[Federal Register Volume 66, Number 153 (Wednesday, August 8, 2001)]
[Proposed Rules]
[Pages 41490-41493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-19647]


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DEPARTMENT OF TRANSPORTATION

Research and Special Programs Administration

49 CFR Part 172

[Docket No. RSPA-01-10292 (HM-206E)]
RIN 2137-AD50


Hazardous Materials: Hazardous Waste Manifest Requirements

AGENCY: Research and Special Programs Administration (RSPA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: RSPA proposes to revise its regulations on the use of the 
Uniform Hazardous Waste Manifest for shipments of hazardous wastes to

[[Page 41491]]

parallel some changes proposed by the Environmental Protection Agency 
(EPA). RSPA is proposing to require that, if the generator of a 
hazardous waste prepares an electronic manifest, either a physical copy 
of the electronic manifest or another document containing the 
information required for a shipping paper must accompany the hazardous 
waste in transportation. The intended effect of this proposed rule is 
to maintain consistency between EPA's and RSPA's requirements.

DATES: Submit comments by October 4, 2001. To the extent practicable, 
we will consider comments received after this date in making our 
decision on a final rule.

ADDRESSES: Address your comments to the Dockets Management System, U.S. 
Department of Transportation, Room PL 401, 400 Seventh St., SW, 
Washington, DC 20590-0001. You must identify the docket number, RSPA-
01-10292 (HM-206E) at the beginning of your comments, and you should 
submit two copies of your comments. If you wish to receive confirmation 
that your comments are received, include a self-addressed stamped 
postcard. You may also submit your comments and review all comments by 
accessing the Docket Management System website at http://dms.dot.gov. 
Click on ``Help and Information'' to obtain instructions for filing a 
document electronically.
    The Dockets Unit is located on the Plaza Level of the Nassif 
Building at the U.S. DOT at the above address. You may view public 
dockets between the hours of 10 a.m. and 5 p.m., Monday through Friday, 
except on Federal holidays. An electronic copy of this document may be 
downloaded from the Federal Register Electronic Bulletin Board Service 
at (202) 512-1661. Internet users may reach the Office of the Federal 
Register's home page at: http://www.nara.gov/nara/fedreg and the 
Government Printing Office's database at http://www.access.gpo.gov/su--
docs or the Office of Hazardous Materials Safety at http://rspa.dot.gov/rulemake.htm.

FOR FURTHER INFORMATION CONTACT: Michael Johnsen, Office of Hazardous 
Materials Standards, telephone (202) 366-8553, Research and Special 
Programs Administration, U.S. Department of Transportation, 400 Seventh 
Street, SW., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

