[Federal Register Volume 67, Number 170 (Tuesday, September 3, 2002)]
[Notices]
[Pages 56279-56281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22349]


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DEPARTMENT OF COMMERCE

National Telecommunications and Information Administration

Docket No. 020816197-2197-01


Request for Comments on the Hazardous Materials and Dangerous 
Goods Shipping Papers Exception to the Electronic Signatures in Global 
and National Commerce Act

AGENCY: National Telecommunications and Information Administration 
(NTIA), U.S. Department of Commerce

ACTION: Notice, Request For Comments

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SUMMARY: Section 101 of the Electronic Signatures in Global and 
National Commerce Act, Pub. L. No. 106-229, codified at 15 U.S.C. 
Secs. 7001 et seq. (``ESIGN'' or ``the Act''), preserves the legal 
effect, validity, and enforceability of signatures and contracts 
relating to electronic transactions and electronic signatures used in 
the formation of electronic contracts. 15 U.S.C. Sec. 7001(a). Section 
103 (a) and (b) of the Act, however, provides that the provisions of 
section 101 do not apply to contracts and records governed by statutes 
and regulations regarding court documents; probate and domestic law 
matters; certain provisions of state uniform commercial codes; utility 
service cancellations, real property foreclosure and defaults; 
insurance benefitscancellations; product recall notices; and any 
document required to accompany hazardous materials or dangerous goods. 
Section 103 of the Act also requires the Secretary of Commerce, through 
the Assistant Secretary for Communications and Information, to review 
the operation of these exceptions to evaluate whether they continue to 
be necessary for consumer protection, and to make recommendations to 
Congress based on this evaluation. 15 U.S.C. Sec. 7003(c)(1). This 
Notice is intended to solicit comments from interested parties for 
purposes of this evaluation, specifically on the hazardous materials 
and dangerous goods documents exception to ESIGN. See 15 U.S.C. 
Sec. 7003(b)(3). NTIA will publish separate notices requesting comment 
on the other exceptions listed in section 103 of the ESIGN Act.\1\
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    \1\ Comments submitted in response to Federal Register notices 
requesting comment on the other exceptions to ESIGN will be 
considered as part of the same section 103 evaluation and not as a 
separate review of the Act.

DATES: Written comments and papers are requested to be submitted on or 
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before November 4, 2002.

ADDRESSES: Written comments should be submitted to Josephine Scarlett, 
National Telecommunications and Information Administration, 14th Street 
and Constitution Ave., N.W., Washington, DC 20230. Paper submissions 
should include a three and half inch computer diskette in HTML, ASCII, 
Word, or WordPerfect format (please specify version). Diskettes should 
be labeled with the name and organizational affiliation of the filer, 
and the name of the word processing program used to create the 
document. In the alternative, comments may be submitted electronically 
to the following electronic mail address: [email protected]. Comments submitted via electronic mail also should 
be submitted in one or more of the formats specified above.

FOR FURTHER INFORMATION CONTACT: Josephine Scarlett, Attorney, Office 
of the Chief Counsel, NTIA, 14th Street and Constitution Ave., N.W., 
Washington, DC 20230, telephone (202) 482-1816 or electronic mail: 
[email protected]. Media inquiries should be directed to the 
Office of Public Affairs, National Telecommunications and Information 
Administration, at (202)482-7002.

SUPPLEMENTARY INFORMATION:

Background: Electronic Signatures in Global and National Commerce Act

    Congress enacted the Electronic Signatures in Global and National 
Commerce Act, Pub. L. No. 106-229, 114 Stat. 464 (2000), to facilitate 
the use of electronic records and signatures in interstate and foreign 
commerce and to remove uncertainty about the validity of contracts 
entered into electronically. Section 101 requires, among other things, 
that electronic signatures, contracts, and records be given legal 
effect, validity, and enforceability. Sections 103(a) and (b) of the 
Act provides that the requirements of section 101 shall not apply to 
contracts and records governed by statutes and regulations regarding: 
court records,

[[Page 56280]]

probate and domestic law matters; state commercial law; consumer law 
covering utility services, real property defaults and foreclosures, and 
insurance benefits; product recall notices; and hazardous materials 
documents.
    The statutory language providing for an exception to section 101 of 
ESIGN for the transportation and handling of hazardous materials, 
pesticides, or other toxic or dangerous materials is found in section 
103(b) of the Act:

Sec. 103. [15 U.S.C. 7003] Specific Exceptions.

    * * * *
    (b) Additional Exceptions.-- The provisions of section 101 shall 
not apply to--
    * * * *
    (3) any document required to accompany any transportation or 
handling of hazardous materials, pesticides, or other toxic or 
dangerous materials.
    * * * *
    The statutory language requiring the Assistant Secretary for 
Communications and Information to submit a report to Congress on the 
results of the evaluation of the section 103 exceptions to the ESIGN 
Act is found in section 103(c)(1) of the Act as set forth below.

(c) Review of Exceptions.

