table II (below) for the

unit of measure.

Table II. Units of Measure

G = Gallons (liquids only)

K = Kilograms

L = Liters (liquids only)

M = Metric Tons (1000 kilograms)

N = Cubic Meters

P = Pounds

T = Tons (2000 pounds)

Y = Cubic Yards

Item 14. Special Handling Instructions and

Additional Information.

Note: This space may be used to record

other information relevant to the waste

shipment for which there is no specific space

on the Manifest. These items are: universal

waste shipments; additional waste codes;

alternate facility designation; name, address,

and phone number of any person other than

the person identified in Item 4 (Generator’s

Name, Mailing Address, and Phone Number)

preparing the manifest; and name, address,

phone number, and EPA identification

number of any person who shares generator

responsibilities (i.e., co-generators) with the

person identified in Item 4 (Generator’s

Name, Mailing Address, and Phone Number).

This space may be also used to indicate

special transportation; treatment, storage, or

disposal information; bill of lading

information, and/or the manifest tracking

number of the original manifest for rejected

loads and residues. If space is available, then

generators can use this space for information

relevant to their tracks. States may also

require additional waste description

associated with particular hazardous wastes

listed on the Manifest. States cannot require

information in this box other than

information such as chemical names,

constituent percentages, and physical state.

Item 15. Generator’s Statement and

Preparer’s Certification

The generator must read, sign, and date the

waste minimization certification statement.

In signing the waste minimization

certification statement, those generators who

have not been exempted by statute or

regulation from the duty to make a waste

minimization certification under section

3002(b) of RCRA are also certifying that they

have complied with the waste minimization

requirements.

Generators may preprint the words, ‘‘On

behalf of’’ in the signature block or may hand

write this statement in the signature block

prior to signing the generator certifications.

Note: For paper manifests, all of the above

information except the handwritten signature

required in item 15 may be pre-printed.

II. Instructions for International Shipment

Block

Item 16. International Shipments

For export shipments, the primary exporter

must check the export box, and enter the

point of exit (city and state) from the United

States. For import shipments, the importer

must check the import box and enter the

point of entry (city and state) into the United

States. For exports, the transporter must sign

and date the manifest to indicate the day the

shipment left the United States. Transporters

of hazardous waste shipments must deliver a

copy of the manifest to the U.S. Customs

when importing or exporting the waste across

U.S. borders.

III. Instructions for Transporters

Item 17. Transporter 1 Acknowledgment of

Receipt

Enter the name of the person accepting the

waste on behalf of the first transporter. That

person must acknowledge acceptance of the

waste described on the Manifest by signing

and entering the date of receipt. Only one

signature per transportation company is

required.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28309

Item 18. Transporter 2 Acknowledgment of

Receipt

If applicable, enter the name of the person

accepting the waste on behalf of the second

transporter. That person must acknowledge

acceptance of the waste described on the

Manifest by signing and entering the date of

receipt.

Item 19. Transporter 3 Acknowledgment of

Receipt

If applicable, enter the name of the person

accepting the waste on behalf of the third

transporter. That person must acknowledge

acceptance of the waste described on the

Manifest by signing and entering the date of

receipt.

Note: Transporters carrying imports or

exports of hazardous waste may also have

responsibilities to enter information in the

International Shipments Block. See above

instructions for Item 16.

IV. Instructions for Owners and Operators of

Treatment, Storage, and Disposal Facilities

Item 20. Discrepancy Indication Space

The authorized representative of the

designated (or alternate) facility’s owner or

operator must note in this space any

discrepancies between the waste described

on the Manifest and the waste actually

received at the facility. Manifest

discrepancies are: significant differences (as

defined by § § 264.72(b) and 265.72(b))

between the quantity or type of hazardous

waste designated on the manifest or shipping

paper, and the quantity and type of

hazardous waste a facility actually receives;

rejected wastes, which may be a full or

partial shipment of hazardous waste that the

TSDF cannot accept; or container residues,

which are residues that exceed the quantity

limits for ‘‘empty’’ containers set forth in 40

CFR 261.7(b).

For rejected loads and residues (40 CFR

264.72(d), (e), and (f), or 40 CFR 265.72(d),

(e), or (f)), check the appropriate box if the

shipment is a rejected load (i.e., rejected by

the designated and/or alternate facility and is

sent to an alternate facility or returned to the

generator) or a regulated residue that cannot

be removed from a container. Enter the

reason for the rejection or the inability to

remove the residue and a description of the

waste. Also, reference the manifest tracking

number for the new manifest being used to

track the rejected waste or residue shipment

on the original manifest. Indicate the original

manifest tracking number in Item 14, the

Special Handling Block of the new manifest.

Owners or operators of facilities located in

unauthorized States (i.e., states in which the

U.S. EPA administers the hazardous waste

management program) who cannot resolve

significant differences in quantity or type

within 15 days of receiving the waste must

submit to their Regional Administrator (see

list below) a letter with a copy of the

Manifest at issue describing the discrepancy

and attempts to reconcile it (40 CFR 264.72(c)

and 265.72(c)).

Owners or operators of facilities located in

authorized States (i.e., those States that have

received authorization from the U.S. EPA to

administer the hazardous waste management

program) should contact their State agency

for information on State Discrepancy Report

requirements.

EPA Regional Administrators

Regional Administrator, U.S. EPA Region I,

John F. Kennedy Federal Building, One

Congress St., Boston, MA 02203

Regional Administrator, U.S. EPA Region II,

Jacob K. Javits Federal Building, 26 Federal

Pl., New York, NY 10278

Regional Administrator, U.S. EPA Region III,

841 Chestnut Building, Philadelphia, PA

19107

Regional Administrator, U.S. EPA Region IV,

345 Courtland St, NE, Atlanta, GA 30365

Regional Administrator, U.S. EPA Region V,

77 W. Jackson Blvd., Chicago, IL 60604–

3507

Regional Administrator, U.S. EPA Region VI,

First Interstate Bank Tower at Fountain

Place, 1445 Ross Ave, 12th Floor, Suite

1200, Dallas, TX 75202–2733

Regional Administrator, U.S. EPA Region VII,

726 Minnesota Ave., Kansas City, KS

66101

Regional Administrator, U.S. EPA Region

VIII, 999 18th St., Suite 500, Denver, CO

80202–2405

Regional Administrator, U.S. EPA Region IX,

75 Hawthorne St., San Francisco, CA

94105

Regional Administrator, U.S. EPA Region X,

1200 Sixth Ave., Seattle, WA 98101

Item 21. Facility Owner or Operator

Certification of Receipt (Except As Noted in

Item 20)

Enter the name of the person accepting the

waste on behalf of the owner or operator of

the facility. That person must acknowledge

receipt or rejection of the waste described on

the Manifest by signing and entering the date

of receipt or rejection where indicated. Since

the Facility Certification acknowledges

receipt of the waste except as noted in the

Discrepancy Space in Item 20, the

certification should be signed for both waste

receipt and waste rejection, with the rejection

being explained in the space in Item 20.

Optional State Information

Blocks A and B are not required by Federal

regulations for intra- or interstate

transportation. However, States may require

generators and owners or operators of

treatment, storage, or disposal facilities to

complete some or all of Blocks A or B as part

of State manifest reporting requirements.

Generators and owners and operators of

treatment, storage, or disposal facilities

should contact State officials to determine

whether they must enter information in

blocks A and B.