I. Background

    Under the authority of the Resource Conservation and Recovery Act 
(RCRA; 42 U.S.C. 6901, et seq.) and regulations of the Environmental 
Protection Agency (EPA) at 40 CFR Parts 262-264, hazardous wastes are 
tracked from their producer (generator) to their final disposal sites. 
The central tracking element of this system is the Uniform Hazardous 
Waste Manifest (uniform manifest), which accompanies a hazardous waste 
shipment from its point of origin to its destination. In 42 U.S.C. 
6923, RCRA directs EPA to consult with DOT and issue regulations on the 
transportation of hazardous wastes that are ``consistent with'' 
requirements in the Hazardous Materials Regulations (HMR; 49 CFR Parts 
171-180).
    In coordinated rulemakings that followed joint EPA-DOT public 
hearings, EPA and RSPA issued final rules in 1980 requiring that a 
manifest accompany each shipment of hazardous waste during 
transportation. See 45 FR 12272 (Feb. 26, 1980) (EPA), 34560 (May 22, 
1980) (RSPA). In 49 CFR 172.205, RSPA provided that the uniform 
manifest ``may be used as the shipping paper required by'' the HMR, so 
long as it contained all the required information. Four years later, 
EPA and RSPA concurrently amended their regulations to adopt the 
current uniform manifest form in order to address the problems 
resulting from ``a proliferation of manifests as States decided to 
develop and print their own forms.'' 49 FR 10490 (EPA), 10507 (RSPA) 
(March 20, 1984). Under the current regulations, a generator may use 
the uniform manifest form for wastes regulated solely by a State, but a 
State may not ``impose enforcement sanctions on a transporter during 
transportation of the shipment for failure of the form to include 
preprinted information or optional State information items.'' 40 CFR 
271.10(h)(2).
    EPA has recently proposed to revise its uniform manifest 
regulations (66 FR 28239; May 22, 2001). One of EPA's proposed changes 
would allow the uniform manifest to be prepared and transmitted 
electronically from the generator to the disposal facility, rather than 
requiring it to accompany the shipment. On the electronic manifest, the 
required signatures would be done electronically, rather than in 
handwriting on a paper form. In addition, EPA is proposing to: (1) 
Align the definitions of ``bulk packaging'' and ``non-bulk packaging'' 
in its regulations to be consistent with those definitions in 49 CFR 
171.8; (2) provide space on the uniform manifest for information 
currently required by the HMR on a shipping paper, including an 
emergency response phone number and the Packing Group of the material; 
and (3) revise the text of the certification statement by the generator 
to match the language required in 49 CFR 172.204(a).

II. Proposed Changes to the HMR

    A uniform manifest that is prepared and transmitted electronically, 
from the generator to the transporter, the disposal facility, and the 
monitoring governmental agencies, can provide all the information 
necessary to track a shipment of hazardous waste. However, an 
electronic manifest cannot serve the purpose of a shipping paper to 
alert emergency responders as to the nature and hazards of materials in 
a transport vehicle or freight container, in the event of an incident 
during transportation of those materials, when electronic translators 
or readers may not be available. Accordingly, EPA has proposed that a 
paper copy of the manifest or other shipping paper must accompany the 
shipment.
    In order to parallel EPA's proposal for an electronic manifest, 
RSPA proposes to modify 49 CFR 172.205 to provide that, when an 
electronic manifest is used, the hazardous waste must be accompanied by 
a physical shipping paper that can be either (1) a print-out (paper 
copy) of the electronic manifest or (2) a separate shipping paper that 
meets all of the shipping paper requirements in 49 CFR, subpart C of 
part 172. In addition, to prevent confusion by enforcement officials, 
if an electronic manifest is being used in the transportation of a 
hazardous waste, the shipping paper or copy of the electronic manifest 
must indicate on the document that an electronic manifest is being 
used.
    Because Sec. 172.204(d)(2) allows for a shipping paper to be 
``signed manually, by typewriter, or by other mechanical means,'' no 
change to the HMR is needed when a paper copy of the electronic 
manifest is used as the shipping paper accompanying hazardous waste 
during transportation. The signature of the generator on the electronic 
manifest, as printed out on a physical copy, would satisfy the 
requirement in Sec. 172.204(d). Other changes to the uniform manifest 
proposed by EPA that relate to requirements in the HMR would not 
require changes in the HMR.

III. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    This NPRM is not considered a significant regulatory action under 
section 3(f) of Executive Order 12866 and, therefore, was not reviewed 
by the Office of Management and Budget. This rule is not significant 
under the

[[Page 41492]]

Regulatory Policies and Procedures of the Department of Transportation 
(44 FR 11034).
    The intent of the changes in this notice is to clarify that 
shipping paper information must still accompany every shipment of 
hazardous waste, even those for which electronic manifests are 
authorized. The net effect of these changes is to maintain current 
shipping paper requirements for hazardous wastes. Since there is no 
change in the shipping paper requirements other than the inclusion of 
an indication on the shipping documentation that an electronic manifest 
is being used, the costs and benefits would be so minimal as to not 
warrant preparation of a regulatory impact analysis or regulatory 
evaluation. This determination may be revised as a result of public 
comment.

