6560-50-P
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 262, 263, 264, 265, and 271
[EPA-HQ-OLEM-2016-0177; FRL-9965-27-OLEM]
RIN 2050-AG80
Hazardous Waste Management System; User Fees for the Electronic Hazardous Waste Manifest System and Amendments to Manifest Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection Agency (EPA or the Agency) is establishing by this regulation the methodology the Agency will use to determine and revise the user fees applicable to the electronic and paper manifests to be submitted to the national electronic manifest system (e-Manifest system) that EPA is developing under the Hazardous Waste Electronic Manifest Establishment Act. After the e-Manifest system's implementation date, certain users of the hazardous waste manifest will be required to pay a prescribed fee for each electronic and paper manifest they use and submit to the national system so that EPA can recover the costs of developing and operating the national e-Manifest system. This final rule also announces the date when EPA expects the system to be operational and available to users. EPA will begin accepting manifest submissions and collecting the corresponding manifest submission fees on this date.
	In addition, this action announces final decisions and regulations relating to several non-fee related matters that were included in the proposed rule. This includes modifying the existing regulations to: allow changes to the transporters designated on a manifest while the shipment is en route; describe how data corrections may be made to existing manifest records in the system; and amend the previous e-Manifest regulation (the One Year Rule) to allow the use, in certain instances, of a mixed paper and electronic manifest to track a hazardous waste shipment.
DATES: This final rule is effective on June 30, 2018. This final rule is being published with an accelerated effective date to coincide with the launch of the e-Manifest system on June 30, 2018. On that date, EPA will begin collecting fees to recover the costs of developing and operating the system.

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-HQ-OLEM-2016-0177. All documents in this docket are listed in the www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information for which disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically at www.regulations.gov or in hard copy at the EPA Docket Center Reading Room. Please see https://www.epa.gov/dockets/epa-docket-center-reading-room or call<PHONE_NUMBER> for more information on the Docket Center Reading Room.
FOR FURTHER INFORMATION CONTACT: Richard LaShier, Office of Resource Conservation and Recovery,<PHONE_NUMBER><EMAIL_ADDRESS>or Bryan Groce, Office of Resource Conservation and Recovery,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
	This rule affects those entities required to use the hazardous waste manifest, a regulated universe that includes approximately 80,000 federally regulated entities, and an equal or greater number of entities handling state-only regulated wastes in at least 45 industries and is expected to result in a net cost savings for them amounting to $66 million per year, when discounted at 7% and annualized over 6 years. Further information on the economic effects of this action can be found in section IV of this preamble. These industries are involved in generating, transporting, and receiving several million tons annually of wastes that are hazardous under Subtitle C of the Resource Conservation and Recovery Act (RCRA), or, are regulated by states and also are subject to tracking with the RCRA hazardous waste manifest. EPA estimates that these entities currently use between three and five million hazardous waste manifests (EPA Form 8700-22) and continuation sheets (EPA Form 8700-22A) to track RCRA hazardous and state-only regulated wastes from generation sites to off-site receiving facilities. The affected entities include hazardous waste generators, hazardous waste transporters, and owners or operators of treatment, storage, and disposal facilities (TSDFs), as well as the corresponding entities that handle state-only regulated wastes subject to tracking with the RCRA manifest.
	However, the user fee obligations that are the primary focus of this final rule will mostly affect a subset of these regulated entities, particularly, the several hundred commercial RCRA TSDFs and the corresponding receiving facilities for state-only regulated wastes under RCRA manifests. As explained in section III.A. of this preamble, this final rule focuses the payment and collection of e-Manifest related user fees on these several hundred commercial TSDFs and state-only waste receiving facilities because EPA concludes that this is the most effective and efficient means for collecting user fees via the e-Manifest system. The final rule action includes a tentative fee schedule for the initial two years of system operations, based on the most current projections of program costs available to the Agency at the time of development of this final rule action. EPA will update the tentative fee schedule with a final fee schedule for the initial two years of system operations when we obtain more complete program cost data, and we will publish the final fee schedule to the e-Manifest program's web site 90 days prior to the system launch. The affected entities and categories include, but are not necessarily limited to:
                               NAICS Description
                                  NAICS Code
                   Examples of Potentially affected Entities
Transportation and Warehousing
48-49
Transportation of hazardous waste
Waste Management and Remediation Services
562
Facilities that manage hazardous waste

	This table provides a guide for readers regarding the entities that will be regulated by this action. The table lists the types of entities that EPA is aware to be involved in the activities affected by the RCRA manifest and regulated by this action. Other types of entities not listed in this table also could be regulated by this final rule. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in title 40 of the CFR parts 260, 262, 263, 264, and 265. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the FOR FURTHER INFORMATION CONTACT section.