Block A—Waste Codes

Enter up to 3 Federal waste codes in the

top part of Block A for wastes described in

Item 10. Enter the federal waste codes in

accordance with the following hierarchy: all

acutely hazardous wastes, including all P

listed wastes and all acutely hazardous F

listed wastes; all U listed wastes (toxic); all

K listed wastes (specific sources); all nonacute F listed wastes (non-specific sources);

and all D wastes (characteristic). The use of

this hierarchy is required except for ignitable

or reactive wastes, which may be better

described (for safety reasons) if the waste

codes for these characteristics are listed first.

The bottom half of Block A is reserved for

entering up to three state-specific waste

codes. In general, the first state waste code

listed should be the generator state waste

code (if applicable) and the second state

waste code listed should be the destination

state waste code (if applicable).

If additional federal or state waste codes

need to be reported, the generator should use

Item 14 ‘‘Special Handling Instructions and

Additional Information.’’

Block B—Biennial Report System Type

Codes

Enter the most appropriate Biennial Report

system type code for each waste listed in

Item 10. The system type code is to be

entered by the first treatment, storage, or

disposal facility (TSDF) that receives the

waste and is the code that best describes the

way in which the waste is managed when

shipped to the TSDF. The full list of the

Biennial Report system type codes can be

found in the electronic and hard copy

versions of 40 CFR Part 262 Appendix 2-

Biennial Report system type codes (full list

of the system type codes) and in the

instructions for completing the Biennial

Report.

19. Add a new appendix 2 to part 262

to read as follows:

Appendix 2 to Part 262—Biennial Report

System Type Codes for Block B of the

Uniform Hazardous Waste Manifest

Shown below is the full list of Biennial

Report system type codes found in the 1999

Hazardous Waste Report Instructions and

Forms. These codes are to be used by the

designated facility in completing Block B of

the hazardous waste manifest where an

authorized state required it. Any changes

made to those codes during subsequent

Biennial Report periods will be automatically

adopted.

List of System Type Codes

Metals Recovery (for Reuse)

M011 High temperature metals recovery

M012 Retorting

M013 Secondary smelting

M014 Other metals recovery for reuse: e.g.,

ion exchange, reverse osmosis, acid

leaching

M019 Metals recovery—type unknown

Solvents Recovery

M021 Fractionation/distillation

M022 Thin film evaporation

M023 Solvent extraction

M024 Other solvent recovery

M029 Solvents recovery—type unknown

Other Recovery

M031 Acid regeneration

M032 Other recovery: e.g., waste oil

recovery, nonsolvent organics recovery

M039 Other recovery—type unknown

Incineration Treatment

M041 Incineration—liquids

M042 Incineration—sludges

M043 Incineration—solids

28310 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

M044 Incineration—gases

M049 Incineration—type unknown

Energy Recovery (Reuse as Fuel)

M051 Energy recovery—liquids

M052 Energy recovery—sludges

M053 Energy recovery—solids

M059 Energy recovery—type unknown

Fuel Blending

M061 Fuel blending

Aqueous Inorganic Treatment

M071 Chrome reduction followed by

chemical precipitation

M072 Cyanide destruction followed by

chemical precipitation

M073 Cyanide destruction only

M074 Chemical oxidation followed by

chemical precipitation

M075 Chemical oxidation only

M076 Wet air oxidation

M077 Chemical precipitation

M078 Other aqueous inorganic treatment:

e.g., ion exchange, reverse osmosis

M079 Aqueous inorganic treatment—type

unknown

Aqueous Organic Treatment

M081 Biological treatment

M082 Carbon adsorption

M083 Air/steam stripping

M084 Wet air oxidation

M085 Other aqueous organic treatment

M089 Aqueous organic treatment—type

unknown

Aqueous Organic and Inorganic Treatment

M091 Chemical precipitation in

combination with biological treatment

M092 Chemical precipitation in

combination with carbon adsorption

M093 Wet air oxidation

M094 Other organic/inorganic treatment

M099 Aqueous organic and inorganic

treatment—type unknown

Sludge Treatment

M101 Sludge dewatering

M102 Addition of excess lime

M103 Absorption/adsorption

M104 Solvent extraction

M109 Sludge treatment—type unknown

Stabilization

M111 Stabilization/chemical fixation using

cementitious and/or pozzolanic

materials

M112 Other stabilization

M119 Stabilization—type unknown

Other Treatment

M121 Neutralization only

M122 Evaporation only

M123 Settling/clarification only

M124 Phase separation (e.g., emulsion

breaking, filtration) only

M125 Other treatment

M129 Other treatment—type unknown

Disposal

M131 Land treatment/application/farming

M132 Landfill

M133 Surface impoundment (to be closed

as a landfill)

M134 Deepwell/underground injection

M135 Direct discharge to sewer/POTW

M136 Direct discharge to surface water

under NPDES

M137 Other disposal

Transfer Facility Storage

M141 Transfer facility storage—waste was

shipped off site without any on-site

treatment, disposal, or recycling activity

PART 263—STANDARDS APPLICABLE

TO TRANSPORTERS OF HAZARDOUS

WASTE

20. The authority citation for part 263

is revised to read as follows:

Authority: 42 U.S.C. 6906, 6912, 6922–

6925, 6937, and 6938.

21–23. Section 263.20 is amended by

revising paragraphs (a) through (g) and

adding paragraph (i) to read as follows:

§ 263.20 The manifest system.

(a)(1) Manifest Requirement. A

transporter may not accept hazardous

waste from a generator unless the

transporter is also provided with a

manifest signed in accordance with the

requirements of § 262.23, or, for

electronic manifests, the requirements

of 40 CFR 262.24 and 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 as provided in 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 shipments using an

electronic manifest or 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.

(b)(1) Transporter signature

requirement when paper manifest

supplied. Before transporting the

hazardous waste, the transporter must

sign by hand and date the manifest

acknowledging acceptance of the

hazardous waste from the generator.

Before leaving the generator’s property,

the transporter must return a signed

paper copy of the manifest to the

generator.

(2) Transporter signature requirement

when electronic manifest supplied.—(i)

Transporters participating in electronic

manifest systems. Before transporting

the hazardous waste, a transporter

participating with the generator in an

electronic manifest system must sign

electronically and date the manifest

acknowledging acceptance of the

hazardous waste from the generator,

using an electronic signature in

accordance with the provisions of

§ 262.25 of this chapter. Before leaving

the generator’s property, the transporter

must return a signed electronic copy of

the manifest to the generator.

(ii) Transporters unable to participate

in electronic systems. If the generator

participates in an electronic manifest

system, but the transporter is not able to

accept or sign electronic manifests, then

the transporter must acknowledge

acceptance of the hazardous waste from

the generator by signing by-hand and

dating a paper copy of the manifest or

other shipping paper under 49 CFR part

172, subpart C. Before leaving the

generator’s property, the transporter

must return a copy of this signed

manifest or other shipping paper to the

generator.

(iii) Transporter signing electronic

manifest on behalf of generator. If a

transporter acts as an authorized

preparer of a generator’s manifest and

signs the generator’s certification on

behalf of the generator as provided

under § 262.24(b) of this chapter, the

transporter must, before transporting the

hazardous waste, sign electronically and

date the manifest acknowledging

acceptance of the hazardous waste from

the generator. The transporter must

return a signed electronic copy to the

generator before leaving the generator’s

property. If the generator is not able to

accept an electronic copy from the

transporter, the transporter must

provide the generator with a signed

paper copy of the manifest or other

shipping paper, with a notation in the

generator’s certification block indicating

that the manifest was signed

electronically on behalf of the generator.

(c)(1) For shipments tracked with a

paper manifest, the transporter must

ensure that the manifest accompanies

the hazardous waste shipment and is

readily available to, and recognized by,

authorities in the event of accident or

inspection.