B. Executive Order 13132

    This NPRM has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132 (``Federalism''). This 
proposed rule would preempt State, local, and Indian tribe requirements 
but does not propose any regulation that has substantial direct effects 
on the States, the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Therefore, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    The Federal hazardous material transportation law (Federal law), 49 
U.S.C. 5101-5127, contains an express preemption provision in 49 U.S.C. 
5125(b)(1) that a State, local, or Indian tribe requirement about any 
of the following subjects is preempted if the non-Federal requirement 
is not substantively the same as a provision in the Federal law or the 
HMR:
    (A) The designation, description, and classification of hazardous 
material;
    (B) The packing, repacking, handling, labeling, marking, and 
placarding of hazardous material;
    (C) The preparation, execution, and use of shipping documents 
related to hazardous material and requirements related to the number, 
contents, and placement of those documents;
    (D) The written notification, recording, and reporting of the 
unintentional release in transportation of hazardous material; or
    (E) The design, manufacturing, fabricating, marking, maintenance, 
reconditioning, repairing, or testing of a packaging or container 
represented, marked, certified, or sold as qualified for use in 
transporting hazardous material.
    This proposed rule addresses the preparation and use of shipping 
documents, and Federal law would preempt State, local, and Indian tribe 
written incident reporting requirements that are not ``substantively 
the same as'' the requirements in this proposed rule HMR.
    Federal law provides at section 5125(b)(2) that, if DOT issues a 
regulation concerning any of the covered subjects, DOT must determine 
and publish in the Federal Register the effective date of Federal 
preemption. The effective date may not be earlier than the 90th day 
following the date of issuance of the final rule and not later than two 
years after the date of issuance. We propose that the effective date of 
Federal preemption would be 180 days from publication of a final rule 
in this matter in the Federal Register.

C. Executive Order 13084

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13084 
(``Consultation and Coordination with Indian Tribal Governments''). 
Because this proposed rule, if adopted, would not significantly or 
uniquely affect the Indian tribal communities, and would not impose 
substantial direct compliance costs, the funding and consultation 
requirements of the Executive Order do not apply.

D. Regulatory Flexibility Act

    The intent of the changes in this notice is to clarify that 
shipping paper information must still accompany every shipment of 
hazardous waste, even those for which electronic manifests are 
authorized. The net effect of these changes is to maintain current 
shipping paper requirements for hazardous wastes. Since there is no 
change in the shipping paper requirements other than the inclusion of 
an indication on the shipping documentation that an electronic manifest 
is being used, the impacts of this rule, if adopted, are anticipated to 
be so minimal as to not warrant preparation of a regulatory impact 
analysis. Therefore, I certify that this rulemaking action will not 
have a significant economic impact on a substantial number of small 
entities.

E. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, no person is required to 
respond to a collection of information unless it displays a valid 
Office of Management and Budget (OMB) control number. This proposed 
rule does not propose any change in information collection burdens. The 
information collection associated with the proposal is currently 
reported and has been approved by OMB under control number 2137-0034.

F. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
action listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN number contained in the heading 
of this document can be used to cross-reference this action with the 
Unified Agenda.

G. Unfunded Mandates Reform Act

    This rulemaking would not impose unfunded mandates under the 
Unfunded Mandates Reform Act of 1995. It would not result in costs of 
$100 million or more to either State, local, or tribal governments, in 
the aggregate, or to the private sector.

H. Environmental Assessment

    The intent of the changes in this notice is to clarify that 
shipping paper information must still accompany every shipment of 
hazardous waste, even those for which electronic manifests are 
authorized. The net effect of these changes is to maintain current 
shipping paper requirements for hazardous wastes. Since there is no 
change in the shipping paper requirements other than the inclusion of 
an indication on the shipping documentation that an electronic manifest 
is being used, we find that there are no significant environmental 
impacts associated with this proposed rule.