B. What action is the Agency taking?
	The Agency is publishing its final rule action announcing requirements that establish the methodology and process that EPA will use to determine and revise the e-Manifest user fees that EPA has determined to be necessary to recover the costs of developing and operating the national e-Manifest system. These include the costs of processing data from both electronic and paper manifests that will be submitted to the national e-Manifest system after the system's implementation date. The Agency also is announcing final decisions on several non-fee related proposals that affect the use of the manifest and manifest data quality, including changes to designated transporters during transportation, a process for manifest data corrections, and the circumstances under which EPA will allow a "hybrid" or mixed paper/electronic manifest to be used to track a specific shipment.
C. What is the Agency's authority for taking this action?
	The authority to issue this rule is found in sections 1002, 2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901, 6906 et. seq., 6912, 6921-6925, 6937, and 6938, and as further amended by the Hazardous Waste Electronic Manifest Establishment Act, Public Law 112-195, section 6939g.
D. Effective date
	This final rule will be effective on June 30, 2018, the date on which EPA plans to launch and begin the operation of the e-Manifest system. This is the date when EPA will implement all e-Manifest Act regulations, including the requirements of this final rule, and the requirements of the One Year Rule that EPA issued on February 7, 2014.
      Under 40 CFR 3.2(a)(2), electronic reporting of documents required under Title 40 of the Code of Federal Regulations (CFR) may occur after EPA has first published a document in the Federal Register announcing that EPA is prepared to receive, in electronic form, documents required or permitted by the identified part or subpart of Title 40. By this final rule action, EPA is announcing that it is prepared to receive electronic hazardous waste manifests, as well as certain paper manifest copies that continue in use after the e-Manifest system's implementation date, through the national e-Manifest system. The electronic manifests will be accepted by e-Manifest as the electronic document substitutes for the paper manifest and continuation sheet forms (EPA Forms 8700-22 and 8700-22A) that are described in 40 CFR part 262, subpart B (hazardous waste generators), 40 CFR part 263, subpart B (hazardous waste transporters), and subpart E of 40 CFR parts 264 and 265 (owners and operators of hazardous waste treatment, storage, and disposal facilities). The implementation and compliance date on which EPA plans to begin receiving these electronic manifest and related paper manifest copies is June 30, 2018. This is the date that EPA expects to begin e-Manifest system operations, and begin both the collection of manifests and the collection of user fees for manifest submissions required under this final rule. EPA is also clarifying that the June 30, 2018, implementation date for e-Manifest is limited to the collection of domestic hazardous waste manifests and domestic shipments of state-only regulated waste subject under state law to the RCRA manifest. EPA will not begin the collection of export manifests described in subpart H of 40 CFR part 262 on the June 30, 2018, e-Manifest system implementation date. EPA will announce the implementation and compliance date for the electronic submission of export manifests in a separate notice to be issued in the future, when EPA is ready to collect those documents electronically and assess the appropriate fee for their processing. Until that occurs, export manifests should continue to be completed as paper documents.
II. Background
	EPA published a detailed background discussion providing context for the e-Manifest User Fee rulemaking in the proposed rulemaking action. See 81 FR 49072 at 49074-76 (July 26, 2016). EPA incorporates that detailed background discussion by reference for purposes of this final rule, and refers readers to that proposed rulemaking rather than reprinting all of it in this final rule document. For this action, EPA will summarize key points from the earlier background discussion:
 In 2012, Congress enacted the Hazardous Waste Electronic Manifest Establishment Act (e-Manifest Act). The e-Manifest Act required EPA to establish a national electronic manifest system, the development of which would be initially funded by annual appropriations, and ultimately funded by user fees, which would both offset the system's development costs, as well as the costs of operating, maintaining, and upgrading the system.