(2) For shipments tracked with an

electronic manifest, the transporter must

ensure that the electronic manifest is

transmitted to the next transporter or to

the designated facility prior to or at the

time of the delivery of the shipment. In

addition, the transporter must ensure

that a paper copy of the manifest or

other shipping paper as defined under

49 CFR part 172, subpart C accompanies

the shipment, and is readily available

to, and recognized by, authorities in the

event of inspection or accident.

(3) In the case of exports, the

transporter must ensure that a copy of

the EPA Acknowledgment of Consent

also accompanies the waste.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28311

(d)(1) Transporter delivery of waste

for shipments covered by paper

manifest. A transporter who delivers a

hazardous waste covered by a paper

manifest to another transporter or to the

designated facility must:

(i) Obtain the date of delivery and the

handwritten signature of that

transporter or of the owner or operator

of the designated facility on the

manifest;

(ii) Retain one copy of the manifest in

accordance with § 263.22; and

(iii) Give the remaining paper copies

of the manifest to the accepting

transporter or designated facility.

(2) Transporter delivery of waste for

shipments covered by electronic

manifest. A transporter who delivers a

hazardous waste covered by an

electronic manifest to another

transporter or to the designated facility

must:

(i) If the delivering transporter

participates in the electronic manifest

system:

(A) Obtain the date of delivery and

the electronic signature of that

transporter or of the owner or operator

of the designated facility on the

manifest;

(B) Retain an electronic copy of the

manifest in accordance with § 263.22;

and

(C) Transmit the electronic manifest

to the accepting transporter or

designated facility.

(ii) If the delivering transporter does

not participate in the electronic system

on which the manifest has been

transmitted to the accepting transporter

or designated facility:

(A) Obtain the date of delivery and

the handwritten signature of the

accepting transporter or the owner or

operator of the designated facility, on a

paper copy of the manifest or other

shipping paper under 49 CFR part 272,

subpart C, and which bears the manifest

tracking number assigned to the

shipment by the electronic system; and

(B) Retain this signed copy of the

manifest or other shipping paper in

accordance with § 263.22.

(e) For shipments involving water

(bulk shipment) transportation, the

requirements of paragraphs (c), (d), and

(f) of this section do not apply if:

(1) The hazardous waste is delivered

by water (bulk shipment) to the

designated facility;

(2) A shipping paper containing all

the information required on the

manifest (excluding the EPA

Identification numbers, generator

certification, and signatures) and, for

exports, and EPA Acknowledgment of

Consent accompanies the hazardous

waste;

(3) The person delivering the

hazardous waste to the initial water

(bulk shipment) transporter obtains the

date of delivery and signature of the

water (bulk shipment) transporter on a

paper or electronic manifest and

forwards it to the designated facility;

(4) The delivering water transporter

obtains the date of delivery and

handwritten signature of the owner or

operator of the designated facility on

either a paper copy of the manifest or

on the shipping paper; and

(5) A copy of the shipping paper or

manifest is retained by each water (bulk

shipment) transporter in accordance

with § 263.22.

(f) For shipments involving rail

transportation, the requirements of

paragraphs (c), (d), and (e) of this

section do not apply, and the following

requirements do apply:

(1) When accepting hazardous waste

from a non-rail transporter, the initial

rail transporter must:

(i) Sign (by-hand or with an electronic

signature) and date the manifest

acknowledging acceptance of the

hazardous waste;

(ii) Return or transmit a signed copy

of the manifest to the non-rail

transporter;

(iii) Forward at least three paper

copies or an electronic copy of the

manifest to:

(A) The next non-rail transporter, if

any; or

(B) The designated facility, if the

shipment is delivered to that facility by

rail; or

(C) The last rail transporter designated

to handle the waste in the United States;

and

(iv) Retain one copy of the manifest

and rail shipping paper in accordance

with § 263.22.

(2) Rail transporters must ensure that

a shipping paper containing all the

information required on the manifest

(excluding the EPA identification

numbers, generator certification, and

signatures) and, for exports, an EPA

acknowledgment of Consent

accompanies the hazardous waste at all

times.

(3)(i) When delivering hazardous

waste covered by a paper manifest to the

designated facility, a rail transporter

must:

(A) Obtain the date of delivery and

the handwritten signature of the owner

or operator of the designated facility on

the manifest, or a handwritten signature

on the shipping paper (if the manifest

has not been received by the facility);

and

(B) Retain a copy of the manifest or

signed shipping paper in accordance

with § 263.22.

(ii) When delivering hazardous waste

covered by an electronic manifest to the

designated facility, a rail transporter

participating in the electronic manifest

system must:

(A) Obtain the date of delivery and

the electronic signature of the owner or

operator of the designated facility on the

manifest; and

(B) Retain an electronic copy of the

signed manifest in accordance with

§ 263.22.

(iii) When delivering hazardous waste

covered by an electronic manifest to the

designated facility, a rail transporter not

participating in the electronic manifest

system must:

(A) Obtain the date of delivery and

handwritten signature of the owner or

operator of the designated facility on a

paper copy of the manifest or shipping

paper, which must bear the manifest

tracking number assigned to the

shipment by the electronic system; and

(B) Retain a copy of the signed

manifest or shipping paper in

accordance with § 263.22.

(4)(i) When delivering hazardous

waste covered by a paper manifest to a

non-rail transporter, a rail transporter

must:

(A) Obtain the date of delivery and

the handwritten signature of the next

non-rail transporter on the manifest; and

(B) Retain a paper copy of the

manifest in accordance with § 263.22.

(ii) When delivering hazardous waste

covered by an electronic manifest to a

non-rail transporter, a rail transporter

participating in the electronic manifest

system must:

(A) Obtain the date of delivery and

the electronic signature of the next nonrail transporter on the electronic

manifest; and

(B) Retain an electronic copy of the

signed manifest in accordance with

§ 263.22.

(iii) When delivering hazardous waste

covered by an electronic manifest to a

non-rail transporter, a rail transporter

not participating in the electronic

manifest system must:

(A) Obtain the date of delivery and

handwritten signature of the next nonrail transporter on a paper copy of the

manifest or shipping paper, which must

bear the manifest tracking number

assigned to the shipment by the

electronic system; and

(B) Retain a copy of the signed

manifest or shipping paper in

accordance with § 263.22.

(5) Before accepting hazardous waste

from a rail transporter, a non-rail

transporter must sign (by hand or with

an electronic signature) and date the

manifest and provide a copy to the rail

transporter.

28312 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

(g) Transporters who transport

hazardous waste out of the United

States must:

(1) Sign and date the manifest in the

International Shipments block to

indicate the date that the shipment left

the United States;

(2) Retain one copy in accordance

with § 263.22(d);

(3) Return a signed copy of the

manifest to the generator; and

(4) Give a copy of the manifest to a

U.S. Customs official at the point of

departure from the United States.

* * * * *

(i) Transporters who transport

hazardous waste into the United States

must give a copy of the manifest to a

U.S. Customs official at the point of

entry into the United States.

24. Section 263.21 is amended by

revising paragraph (b) to read as follows:

§ 263.21 Compliance with the manifest.

* * * * *

(b)(1) If the hazardous waste cannot

be delivered in accordance with

paragraph (a) of this section because of

an emergency condition other than

rejection of the waste by the designated

facility, then the transporter must

contact the generator for further

directions and must revise the manifest

according to the generator’s

instructions.

(2) If hazardous waste is rejected by

the designated facility listed on the

manifest while the transporter is there,

then the transporter must obtain the

date of rejection and signature of the

owner or operator of the designated

facility on the manifest, retain one copy

of the manifest in accordance with

§ 263.22, and give the remaining copies

of the manifest to the rejecting

designated facility. When the

transporter is taking back a full or

partial shipment, that load must be

accompanied by a new manifest.