List of Subjects in 49 CFR Part 172

    Education, Hazardous materials transportation, Hazardous waste, 
Labeling, Packaging and containers, Reporting and recordkeeping 
requirements.

    In consideration of the foregoing, 49 CFR part 172 is proposed to 
be amended as follows:

PART 172--HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS 
MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND 
TRAINING REQUIREMENTS

    1. The authority citation for part 172 would continue to read as 
follows:

    Authority: 49 U.S.C. 5101-5127; 49 CFR 1.53.

    2. In Sec. 172.205, paragraphs (a), (b), (c), (d) and the 
introductory text of paragraph (f) would be revised, paragraph (e) 
would be removed and reserved, paragraph (g) would be

[[Page 41493]]

redesignated as paragraph (f)(6), and paragraph (h) would be removed to 
read as follows:


Sec. 172.205  Hazardous waste manifest.

    (a) No person may offer, transport, transfer, or deliver a 
hazardous waste (waste) unless a hazardous waste manifest (manifest) is 
prepared in accordance with 40 CFR 262.20 and the manifest is signed, 
carried, and given in accordance with this section.
    (b) When a generator prepares an electronic manifest in accordance 
with 40 CFR 262.20(a)(3)--
    (1) Either a physical copy of the electronic manifest bearing the 
signature of the generator or a shipping paper meeting the requirements 
of Secs. 172.200 through 172.204 must accompany the waste during 
transportation; and
    (2) The copy of the electronic manifest or the shipping paper must 
include a statement indicating that an electronic manifest is being 
used, such as ``electronic manifest.''
    (c) When a generator prepares a paper manifest on Form 8700-22 (and 
8700-22A when necessary) in accordance with 40 CFR 262.20(a)(2) and the 
instructions in the appendix to 40 CFR part 262--
    (1) The original copy of the manifest must be dated by, and bear 
the handwritten signatures of, the person representing:
    (i) The generator of the hazardous waste at the time that the 
hazardous waste is offered for transportation, and
    (ii) The initial carrier accepting the hazardous waste for 
transportation;
    (2) A copy of the manifest must be dated by, and bear the 
handwritten signatures of the person representing:
    (i) Each subsequent carrier accepting the hazardous waste for 
transportation at the time of acceptance, and
    (ii) The designated facility receiving the hazardous waste, upon 
receipt; and
    (3) A copy of the manifest bearing all required dates and 
signatures must be:
    (i) Given to a person representing each carrier accepting the 
hazardous waste for transportation;
    (ii) Given to a person representing the designated facility 
receiving the hazardous waste;
    (iii) Returned to the generator by the carrier that transported 
hazardous waste from the United States; and
    (iv) Retained by the generator and by the initial and each 
subsequent carrier for three years from the date the waste was accepted 
by the initial carrier. Each retained copy must bear all required 
signatures and dates up to and including those entered by the next 
person who received the hazardous waste from the person retaining the 
copy.
    (d) A physical copy of an electronic manifest or a paper manifest 
may be used as a shipping paper if it contains all the information 
required by this subpart. When used as a shipping paper, the physical 
copy of an electronic manifest or the paper manifest must be carried 
during transportation in the same manner as required by this subchapter 
for shipping papers.
    (e) [Reserved]
    (f) Transportation by rail. When a generator of a hazardous waste 
shipment by rail prepares a paper manifest on Form 8700-22 (and 8700-
22A when necessary) in accordance with 40 CFR 262.20(a)(2) and the 
instructions in the appendix to 40 CFR part 262, the following 
requirements apply instead of the requirements in paragraphs (c)(2) and 
(c)(3) of this section:
* * * * *

    Issued in Washington, DC, on July 31, 2001, under authority 
delegated in 49 CFR Part 106.
Robert A. McGuire,
Associate Administrator for Hazardous Materials Safety.
[FR Doc. 01-19647 Filed 8-7-01; 8:45 am]
BILLING CODE 4910-60-P