 The e-Manifest Act further required EPA to develop implementing regulations for electronic manifesting within one year of enactment, and to establish a nine-member System Advisory Board to make recommendations to EPA on the performance of the system.
 Section 2(c) of the e-Manifest Act conferred broad discretion to EPA to impose on users of the system "such reasonable service fees as the Administrator determines to be necessary" to pay all system related costs, including the costs of processing data from any paper manifests that continue to be used after the system implementation date, as the e-Manifest Act allows users the option to continue to use paper manifests. This is the principal source of statutory authority for this action and its user fee methodology.
 Section 2(d) of the e-Manifest Act authorized the establishment of a special System Fund in the U.S. Treasury for the deposit of e-Manifest user fees. Funds deposited in the System Fund may be spent by EPA for system related costs to the extent provided in annual appropriations acts, but such funds can only be spent on e-Manifest related costs.
 EPA issued its first implementing regulation on electronic manifesting on February 7, 2014 (79 FR 7518  -  7563). This regulation, referred to as the "One Year Rule" because of the e-Manifest Act's mandate to publish the regulation within one year of enactment, established the legal and policy framework for the use of electronic manifests, and prescribed the conditions under which electronic manifests are the full legal equivalent of paper manifest forms for all RCRA purposes. The One Year Rule also codified key scope and consistency provisions included in the e-Manifest Act. The One Year Rule did not address e-Manifest user fees, instead deferring regulatory action on user fees until this separate e-Manifest User Fee rulemaking.
 EPA relied extensively on two Federal guidance documents on user fee design to develop its e-Manifest User Fee methodology: (1) OMB Circular A-25, a memorandum to Executive Departments and agencies addressing "user charges," and (2) user fee design guidance found in the United States Government Accountability Office (GAO) Report No. GAO-08-386SP, Federal User Fees, A Design Guide, (May 2008).
 The OMB Circular A-25 guidance was relied upon substantially for the following principles used in formulating the final rule user fee methodology: (1) the imposition of user fees on those recipients of the special benefits from federal activities, but not recipients of incidental benefits; (2) the requirement that user fees should accomplish full cost recovery; (3) the explanation of the various types of direct and indirect costs that can be recovered by user fees; (4) the general policy that user fees be instituted through the promulgation of regulations; and (5) the policy that user fees be reviewed biennially, to provide assurance that fees are adjusted to reflect changes in program costs.
 The GAO Federal User Fees Design guide also was heavily relied upon in developing the rationale for this final rule user fee methodology, particularly with respect to: (1) collecting fees so as to strike an appropriate balance between ensuring compliance with fees and minimizing administrative costs; (2) the manner of reviewing and updating user fees so they remain aligned with actual program costs and activities, and are adjusted for changes in program costs; and (3) balancing several key outcomes involved in fee design, including: the economic efficiency of the program's user fees; the equity of the fee system in ensuring that beneficiaries pay their fair share while not disregarding their ability to pay; the adequacy of resulting revenues to pay all known program costs and to keep pace with inflation and other changes to program cost; and the administrative burden of the fees, including the balancing of the fee compliance costs with the costs of their collection and enforcement.
III. Detailed Discussion of the Final Rule
A. Which users of manifests and manifest data will be charged user fees?
1. Background
      In addressing this issue in the proposed rulemaking, EPA acknowledged that there were two distinct classes of users who might become involved with the e-Manifest system. First, there are the regulated community members, e.g., the hazardous waste generators, transporters, and receiving facilities (e.g., RCRA TSDFs) who are required to use the manifest in connection with tracking a hazardous waste shipment in which they are involved and are named as one of the handlers on the manifest. Second, there are the data consumers, e.g., members of the public or state and local governments that might wish to access e-Manifest in order to obtain information about wastes and shipments of interest to them in their capacity as a data consumer, but not as a member of the regulated community. Since the beginning of the planning for e-Manifest, EPA has indicated that it considered public access and transparency important functions of an e-Manifest system. EPA has planned to develop a public facing module in e-Manifest to provide such data access, with certain restrictions on that access. However, the interest in public access to data is a secondary interest, and it is clear that the regulatory community users are the primary community of interest served by e-Manifest, and that they obtain the primary services and benefits from the system.