25. Section 263.22 is amended by

revising paragraph (a), and by adding

new paragraphs (f) and (g) to read as

follows:

§ 263.22 Recordkeeping.

(a)(1) A transporter of hazardous

waste must keep a copy of each paper

or electronic manifest signed by the

generator, himself, and the next

designated transporter or the owner or

operator of the designated facility for a

period of three years from the date the

hazardous waste was accepted by the

initial transporter.

(2) For shipments covered by an

electronic manifest, if a provision of this

subpart authorizes a transporter to

obtain, in lieu of a signed electronic

copy of the manifest, a hand-signed

paper copy of the manifest or other

shipping paper under 49 CFR part 172,

subpart C, the transporter must keep a

copy of each such manifest or shipping

paper for a period of three years from

the date the hazardous waste was

accepted by the initial transporter.

* * * * *

(f) Transmission log. Each transporter

who operates an electronic manifest

system and transmits or receives

electronic manifests must maintain a

transmission log covering all electronic

manifests sent or received. This log

must include for each manifest

transmission sent or received, the date,

time, and destination/source. The

transmission log must also document

who had access to the transporter’s

sending or receiving system during the

creation, transmission, or receipt of

data. The transmission log covering

each calendar year’s transmissions must

be maintained without modification and

retained with the transporter’s manifest

records for a period of three years from

their creation.

(g) Third-party storage of electronic

manifest records. (1) Electronic manifest

records may be stored by a networking

service, record archiving service, or

other commercial vendor of electronic

record storage services provided that

such records are maintained in a system

that complies with the requirements of

§ 262.26 of this chapter, including the

requirement for reasonable inspector

access to records during their retention

period, and the requirement for

validation of the third-party system’s

operation by a qualified, independent

information systems security

professional.

(2) A transporter who uses a thirdparty vendor of electronic record storage

services to meet their record retention

requirements remains responsible for

the proper performance of their record

retention requirements, including the

requirement to provide reasonable

inspector access during the entire record

retention period.

26. Subpart B is amended by adding

new § 263.23 to read as follows:

§ 263.23 Electronic manifest systems.

(a) If a transporter of hazardous waste

participates in an electronic manifest

system, the electronic system used by

the transporter to originate, use, sign,

transmit, or store electronic manifests

shall be designed and operated in

accordance with the electronic format

standards described in 40 CFR

262.20(a)(3), the electronic signature

standards in 40 CFR 262.25, and the

system controls and computer security

requirements described in 40 CFR

262.26.

(b) Except where a provision of this

part specifically requires a paper copy

of a manifest or a handwritten signature,

manifest copies which are electronically

signed in accordance with 40 CFR

262.25 and which are originated,

transmitted, or maintained by electronic

systems that comply with paragraph (a)

of this section, will be considered the

legal equivalent to paper manifest

copies bearing handwritten signatures.

(c) All computer systems (hardware

and software), controls, and related

documentation maintained under this

section, shall be readily available for,

and subject to inspection by any EPA or

authorized state inspector.

(d) Receipt. An electronic manifest is

deemed to have been properly received

by the recipient when it is accessible to

the recipient in a format that can be read

by the recipient. If a recipient receives

a manifest record for which there is

evidence that the data has been

corrupted (e.g., garbled text, or hash

functions or checksums that do not

calculate correctly), the recipient must

request that the sender re-transmit a

corrected version of the record.

(e) Acknowledgment of receipt. When

an electronic manifest transmission is

received, the recipient must promptly

generate and transmit to the sender an

acknowledgment that confirms the

receipt of data that can be translated by

the recipient’s system.

(f) Date of receipt. The

acknowledgment generated by the

recipient to confirm the receipt of

translatable data will constitute

conclusive evidence of receipt of the

electronic manifest and will establish

the date of receipt. An electronic

transmission will not be considered

complete until the sender receives the

acknowledgment of receipt.

(g) Retransmission. If a positive

acknowledgment is not received within

12 hours of a transmission, then the

person who initiated the transmission

must promptly re-transmit the

electronic manifest.

(h) Inability to transmit. No person

will be excused from the requirement to

initiate or use a manifest because of a

foreseeable or unforeseeable system

failure that prevents the transmission of

a valid electronic manifest. If a person

is unable to initiate or transmit a valid

manifest electronically, it must use the

paper manifest required to be used in

accordance with 40 CFR 262.20(a)(2)

and 40 CFR 263.20.

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28313

PART 264—STANDARDS FOR

OWNERS AND OPERATORS OF

HAZARDOUS WASTE TREATMENT,

STORAGE, AND DISPOSAL

FACILITIES

27. 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

28–29. Section 264.71 is amended by

revising paragraphs (a) and (b)(4) and

adding paragraph (e) to read as follows:

§ 264.71 Use of manifest system.

(a)(1) If a facility receives hazardous

waste with a manifest, the owner or

operator, or his agent, must sign and

date the manifest, as indicated in

paragraphs (a)(2), (3), or (4) of this

section to certify that the hazardous

waste covered by the manifest was

received, that the hazardous waste was

received except as noted in the

discrepancy space of the manifest, or

that the hazardous waste was fully

rejected as noted in the manifest

discrepancy space.

(2) If a facility receives a hazardous

waste shipment accompanied by a paper

manifest, the owner or operator, or his

agent must:

(i) Sign and date, by hand, each copy

of the manifest;

(ii) Note any discrepancies (as defined

in § 264.72(a)) on each copy of the

manifest;

(iii) Immediately give the transporter

at least one paper copy of the manifest;

(iv) Within 30 days of delivery, send

a copy of the paper manifest to the

generator; and

(v) Retain at the facility a paper copy

of each manifest for at least three years

from the date of delivery.

(3) If a facility receives a hazardous

waste shipment covered by an

electronic manifest, and the generator,

transporter, and facility all participate

in the electronic manifest system, the

owner or operator, or his agent, must:

(i) Electronically sign and date the

manifest, using an electronic signature

in accordance with the provisions of 40

CFR 262.25, to certify that the

hazardous waste covered by the

manifest was received;

(ii) Note any discrepancies (as defined

in § 264.72(a)) on the electronic

manifest;

(iii) Immediately provide the

transporter with one electronic copy of

the signed manifest;

(iv) Immediately send an electronic

copy of the signed manifest to the

generator; and

(v) Retain at the facility an electronic

copy of each manifest for at least three

years from the date of delivery.

(4) If an owner or operator

participates with a generator in an

electronic manifest system, but receives

a hazardous waste shipment from a

transporter that does not participate in

the electronic system, the owner or

operator must:

(i) Hand-sign and date a paper copy

of the manifest (or other shipping paper

under 49 CFR part 172, subpart C)

provided by the delivering transporter,

and immediately give the transporter

the copy of the hand-signed manifest or

shipping paper;

(ii) Electronically sign (using an

electronic signature in accordance with

§ 262.25) and date the electronic

manifest covering the shipment that was

forwarded to the facility by the

generator, to certify that the hazardous

waste covered by the manifest was

received;

(iii) Note any significant

discrepancies in the manifest (as

defined in § 264.72(a)) on the electronic

manifest;

(iv) Immediately return the

electronically signed electronic copy of

the manifest to the generator; and

(v) Retain at the facility an electronic

copy the manifest for at least three years

from the date of delivery.

(b) * * *

(4) Within 30 days after the delivery,

send a copy of the signed and dated

manifest or shipping paper (if the

manifest has not been received within

30 days after delivery) to the generator.