    (1) Evaluation required.-- The Secretary of Commerce, acting 
through the Assistant Secretary for Communications and Information, 
shall review the operation of the exceptions in subsections (a) and (b) 
to evaluate, over a period of 3 years, whether such exceptions continue 
to be necessary for the protection of consumers. Within 3 years after 
the date of enactment of this Act, the Assistant Secretary shall submit 
a report to Congress on the results of such evaluation.

Hazardous Materials Documents and DOT Shipping Paper Regulations

    As authorized by the Federal hazardous materials transportation law 
(Federal hazmat law; 49 U.S.C. 5101-51270, the Department of 
Transportation's (DOT) Research and Special Programs Administration 
(RSPA) has authority to regulate the transportation of hazardous 
materials in commerce. RSPA has subsequently developed a comprehensive 
set of regulations that govern the safe transportation of hazardous 
materials (Hazardous Materials Regulations; 49 CFR Parts 171-180). The 
Hazardous Materials Regulations (HMR) address a comprehensive approach 
to hazardous materials transportation, including: documentation that 
must accompany shipments (shipping papers and emergency response 
information); other hazardous communication requirements, including 
hazard warning labels and placards; packaging marking; and packaging 
manufacture and use requirements.
    Every state has adopted, and currently enforces, regulations that 
are consistent with the HMR for the transportation of hazardous 
materials. These requirements, including those addressing hazard 
communication, are generally consistent with the international 
recommendations and requirements for the shipment of hazardous 
materials issued by the United Nations Committee on the Transport of 
Dangerous Goods, the International Maritime Organization, and the 
International Civil Aviation Organization.
    RSPA requires physical, hard copy shipping papers and emergency 
response information to accompany each shipment of hazardous materials. 
The shipping paper must remain on the transport vehicle or with the 
shipment while in transportation to serve as part of the hazard 
communication system. In addition to providing information to the 
transporter, the shipping paper and other aspects of the hazard 
communication system allows emergency responders (e.g., firefighters 
and police officers) to quickly and safely identify the hazardous 
materials being transported in case of an emergency. The shipping paper 
allows emergency responders to make critical decisions concerning 
evacuation radii, personal protection equipment, fire dispersants, and 
response strategy.
    RSPA recently published a final rule which requires shippers and 
carriers of hazardous materials to retain a copy of each hazardous 
material shipping paper or an electronic image thereof, for a period of 
375 days after the date the hazardous material is accepted by a 
carrier. See 67 FR 46123, July 12, 2002; 49 CFR 172.201(e). This 
requirement is consistent with section 5110(e) of Federal hazmat law 
which requires that a copy of each shipping paper be retained for a 
period of one year after shipment of the hazardous materials ends. 
Electronic images of shipping papers are authorized. An electronic 
image includes an image transmitted by facsimile (FAX) machine, an 
image on the screen of a computer, or an image generated by an optical 
imaging machine.
    In addition, the Resource Conservation and Recovery Act (RCRA) 
authorizes the Environmental Protection Agency (EPA) to regulate the 
transportation of hazardous wastes, which are also regulated by DOT as 
hazardous materials. See 42 U.S.C. Sec. 6923(a), (b)(1976). Since the 
enactment of the ESIGN Act in 2000, both DOT and EPA have initiated 
rulemaking proceedings to revise their regulations regarding the 
transportation and handling of hazardous wastes to allow specific 
hazardous waste information to be transmitted electronically between 
generators, treatment and disposal facilities, and state governments. 
On May 22, 2001, EPA published a Notice of Proposed Rulemaking (NPRM) 
in the Federal Register requesting comment on its proposal. See 66 FR 
28239. The Notice proposed to change EPA's hazardous waste regulations, 
which establish a manifest system to track shipments of hazardous waste 
from a generator's site to the site where the hazardous waste is to be 
managed. See 40 CFR parts 262 through 265; 45 FR 12724, February 26, 
1980.
    The central purpose of the uniform hazardous waste manifest (UHWM) 
system is to provide documentation showing chain of custody of the 
hazardous waste at all times, where the waste is destined for 
disposition, and when the waste arrives at the disposal facility. The 
UHWM system allows generators, shippers, and waste handlers to use a 
single form to satisfy both EPA's manifest requirements and DOT's 
shipping paper requirements. See 49 FR 10490, March 20, 1984. Thus, the 
UHWM can also serve as a DOT-required shipping paper conveying 
essential emergency information during transportation, such as the 
proper shipping name and hazard class of a material, and the telephone 
number where more information about the material can be obtained.
    EPA's NPRM proposes to modify the UHWM regulations to allow waste 
handlers (generators, transporters, and treatment, storage or disposal 
facilities) the option of preparing, transmitting, signing, and storing 
their manifests electronically. See 66 FR 28240, 28266. This proposal 
includes a standard for signing the manifest with electronic 
signatures, electronic data interchange (EDI) and Internet file 
standards, and computer security standards. The EPA proposal, however, 
also contains a requirement that a paper copy of the electronic 
manifest accompany the shipment in order to satisfy the HMR requirement 
that a shipping paper accompany each hazardous materials shipment for 
emergency response purposes.
    In connection with EPA's notice, RSPA, issued an NPRM proposing to 
revise its regulations on the use of the UHWM for hazardous waste 
shipments.