	In the notice of proposed rulemaking, EPA proposed that the primary beneficiaries of
e-Manifest  -  the regulatory community users within the definition of "user" in the e-Manifest Act  -  would at a threshold level be the community of users potentially subject to user fee obligations. Thus, for this initial level of fee eligibility, EPA proposed to limit the imposition of user fees to the members of the regulatory community that must use the RCRA manifest, as a matter of regulatory compliance under federal or state law, for tracking the off-site shipments of hazardous waste or state-only regulated waste between generation sites and the facilities where such wastes are received for management. EPA did not propose to impose fees on the community of data consumers, i.e., members of the general public, accessing the system only to obtain data about wastes and waste shipments of interest to them. In the proposed rule, we explained that excluding the public from user fee payments was consistent with OMB Circular A-25 policy to not charge incidental beneficiaries of a service a user fee. We also explained that this proposal was motivated by the desire to avoid the large administrative burden of establishing payment accounts for all those members of the public who might access the system, and of processing payments for such a large and potentially diverse community. EPA believes that the costs of providing data access to the public would be fairly modest relative to the cost of servicing the regulatory community. The funding result under the proposed rule would thus have the costs of providing the public with access to data funded as an incremental increase in the fees charged to the regulated users.
	As a second proposal on the scope of fee obligations, EPA proposed to further restrict the payment of e-Manifest fees to the approximately 400 RCRA receiving facilities (TSDFs) that receive waste from off-site, as well as the corresponding receiving facilities of state-only regulated wastes tracked under RCRA manifests under state law. EPA explained in the notice of proposed rulemaking (NPR), that it considered the submission of the final, signed manifest to the e-Manifest system by the receiving facility designated on the manifest to be the primary "billable event" in the e-Manifest system that would give rise to a user fee obligation. The effect of this second aspect of the proposal would be to limit fee obligations and payments to the receiving facilities on manifests, and to generally exclude the other regulatory community "users" from fee payment obligations. This aspect of the proposed rule was premised on the goal of simplifying the fee system, and avoiding the potentially large administrative burden of establishing payment accounts and collecting fee payments from 100,000 or more generators or other regulated users. It was assumed that the receiving facilities assessed these fees could choose to pass these fees through to the generator customers as a part of their service agreement, thus balancing the equities and burdens of the fee system without EPA's further intervention.
2. Comment Analysis
	On the issue of public access and its funding, we received numerous comments from state agencies supporting the exclusion of states and the general public from the requirement to pay fees, and supporting the imposition of e-Manifest fees on the regulated users of the system. However, there were several comments from hazardous waste TSDFs and their trade organizations objecting to the proposed rule's approach to funding public access through an incremental increase in these facilities' fees. These TSDF commenters argued that the e-Manifest Act's definition of "user" was intended to limit system access to the regulated community and not afford access to the public. The TSDF commenters suggested that EPA should be responsible for funding public access through another means or another EPA appropriation, perhaps treating public access requests through the Freedom of Information Act or FOIA. As a final matter, several of these TSDF commenters also questioned EPA's assumption that the cost of public access would be modest.
	On the issue of the proposed "billable event," all commenters supported the proposal limiting fee obligations to the receiving facilities designated on the manifest, and classifying the submission of the final copy of the manifest signed by the receiving facility as the primary billable event in the system. The states, generators, and receiving facilities that commented on the proposed rule all supported EPA's rationale that the balancing of administrative efficiency and simplifying the fee payment system justified limiting the fee obligations to the manifest's receiving facilities. To make their support of this proposal clearer, several of these commenters suggested that EPA remove from the existing part 262 (generator) and part 263 (transporter) regulations all vestiges of regulatory language from the first e-Manifest rule suggesting EPA might impose user fees on generators and transporters. Several commenters also suggested that EPA should be consistent in drafting the final rule, and avoid using the terms TSDF, receiving facility, and designated facility interchangeably in the regulatory language, as these terms do not have the same scope of coverage.
	Finally, in connection with the proposed rule's discussion of the public access issue and the proposed rule's focus on receiving facilities for the rule's fee obligations, EPA received several additional comments raising significant issues for the Agency to consider.