However, if the generator and the

facility participate in an electronic

manifest system, the owner or operator,

or his agent, shall electronically sign

and date (and note any discrepancies)

the electronic manifest provided by the

generator, and immediately send the

signed electronic copy to the generator

in lieu of a paper copy.

* * * * *

(e) A facility must contact the

consignment state to determine whether

that state requires facilities to enter

optional state information on the

manifest. Facilities must also contact

the consignment state to determine

whether they are required to submit a

copy of the manifest to the state.

30. Section 264.72 is revised to read

as follows:

§ 264.72 Manifest discrepancies.

(a) Manifest discrepancies are:

Significant differences (as defined by

paragraph (b) of this section) between

the quantity or type of hazardous waste

designated on the manifest or shipping

paper, and the quantity and type of

hazardous waste a facility actually

receives; Rejected wastes, which may be

a full or partial shipment of hazardous

waste that the TSDF cannot accept; or

Container residues, which are residues

that exceed the quantity limits for

‘‘empty’’ containers set forth in 40 CFR

261.7(b).

(b) Significant differences in quantity

are: For bulk waste, variations greater

than 10 percent in weight; and for batch

waste, any variation in piece count,

such as a discrepancy of one drum in a

truckload. Significant differences in

type are obvious differences which can

be discovered by inspection or waste

analysis, such as waste solvent

substituted for waste acid, or toxic

constituents not reported on the

manifest or shipping paper.

(c) Upon discovering a significant

difference in quantity or type, the owner

or operator must attempt to reconcile

the discrepancy with the waste

generator or transporter (e.g., with

telephone conversations). If the

discrepancy is not resolved within 15

days after receiving the waste, the

owner or operator must immediately

submit to the Regional Administrator a

letter describing the discrepancy and

attempts to reconcile it, and a copy of

the manifest or shipping paper at issue.

(d)(1) Upon rejecting waste or

identifying a container residue that

exceeds the quantity limits for ‘‘empty’’

containers set forth in 40 CFR 261.7(b),

the facility must contact the generator to

obtain the generator’s instructions for

forwarding the waste to another facility

that can manage the waste. The facility

must send the waste according to the

generator’s instructions. If it is

impossible to locate in a timely manner

an alternative facility that can promptly

receive the waste, the facility may, with

permission of the generator, return the

rejected waste or residue to the

generator.

(2) While the facility is making

arrangements for forwarding rejected

wastes or residues to another facility

under this section, it must ensure that

either the delivering transporter retains

custody of the waste, or, the facility

must provide for secure, temporary

custody of the waste pending delivery of

the waste to the first transporter

designated on the new manifest

prepared under paragraph (e) or (f) of

this section.

(e) For rejected loads and residues

that are to be sent off-site to an alternate

facility, the facility is required to

prepare a new manifest in accordance

with § 262.20(a) of this chapter and the

following instructions:

(1) Write the generator’s name,

address and U.S. EPA ID number in the

28314 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

generator’s name and mailing address

box (Items 1 and 4) of a new manifest.

(2) Write the name of the alternate

designated facility and the facility’s U.S.

EPA ID number in the designated

facility block (Item 9) of a new manifest.

(3) Copy the manifest tracking number

found in Block A or Item 3 of the old

manifest to the Special Handling and

Additional Information Block of the

new manifest, and indicate that the

shipment is a residue or rejected waste

from the previous shipment,

(4) Copy the manifest tracking number

found in Item 3 of the new manifest to

the manifest reference number line in

the Discrepancy Block of the old

manifest (Item 20) of this chapter.

(5) Write the DOT description for the

rejected load or the residue in the Item

10 (U.S. DOT Description) of the new

manifest and write the container types,

quantity, and volume(s) of waste.

(6) Sign the Generator’s Certification

to certify, as the offeror of the shipment,

that the waste has been properly

packaged, marked and labeled and is in

proper condition for transportation.

(f) For rejected wastes and residues

that must be sent back to the generator,

the facility is required to prepare a new

manifest in accordance with § 262.20(a)

of this chapter and the following

instructions:

(1) Write the facility’s name, address

and U.S. EPA ID number in the

generator’s name and mailing address

box (Items 1 and 4) of a new manifest.

(2) Write the name of the initial

generator and the generator’s U.S. EPA

ID number in the designated facility

block (Item 9) of the new manifest.

(3) Copy the manifest tracking number

found in Block A or Item 3 of the old

manifest to the Special Handling and

Additional Information Block of the

new manifest, and indicate that the

shipment is a residue or rejected waste

from the previous shipment,

(4) Copy the manifest tracking number

found in Item 3 of the new manifest to

the manifest reference number line in

the Discrepancy Block of the old

manifest (Item 20),

(5) Write the DOT description for the

rejected load or the residue in the Item

10 (U.S. DOT Description) of the new

manifest and write the container types,

quantity, and volume(s) of waste.

(6) Sign the Generator’s Certification

to certify, as offeror of the shipment,

that the waste has been properly

packaged, marked and labeled and is in

proper condition for transportation,

(g) If a facility rejects a waste or

identifies a container residue that

exceeds the quantity limits for ‘‘empty’’

containers set forth in 40 CFR 261.7(b)

after it has already signed a manifest or

shipping paper to certify to the receipt

of the materials under 40 CFR 264.71(a)

or (b), the facility must amend its copy

of the manifest to indicate the rejected

wastes or residues in the discrepancy

space of the amended manifest. The

facility must also copy the manifest

tracking number from Item 3 of the new

manifest to the discrepancy space of the

amended manifest, and must re-sign and

date the manifest to certify to the

information as amended. The facility

must retain the amended manifest for at

least three years from the date of

amendment, and must within 30 days,

send a copy of the amended manifest to

the delivering transporter and to the

generator.

31. Section 264.76 is revised to read

as follows:

§ 264.76 Unmanifested waste report.

(a) If a facility accepts for treatment,

storage, or disposal any hazardous waste

from an off-site source without an

accompanying manifest, or without an

accompanying shipping paper as

described by § 263.20(e) of this chapter,

and if the waste is not excluded from

the manifest requirement by this

chapter, then the owner or operator

must prepare and submit a letter to the

Regional Administrator within fifteen

days after receiving the waste. The

unmanifested waste report must contain

the following information:

(1) The EPA identification number,

name and address of the facility;

(2) The date the facility received the

waste;

(3) The EPA identification number,

name and address of the generator and

the transporter, if available;

(4) A description and the quantity of

each unmanifested hazardous waste the

facility received;

(5) The method of treatment, storage,

or disposal for each hazardous waste;

(6) The certification signed by the

owner or operator of the facility or his

authorized representative; and

(7) A brief explanation of why the

waste was unmanifested, if known.

(b) [Reserved]

32. Subpart E is amended by adding

new § 264.78 to read as follows:

§ 264.78 Electronic manifest systems.

(a) If an owner or operator of a facility

that treats, stores, or disposes of

hazardous waste participates in an

electronic manifest system, the

electronic system used by the owner or

operator to originate, use, sign, transmit,

or store electronic manifests must be

designed and operated in accordance

with the electronic format standards

described in 40 CFR 262.20(a)(3), the

electronic signature standards in 40 CFR

262.25, and the system controls and

computer security requirements

described in 40 CFR 262.26.

(b) Except where a provision of this

part specifically requires a paper copy

of a manifest or a handwritten signature,

manifest copies which are electronically

signed in accordance with the

provisions on electronic manifest

signatures in 40 CFR 262.25, and which

are originated, transmitted, or

maintained by electronic systems that

comply with paragraph (a) of this

section, will be considered the legal

equivalent to paper manifest copies

bearing handwritten signatures.

(c) Electronic manifest copies as well

as any computer systems (hardware and

software), controls, and related

documentation maintained under this

section, must be readily available for,

and subject to inspection by any EPA or

authorized state inspector.