[[Page 56281]]

 RSPA's proposed regulatory changes parallel EPA's proposal. See 66 FR 
41490, August 8, 2001. Specifically, RSPA proposes to modify title 49 
of the Code of Federal Regulations, part 172.505 to provide that a 
printout of the electronic manifest or a separate shipping paper must 
accompany the shipment of hazardous waste when an electronic manifest 
is used. Id. at 41491.
    Both EPA's and DOT's proposed and current regulations regarding 
hazardous materials and hazardous wastes will be impacted by 
elimination of the ESIGN Act's hazardous and dangerous materials 
documents exception. Thus, the section 103 evaluation initiated by this 
Notice has implications for companies that engage in the manufacture, 
sale, transportation, and disposal of hazardous materials. It also has 
implications for emergency responders who rely on the immediate 
availability of critical information in the event of a release of 
hazardous materials in transportation.\2\
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    \2\ Several federal agencies have various responsibilities 
concerning hazardous materials and dangerous substances. There are 
also numerous state agencies and organizations that act to protect 
the public from misuse, mishandling, or errors in labeling of 
hazardous materials. EPA and DOT have proposed regulations 
implicating the transmission of electronic documents that provide 
notice regarding hazardous materials. Reference to these agencies is 
not intended to exclude other agencies that play a valuable role in 
protecting consumers.
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The ESIGN Section 103 Evaluation

    The ESIGN Act directs the Assistant Secretary of Communications and 
Information to conduct an evaluation of the exceptions set out in 
section 103 of the Act to determine whether the exceptions continue to 
be necessary for the protection of consumers, and to submit a report to 
Congress on the results of the evaluation no later than June 30, 2003. 
The Assistant Secretary for Communications and Information is the chief 
administrator of NTIA. As the President's principal advisor on 
telecommunications policies pertaining to the Nation's economic and 
technological advancement, NTIA is the executive branch agency 
responsible for developing and articulating domestic and international 
telecommunications policy.
    The ESIGN section 103 evaluation of the hazardous materials 
documents exception is intended to evaluate the current status of 
federal and state regulations and practices, and the course of dealing 
among companies that handle and transport hazardous wastes, in 
preparation for a report to Congress on whether the exception of 
documents related to the transportation and handling of hazardous 
materials remains necessary to protect consumers. The purpose of this 
evaluation is not to review or analyze federal and state regulations 
and rules relating to hazardous materials documents for the purpose of 
recommending changes to those regulations, but rather to advise 
Congress of the current state of law, practice, and procedure regarding 
this issue. Comments filed in response to this Notice should not be 
considered to have a connection with or impact on federal and state 
procedures or rulemaking proceedings concerning hazardous materials 
documents.
    Due to the comprehensive nature of EPA and DOT's rulemaking 
proceedings and the scope of the issues raised therein, NTIA may 
consider comments submitted in those proceedings in the preparation of 
the report to Congress.\3\
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    \3\ The NTIA Request for Comments and resulting evaluation, 
however, have no legal effect on existing EPA or DOT rules or their 
ongoing regulatory proceedings.
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Invitation to Comment

    NTIA requests that all interested parties submit written comment on 
any issue of fact, law, or policy that may assist in the evaluation 
required by section 103(c). We invite comment on ESIGN generally to 
assist in evaluating the narrower issues associated with the 
substantive law governing the hazardous materials and dangerous 
substances documents exception. The following questions are intended to 
provide guidance as to the specific subject areas to be examined as a 
part of the evaluation. Commenters are invited to discuss any relevant 
issue, regardless of whether it is identified below.
    1. Describe federal, state and local regulations, laws, and 
ordinances that require documentation for handling of hazardous 
materials and dangerous substances.
    2. Describe the current developments with respect to electronic 
documentation and recordkeeping, if any, in federal, state or local 
regulation of hazardous materials or dangerous substance handling.
    3. Discuss what effect, if any, the removal of the hazardous and 
dangerous materials documents exception in section 103(b)(3) from ESIGN 
Act would have on the ability of state and federal agencies to perform 
their missions.
    4. What effective means of hazard communication would be available 
if a paper copy of the hazardous materials shipping paper is eliminated 
or made optional?
    5. Given the current developments in Federal regulations with 
respect to electronic transactions in this area, is it necessary to 
retain the hazardous materials exception to the ESIGN requirements? If 
so, what is the interest that this exception continues to serve or 
protect?
    6. Given the current developments in State regulations with respect 
to electronic transactions in this area, is it necessary to retain the 
hazardous materials exception to the ESIGN requirements? If so, what is 
the interest that this exception continues to serve or protect?
    7. If the ESIGN Act continues to except hazardous materials, 
pesticides, and other toxic or dangerous materials shipping documents 
from the ESIGN Act requirements, how will that impact EPA's electronic 
hazardous waste manifest proposed rule?
    Please provide copies of studies, reports, opinions, research or 
other empirical data referenced in the responses.

    Dated: August 28, 2002.
Kathy D. Smith,
Chief Counsel, National Telecommunications and Information 
Administration.
[FR Doc. 02-22349 Filed 8-30-02; 8:45 am]
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