	A RCRA receiving facility and the Department of Defense submitted comments raising the concern that unfettered public access to e-Manifest might enable data mining from the system by those with malevolent intent. These comments raised a concern that those conducting data mining for illicit purposes could discern information about particular wastes involving chemicals of concern, or about the sites managing them, or patterns in the movement of wastes that could be weaponized or otherwise vulnerable if diverted. One commenter suggested there should be a homeland security basis for excluding public access to such information, and identified the homeland security list of chemicals of interest in 6 CFR part 27, Appendix A as a resource that might be helpful in excluding hazardous waste and manifest data potentially posing a Homeland Security risk. The Department of Defense also raised a concern that generator site information and the aggregate waste information gleaned from e-Manifest could in some instances constitute classified information.
	In addition, EPA received several helpful comments that pointed out some weaknesses or challenges that will arise from the proposed rule approach and its focus on the final manifest submissions by receiving facilities as the billable event that will trigger fee obligations. As one example of such a challenge, several industry and state agency commenters noted that there may be significant numbers of receiving facilities, particularly those facilities receiving state-only regulated wastes, which lack RCRA permits and lack EPA Identification Numbers. Examples cited in the comments were facilities managing industrial wastes, used oil, wastes regulated as special wastes by the states, or conditionally exempt small quantity generator (CESQG) wastes regulated more stringently by states and subject to manifests under state law. If EPA is intending to track the billable manifests from receiving facilities by keying on the EPA Identification Number of the receiving facility, EPA will need to issue unique identification numbers to these facilities or otherwise address how these receiving facilities and their manifests will be tracked uniquely and billed for services in e-Manifest.
	Other helpful comments received in response to the proposed billable event were several industry and state agency comments noting that there were two other types of waste shipment transactions with manifests that did not lend themselves to the proposed approach of billing the receiving facility for the manifest. The two transaction types cited as posing particular challenges were: (1) rejected wastes returned under manifests to generators, as the "receiving facility" for such return shipments are generators and not the conventional permitted facilities (e.g., RCRA TSDFs); and (2) hazardous wastes exported from the U.S., as the manifests for exported hazardous wastes are not received by a domestic receiving facility, but are instead received by foreign consignees that are beyond the jurisdiction of the U.S. to compel a final manifest submission and fee payment. These commenters questioned how EPA would address these transactions in the final rule.
3. Final Rule Decisions
a. How will public access to data be funded?
	In this final rule, EPA is sustaining the proposed rule's position that public access is an incidental benefit of the system, and that the regulatory community users obtain the primary and major benefits of e-Manifest services. Since members of the public are at best incidental beneficiaries, EPA has decided not to charge members of the public a fee for access to manifest data from the public facing module of e-Manifest. This decision is consistent with the policy announced in OMB Circular A-25, which generally excludes incidental beneficiaries of services from service charges, and instead requires the primary beneficiaries to cover these costs. Therefore, as we proposed in the July 2016 NPR, the regulatory community users  -  the primary beneficiaries of e-Manifest  -  will fund the costs of public access through an incremental increase in their user fees. EPA concludes that this policy best effectuates the program's transparency goal with respect to manifest data, and avoids discouraging the public's access by the imposition of a fee on such access. EPA remains convinced that the incremental increase in users' fees to fund public access will be modest. This further focuses cost recovery and collections on the several hundred receiving facilities, thereby avoiding the complexity and administrative burden of attempting fee collections from members of the public.
b. Which regulatory community users will pay fees?
      Second, for this final rule, EPA has decided to sustain the proposed rule's approach of focusing the fee payment obligations of the regulatory community users on only the receiving facilities named on manifests. The final rule therefore refines the user fee obligation by excluding generators, transporters, and entities other than receiving facilities designated on manifests from the rule's user fee requirements. The commenters on the proposed rule expressed unanimous support for this proposal, and EPA concludes that it is much more practical and efficient administratively to focus fee collections and payments in the system on the several hundred hazardous waste and state-only regulated waste receiving facilities, and to define the "billable event" giving rise to a fee obligation in the system as the submission of the final manifest copy signed by these receiving facilities.