(d) Transmission log. An owner or

operator of a facility which transmits or

receives electronic manifests must

maintain a transmission log covering all

electronic manifests sent or received.

This log must include for each manifest

transmission sent or received, the date,

time, and destination/source identity.

The transmission log must also identify

who had access to the facility’s system

during the creation, transmission, or

receipt of data. This transmission log

must be maintained without

modification and retained for 3 years

among the facility’s manifest records.

(e) Third-party storage of electronic

manifest records. (1) Electronic manifest

records may be stored by a networking

service, record archiving service, or

other commercial vendor of electronic

record storage services provided that

such records are maintained in a system

that complies with the requirements of

40 CFR 262.26, including the

requirement for reasonable inspector

access to records during their retention

period, and the requirement for

validation of the third-party system’s

operation by a qualified, independent

information systems security

professional.

(2) A facility owner or operator who

uses a third-party vendor of electronic

record storage services to meet their

record retention requirements remains

responsible for the proper performance

of their record retention requirements,

including the requirement to provide

reasonable inspector access during the

entire record retention period.

(f) Receipt. An electronic manifest is

deemed to have been received by the

recipient when it is accessible to the

recipient in a format that can be read by

the recipient. If a recipient receives a

manifest record for which there is

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28315

evidence that the data has been

corrupted (e.g., garbled text, or hash

functions or checksums that do not

calculate correctly), the recipient must

request that the sender re-transmit a

corrected version of the record.

(g) Acknowledgment of receipt. When

an electronic manifest transmission is

received, the recipient must promptly

generate and transmit to the sender an

acknowledgment that confirms the

receipt of data that can be translated by

the recipient’s system.

(h) Date of receipt. The

acknowledgment generated by the

recipient to confirm the receipt of

translatable data will constitute

conclusive evidence of receipt of the

electronic manifest and will establish

the date of receipt. An electronic

transmission will not be considered

complete until the sender receives the

acknowledgment of receipt.

(i) Retransmission. If a positive

acknowledgment is not received within

12 hours of a transmission, then the

person who initiated the transmission

must promptly re-transmit the

electronic manifest.

(j) Inability to transmit. No person

will be excused from the requirement to

initiate or use a manifest because of a

foreseeable or unforeseeable system

failure that prevents the transmission of

a valid electronic manifest. If a person

is unable to initiate or transmit a valid

manifest electronically, it must use the

paper manifest required to be used in

accordance with § 262.20(a)(2) and

§ 263.20 of this chapter.

PART 265—INTERIM STATUS

STANDARDS FOR OWNERS AND

OPERATORS OF HAZARDOUS WASTE

TREATMENT, STORAGE, AND

DISPOSAL FACILITIES

33. The authority citation for part 265

continues to read as follows:

Authority: 42 U.S.C. 6905, 6906, 6912(a),

6922, 6923, 6924, 6925, 6935, 6936, and

6937, unless otherwise noted.

Subpart E—MANIFEST SYSTEM,

RECORDKEEPING, AND REPORTING

34–35. Section 265.71 is amended by

revising paragraphs (a) and (b)(4) and

adding paragraph (e) to read as follows:

§ 265.71 Use of manifest system.

(a)(1) If a facility receives hazardous

waste with a manifest, the owner or

operator, or his agent, must sign and

date the manifest, as indicated in

paragraphs (a)(2), (3), or (4) of this

section to certify that the hazardous

waste covered by the manifest was

received, that the hazardous waste was

received except as noted in the

discrepancy space of the manifest, or

that the hazardous waste was fully

rejected as noted in the manifest

discrepancy space.

(2) If a facility receives a hazardous

waste shipment accompanied by a paper

manifest, the owner or operator, or his

agent must:

(i) Sign and date, by hand, each copy

of the manifest;

(ii) Note any discrepancies (as defined

in § 265.72(a)) on each copy of the

manifest;

(iii) Immediately give the transporter

at least one paper copy of the manifest;

(iv) Within 30 days of delivery, send

a copy of the paper manifest to the

generator; and

(v) Retain at the facility a paper copy

of each manifest for at least three years

from the date of delivery.

(3) If a facility receives a hazardous

waste shipment covered by an

electronic manifest, and the generator,

transporter, and facility all participate

in the electronic manifest system, the

owner or operator, or his agent, must:

(i) Electronically sign and date the

manifest, using an electronic signature

in accordance with the provisions of 40

CFR 262.25, to certify that the

hazardous waste covered by the

manifest was received;

(ii) Note any discrepancies (as defined

in § 265.72(a)) on the electronic

manifest;

(iii) Immediately provide the

transporter with one electronic copy of

the signed manifest;

(iv) Immediately send an electronic

copy of the signed manifest to the

generator; and

(v) Retain at the facility an electronic

copy of each manifest for at least three

years from the date of delivery.

(4) If an owner or operator

participates with a generator in an

electronic manifest system, but receives

a hazardous waste shipment from a

transporter that does not participate in

the electronic system, the owner or

operator must:

(i) Hand-sign and date a paper copy

of the manifest (or other shipping paper

under 49 CFR part 172, subpart C)

provided by the delivering transporter,

and immediately give the transporter

the copy of the hand-signed manifest or

shipping paper;

(ii) Electronically sign (using an

electronic signature in accordance with

§ 262.25) and date the electronic

manifest covering the shipment that was

forwarded to the facility by the

generator, to certify that the hazardous

waste covered by the manifest was

received;

(iii) Note any significant

discrepancies in the manifest (as

defined in § 265.72(a)) on the electronic

manifest;

(iv) Immediately return the

electronically signed electronic copy of

the manifest to the generator; and

(v) Retain at the facility an electronic

copy the manifest for at least three years

from the date of delivery.

(b) * * *

(4) Within 30 days after the delivery,

send a copy of the signed and dated

manifest or shipping paper (if the

manifest has not been received within

30 days after delivery) to the generator.

However, if the generator and the

facility participate in an electronic

manifest system, the owner or operator,

or his agent, shall electronically sign

and date (and note any discrepancies)

the electronic manifest provided by the

generator, and immediately send the

signed electronic copy to the generator

in lieu of a paper copy.

* * * * *

(e) A facility must contact the

consignment state to determine whether

that state requires facilities to enter

optional state information on the

manifest. Facilities must also contact

the consignment state to determine

whether they are required to submit a

copy of the manifest to the state.

36. Section 265.72 is revised to read

as follows:

§ 265.72 Manifest discrepancies.

(a) Manifest discrepancies are:

Significant differences (as defined by

paragraph (b) of this section) between

the quantity or type of hazardous waste

designated on the manifest or shipping

paper, and the quantity and type of

hazardous waste a facility actually

receives; Rejected wastes, which may be

a full or partial shipment of hazardous

waste that the TSDF cannot accept; or

Container residues, which are residues

that exceed the quantity limits for

‘‘empty’’ containers set forth in 40 CFR

261.7(b).

(b) Significant differences in quantity

are: For bulk waste, variations greater

than 10 percent in weight; and for batch

waste, any variation in piece count,

such as a discrepancy of one drum in a

truckload. Significant differences in

type are obvious differences which can

be discovered by inspection or waste

analysis, such as waste solvent

substituted for waste acid, or toxic

constituents not reported on the

manifest or shipping paper.

(c) Upon discovering a significant

difference in quantity or type, the owner

or operator must attempt to reconcile

the discrepancy with the waste

generator or transporter (e.g., with

telephone conversations). If the

discrepancy is not resolved within 15

28316 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

days after receiving the waste, the

owner or operator must immediately

submit to the Regional Administrator a

letter describing the discrepancy and

attempts to reconcile it, and a copy of

the manifest or shipping paper at issue.