      EPA is further clarifying that with respect to the continued use of paper manifests, the preferred means of submission to the system by receiving facilities is a data file (e.g., JAVA Script Object Notation (JSON) file) presenting the data from these paper manifests. Such data file submissions will eliminate much of the manual processing of these manifests, including opening and sorting mail, and the very labor intensive process of manually keying data from paper manifests into the data system. Receiving facilities may submit their data files from completed, ink signed paper manifests either individually or as a batch submission. Whether submitted individually or in a batch upload, the receiving facility must also submit an image file of each manifest that is included in the data file upload. At the time of submission of the individual or batch file upload, a responsible representative of the receiving facility must make a CROMERR compliant certification that to the representative's knowledge and belief, the data and images submitted are accurate and complete, and that the facility acknowledges that it is obligated to pay the appropriate per manifest fee for all the manifests included in the submission. These data file upload requirements are spelled out in §§ 264.1311(c) and 265.1311(c) in this final rule.
c. How will the rule address homeland security risks?
	The Agency acknowledges the several public comments raising the concern that unfettered public access to manifest data might enable those with malevolent intent to obtain data from e-Manifest that might pose a homeland security risk. EPA believes that the homeland security risk posed by public access to e-Manifest is minimal for the majority of manifested hazardous waste shipments, because few hazardous wastes are likely to be found in forms and circumstances that would make them attractive to terrorists, and because public access to data through e-Manifest will in all cases be delayed for a period of 90 days after receipt of hazardous wastes at the receiving facility designated on the manifest. However, commenters indicated that the 90-day delay in public access might not mitigate all such security risks, since even with delayed access to manifest data, a terrorist with system access could perhaps discern shipment patterns for particular chemical wastes of concern and the generators and facilities handling them. Thus, commenters suggested that EPA take a more proactive position to guard against homeland security risks posed by data disclosures from e-Manifest. In particular, as a means to identify RCRA hazardous waste shipments that might pose a security risk, the commenters suggested that EPA utilize the Department of Homeland Security's (DHS's) Chemicals of Interest, a screening tool for chemical security risks that DHS has published in Appendix A to its 6 CFR part 27 regulations pertaining to the security of the nation's chemical facilities.
	EPA consulted with the DHS to determine if the information that will be publicly accessible from e-Manifest poses a significant chemical security risk, and if so, the action the Agency should take to mitigate that risk. DHS concluded that there was a plausible chemical security risk posed by unrestricted public access to data in e-Manifest, and the agencies collaborated on a strategy to mitigate that risk.
	EPA believes that the Appendix A Chemicals of Interest list and screening tool can be applied to the hazardous wastes and facilities covered by DHS's chemical security regulations to aid EPA in identifying a solution to the security concerns raised by commenters. Rather than duplicating the efforts of DHS in this area, or perhaps developing a conflicting approach, EPA is relying upon the expertise of DHS, the DHS chemical security regulations, and the DHS Chemicals of Interest (COI) appendix to flag those manifested waste shipments and the data that should be withheld from public disclosure by e-Manifest to avoid the release of information that could plausibly be used to harm the homeland.
	First, it is significant that DHS has previously determined that the security risks addressed in its 6 CFR part 27 regulations are only potentially presented by a narrow subset of RCRA solid and hazardous wastes. In promulgating the Appendix A COI list in November 2007, DHS determined that most RCRA solid and hazardous wastes would not be found in forms or circumstances that would make them attractive to terrorists, with the result that most RCRA wastes are excluded from the COI screening process for chemical security risks. See 72 FR 65397 at 65398 (November 20, 2007). However, DHS concluded that a subset of RCRA hazardous wastes  -  the so-called "P-List" and "U-List" wastes consisting of the discarded commercial chemical products and related wastes identified in 40 CFR 261.33  -  should be subject to screening as COI for chemical security risks. DHS concluded that only these P-List and U-List wastes are covered by the 6 CFR part 27 screening process for COI, because the discarded commercial chemical products, off-specification species, and other such wastes were likely to be just as attractive to terrorists as the chemical products themselves. Id. Thus, our consideration of homeland security risks potentially posed by public access to manifest data should, in the first instance, be limited to a consideration of those manifests for the P-List and U-List wastes with chemical names that also appear on the list of COI in the Appendix A to the DHS's 6 CFR part 27 regulation.