(d)(1) Upon rejecting waste or

identifying a container residue that

exceeds the quantity limits for ‘‘empty’’

containers set forth in 40 CFR 261.7(b),

the facility must contact the generator to

obtain the generator’s instructions for

forwarding the waste to another facility

that can manage the waste. The facility

must send the waste according to the

generator’s instructions. If it is

impossible to locate in a timely manner

an alternative facility that can promptly

receive the waste, the facility may, with

permission of the generator, return the

rejected waste or residue to the

generator.

(2) While the facility is making

arrangements for forwarding rejected

wastes or residues to another facility

under this section, it must ensure that

either the delivering transporter retains

custody of the waste, or, the facility

must provide for secure, temporary

custody of the waste pending delivery of

the waste to the first transporter

designated on the new manifest

prepared under paragraph (e) or (f) of

this section.

(e) For rejected loads and residues

that are to be sent off-site to an alternate

facility, the facility is required to

prepare a new manifest in accordance

with § 262.20(a) of this chapter and the

following instructions:

(1) Write the generator’s name,

address and U.S. EPA ID number in the

generator’s name and mailing address

box (Items 1 and 4) of a new manifest.

(2) Write the name of the alternate

designated facility and the facility’s U.S.

EPA ID number in the designated

facility block (Item 9) of a new manifest.

(3) Copy the manifest tracking number

found in Block A or Item 3 of the old

manifest to the Special Handling and

Additional Information Block of the

new manifest, and indicate that the

shipment is a residue or rejected waste

from the previous shipment,

(4) Copy the manifest tracking number

found in Item 3 of the new manifest to

the manifest reference number line in

the Discrepancy Block of the old

manifest (Item 20) of this chapter.

(5) Write the DOT description for the

rejected load or the residue in the Item

10 (U.S. DOT Description) of the new

manifest and write the container types,

quantity, and volume(s) of waste.

(6) Sign the Generator’s Certification

to certify, as the offeror of the shipment,

that the waste has been properly

packaged, marked and labeled and is in

proper condition for transportation.

(f) For rejected wastes and residues

that must be sent back to the generator,

the facility is required to prepare a new

manifest in accordance with § 262.20(a)

of this chapter and the following

instructions:

(1) Write the facility’s name, address

and U.S. EPA ID number in the

generator’s name and mailing address

box (Items 1 and 4) of a new manifest.

(2) Write the name of the initial

generator and the generator’s U.S. EPA

ID number in the designated facility

block (Item 9) of the new manifest.

(3) Copy the manifest tracking number

found in Block A or Item 3 of the old

manifest to the Special Handling and

Additional Information Block of the

new manifest, and indicate that the

shipment is a residue or rejected waste

from the previous shipment,

(4) Copy the manifest tracking number

found in Item 3 of the new manifest to

the manifest reference number line in

the Discrepancy Block of the old

manifest (Item 20),

(5) Write the DOT description for the

rejected load or the residue in the Item

10 (U.S. DOT Description) of the new

manifest and write the container types,

quantity, and volume(s) of waste.

(6) Sign the Generator’s Certification

to certify, as offeror of the shipment,

that the waste has been properly

packaged, marked and labeled and is in

proper condition for transportation,

(g) If a facility rejects a waste or

identifies a container residue that

exceeds the quantity limits for ‘‘empty’’

containers set forth in 40 CFR 261.7(b)

after it has already signed a manifest or

shipping paper to certify to the receipt

of the materials under 40 CFR 265.71(a)

or (b), the facility must amend its copy

of the manifest to indicate the rejected

wastes or residues in the discrepancy

space of the amended manifest. The

facility must also copy the manifest

tracking number from Item 3 of the new

manifest to the discrepancy space of the

amended manifest, and must re-sign and

date the manifest to certify to the

information as amended. The facility

must retain the amended manifest for at

least three years from the date of

amendment, and must within 30 days,

send a copy of the amended manifest to

the delivering transporter and to the

generator.

37. Section 265.76 is revised to read

as follows:

§ 265.76 Unmanifested waste report.

(a) If a facility accepts for treatment,

storage, or disposal any hazardous waste

from an off-site source without an

accompanying manifest, or without an

accompanying shipping paper as

described by § 263.20(e) of this chapter,

and if the waste is not excluded from

the manifest requirement by this

chapter, then the owner or operator

must prepare and submit a letter to the

Regional Administrator within fifteen

days after receiving the waste. The

unmanifested waste report must contain

the following information:

(1) The EPA identification number,

name and address of the facility;

(2) The date the facility received the

waste;

(3) The EPA identification number,

name and address of the generator and

the transporter, if available;

(4) A description and the quantity of

each unmanifested hazardous waste the

facility received;

(5) The method of treatment, storage,

or disposal for each hazardous waste;

(6) The certification signed by the

owner or operator of the facility or his

authorized representative; and

(7) A brief explanation of why the

waste was unmanifested, if known.

(b) [Reserved]

38. Subpart E is amended by adding

new § 265.78;

§ 265.78 Electronic manifest systems.

(a) If an owner or operator of a facility

that treats, stores, or disposes of

hazardous waste participates in an

electronic manifest system, the

electronic system used by the owner or

operator to originate, use, sign, transmit,

or store electronic manifests must be

designed and operated in accordance

with the electronic format standards

described in 40 CFR 262.20(a)(3), the

electronic signature standards in 40 CFR

262.25, and the system controls and

computer security requirements

described in 40 CFR 262.26.

(b) Except where a provision of this

Part specifically requires a paper copy

of a manifest or a handwritten signature,

manifest copies which are electronically

signed in accordance with the

provisions on electronic manifest

signatures in 40 CFR 262.25, and which

are originated, transmitted, or

maintained by electronic systems that

comply with paragraph (a) of this

section, will be considered the legal

equivalent to paper manifest copies

bearing handwritten signatures.

(c) Electronic manifest copies as well

as any computer systems (hardware and

software), controls, and related

documentation maintained under this

section, must be readily available for,

and subject to inspection by any EPA or

authorized state inspector.

(d) Transmission log. An owner or

operator of a facility which transmits or

receives electronic manifests must

Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules 28317

maintain a transmission log covering all

electronic manifests sent or received.

This log must include for each manifest

transmission sent or received, the date,

time, and destination/source identity.

The transmission log must also identify

who had access to the facility’s system

during the creation, transmission, or

receipt of data. This transmission log

must be maintained without

modification and retained for 3 years

among the facility’s manifest records.

(e) Third-party storage of electronic

manifest records. (1) Electronic manifest

records may be stored by a networking

service, record archiving service, or

other commercial vendor of electronic

record storage services provided that

such records are maintained in a system

that complies with the requirements of

40 CFR 262.26, including the

requirement for reasonable inspector

access to records during their retention

period, and the requirement for

validation of the third-party system’s

operation by a qualified, independent

information systems security

professional.

(2) A facility owner or operator who

uses a third-party vendor of electronic

record storage services to meet their

record retention requirements remains

responsible for the proper performance

of their record retention requirements,

including the requirement to provide

reasonable inspector access during the

entire record retention period.

(f) Receipt. An electronic manifest is

deemed to have been received by the

recipient when it is accessible to the

recipient in a format that can be read by

the recipient. If a recipient receives a

manifest record for which there is

evidence that the data has been

corrupted (e.g., garbled text, or hash

functions or checksums that do not

calculate correctly), the recipient must

request that the sender re-transmit a

corrected version of the record.

(g) Acknowledgment of receipt. When

an electronic manifest transmission is

received, the recipient must promptly

generate and transmit to the sender an

acknowledgment that confirms the

receipt of data that can be translated by

the recipient’s system.

(h) Date of receipt. The

acknowledgment generated by the

recipient to confirm the receipt of

translatable data will constitute

conclusive evidence of receipt of the

electronic manifest and will establish

the date of receipt. An electronic

transmission will not be considered

complete until the sender receives the

acknowledgment of receipt.

(i) Retransmission. If a positive

acknowledgment is not received within

12 hours of a transmission, then the

person who initiated the transmission

must promptly re-transmit the

electronic manifest.

(j) Inability to transmit. No person

will be excused from the requirement to

initiate or use a manifest because of a

foreseeable or unforeseeable system

failure that prevents the transmission of

a valid electronic manifest. If a person

is unable to initiate or transmit a valid

manifest electronically, it must use the

paper manifest required to be used in

accordance with § 262.20(a)(2) and

§ 263.20 of this chapter.

PART 271—REQUIREMENTS FOR

AUTHORIZATION OF STATE

HAZARDOUS WASTE PROGRAMS

39. The authority citation for part 271

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), and

6926.

40. Section 271.1(j) is amended by

adding the following entries to Table 1

in chronological order by date of

publication in the Federal Register, to

read as follows:

§ 271.1 Purpose and scope.

* * * * *

(j) * * *

TABLE 1.—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984

Promulgation date Title of regulation Federal Register reference Effective date

*******

[Insert date of publication of final

rule in the Federal Register

(FR)].

Waste Minimization Certification in

the Revised Manifest Rule.

[Insert FR page numbers] ............. [Insert date of X months from date

of publication of final rule].

* * * * *

41. Section 271.10 is amended by

revising paragraphs (f) and (h) to read as

follows:

§ 271.10 Requirements for generators of

hazardous wastes.

* * * * *

(f) The State must require that all

generators of hazardous waste who

transport (or offer for transport) such

hazardous waste off-site:

(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.

(i) The manifest system must include,

in the case of shipments covered by a

paper manifest, the use of the paper

manifest format as required by

§ 262.20(a)(2), § 262.21 and § 262.23. No

other manifest form, shipping

document, or information, other than

that required by federal law, may be

required by the State to travel with the

shipment.

(ii) If the state chooses to allow

electronic manifesting, then the

manifest system must include, in the

case of shipments covered by an

electronic manifest, the use of the

electronic manifest formats as required

by § 262.20(a)(3), § 262.21 and § 262.24.

No other electronic manifest format or

information, other than that required by

federal law, may be required by the state

as a means to identify electronically the

quantity, composition, origin, routing,

and destination of a hazardous waste

shipment during its transportation from

the point of generation to the point of

storage, treatment, or disposal.

(iii) If the state chooses to allow

electronic manifesting, then the

manifest system must also include the

electronic signature requirements in

§ 262.25 and the electronic manifest

systems and security provisions in

§ 262.26.

(2) Initiate the manifest and designate

on the manifest the storage, treatment,

or disposal facility to which the waste

is to be shipped.

(3) Ensure that all wastes offered for

transportation are accompanied by a

paper manifest, except:

(i) Shipments subject to § 262.20(e) or

(f),

(ii) Shipments by rail or water that are

covered by a paper manifest, as

specified in 40 CFR 262.23(c) and (d),

28318 Federal Register / Vol. 66, No. 99 / Tuesday, May 22, 2001 / Proposed Rules

(iii) Shipments by rail or water that

are covered by an electronic manifest, as

specified in 40 CFR 262.24(e) and (f), or

(iv) Shipments covered by an

electronic manifest, as specified in 40

CFR 262.24(c).

* * * * *

(h) The State must follow the Federal

manifest format for the form and

instructions (40 CFR 262.20 and

Appendix 1) and may implement

certain optional fields to the limited

extent described below.

(1) In addition to the federally

required information, either the State in

which the generator is located or the

State in which the designated facility is

located may require completion of the

following items:

(i) Waste codes (either federal or state

codes associated with particular wastes)

(Block A), and/or

(ii) Biennial Report system type codes

(codes associated with particular waste

treatment, or disposal methods) (Block

B).

(iii) The additional waste code or

Biennial Report system type code

information required by the State must

fit within the space of Blocks A and B

on the form (and, if a continuation sheet

is used, Blocks C and D) using normal

12-point pitch. The additional

information must be required by state

statute or regulation. The State may not

require any information that duplicates

information required elsewhere on the

form.

(2) A state may require additional

waste descriptions associated with the

particular hazardous wastes listed on

the Manifest to be entered in Item 14.

This information is limited to

information such as chemical names,

constituent percentages, physical state,

and waste management method. A state

may not require information other than

information as described in paragraphs

(h)(1) and (2) of this section.

(3) No State may impose enforcement

sanctions on a transporter during

transportation of the shipment for

failure of the form to include optional

State information items.

(4) Either the State to which a

shipment is manifested (consignment

State) or the State in which the

generator is located (generator State), or

both, may require that copies of the

manifest form be submitted to the State.

(i) Unless otherwise provided in part

271, the state program shall have

standards for generators which are at

least as stringent as any amendment to

40 CFR Part 262 which is promulgated

after July 1, 1984.

42. Section 271.11 is amended by

revising paragraph (c) to read as follows:

§ 271.11 Requirements for transporters of

hazardous waste.

* * * * *

(c)(1) The State must require

transporters to carry the manifest during

transport, except:

(i) In the case of shipments by rail or

water, transporters may carry a shipping

paper, as specified in 40 CFR 263.20(e)

and (f);

(ii) If the State chooses to allow

electronic manifesting, transporters

must carry either a paper copy of the

manifest, or other shipping paper as

specified in 40 CFR 263.20(b), (c), (d),

and (f).

(2) The State must require the

transporter to deliver waste only to the

facility designated on the manifest.

(3) The State program must provide

requirements for shipments by rail or

water equivalent to those under 40 CFR

263.20(e) and (f).

(4) If the State chooses to allow

electronic manifesting, the State

program must include requirements

equivalent to those provisions contained

in 40 CFR 263.20(b), (c), (d), and

(f) which address transporters’ use of

the electronic manifest, requirements

equivalent to the provisions in 40 CFR

263.22(a), (f), and (g) which address

recordkeeping of electronic manifest

records, and requirements equivalent to

those under 40 CFR 263.23 which

address electronic manifest systems.

(5) For exports of hazardous waste,

the state must require the transporter to

refuse to accept hazardous waste for

export if he knows the shipment does

not conform to the EPA

Acknowledgment of Consent, to carry

an EPA Acknowledgment of Consent to

the shipment, and to provide a copy of

the manifest to the U.S. Customs official

at the point the waste leaves the United

States.

(6) For imports of hazardous waste,

the State must require the transporter to

provide a copy of the manifest to the

U.S. customs official at the point the

waste enters the United States.

* * * * *

43. Section 271.12 is amended by

revising paragraph (i) to read as follows:

§ 271.12 Requirements for hazardous

waste management facilities.

* * * * *

(i) Compliance with the manifest

system, including:

(1) The requirement that facility

owners or operators return a signed

copy of the manifest to the generator to

certify delivery of the hazardous waste

shipment or to identify discrepancies;

(2) If the State chooses to allow

electronic manifesting, requirements

equivalent to those provisions in 40 CFR

264.71 addressing the use of the

electronic manifest, and requirements

equivalent to those in 40 CFR 264.78

addressing electronic manifest systems;

and

* * * * *

[FR Doc. 01–11909 Filed 5–21–01; 8:45 am]

BILLING CODE 6560–50–P