	Under the DHS chemical security regulations, the COI Appendix is used as an initial screening tool for identifying high risk chemical facilities. The COI Appendix identifies for each listed chemical substance a Screening Threshold Quantity (STQ) and minimum concentration that apply to each of several modes of vulnerability (release, theft, sabotage) and the related security issues (toxic, flammable, or explosive releases; theft enabling use of chemical weapons or weapons of mass effect; sabotage, etc.). The purpose of the COI list and the STQs published for the relevant security issues is to screen for those chemicals that if released, stolen, diverted, and/or contaminated, have the potential to create significant human life and/or health consequences.
	Moreover, the presence of a COI at a facility at quantities exceeding the STQ is not itself a trigger for whether that facility is a "high risk" or "covered facility" within the meaning of the part 27 DHS chemical security regulations. Rather, the presence of a COI chemical at or above the STQ is the threshold for determining when a facility must be evaluated further by DHS for the chemical security risks at that facility. Exceeding an STQ triggers the requirement for the facility to submit to DHS a Top-Screen document. Only after DHS has gathered additional information through the Top Screen will DHS make a determination whether the facility handling that COI chemical is a "high risk" facility and must comply with the substantive requirements of the Part 27 regulations. These requirements include the preparation and submission to DHS of a Security Vulnerability Assessment and a Site Security Plan.
	While EPA would ideally have the information available to withhold from public disclosure the manifest associated only with "high risk" facilities, the Agency is not in a position to determine whether particular facilities associated with P-List and U-List wastes that are COI are high risk for chemical security issues. However, in order to be protective respecting any plausible chemical security risk at facilities with manifested hazardous wastes, the Agency will apply the COI list screening tool broadly to prevent access to information on chemical wastes by those who might have an intent to harm the homeland.
	Therefore, in today's final rule, EPA is clarifying that the e-Manifest system will withhold from public access specific data from those manifests related to chemical facilities that handle P-List and U-List wastes that are also included on the Appendix A COI list. For manifests that include such chemical wastes, the e-Manifest system will withhold from disclosure to the public-facing module of e-Manifest the following data items: the chemical waste name and specific P- or U-List waste code, the quantity of such wastes included in the shipment, and the date of the shipment. The shipping description for these chemical wastes will instead bear the generic information "P-List or U-List waste" in the public facing e-Manifest system. After consultation with DHS, the two agencies have concluded that these measures will be effective to prevent a terrorist from obtaining information on which facilities might possess or manage hazardous wastes that are COI at quantities of concern, as well as prevent such a person from ascertaining information about shipment dates and patterns of shipments involving these chemical wastes of interest.
	While the withholding of this limited data from a limited subset of manifests may appear at odds with the Agency's transparency goals for e-Manifest, EPA believes that the mitigation strategy described here represents a reasonable accommodation with homeland security interests, and is a prudent response to the concerns raised by commenters and DHS officials.
d. How will the rule address state regulated facilities lacking EPA Identification Numbers?
	EPA acknowledges the comments identifying the problem posed by tracking and collecting payments from state regulated receiving facilities that currently lack EPA identification numbers. The e-Manifest system will be programmed to track manifest activity and bill facilities for their activities with reference to the identification number of the receiving facility listed on each manifest. Therefore, prior to or at the time of system implementation, EPA will need to identify a means by which such facilities can obtain unique identifiers that they can list on their manifests in the EPA identification number field.
	As part of the e-Manifest system development, EPA is including a so-called "non-handler IDs" initiative aimed at ensuring that each site has its own unique ID to use with its electronic manifests. Further, this initiative is aimed at ensuring that each receiving facility entered in e-Manifest will have a unique identity for tracking and billing purposes. Sites that are listed in Item 8 of manifests as designated or receiving facilities must obtain a handler ID from their state or EPA and be listed in the RCRAInfo data system. These efforts will require considerable outreach and cooperation between EPA, the states regulating these facilities, and the receiving facilities to maximize the inclusion of these sites in the system and ensure the proper billing of their shipments.
e. How will the rule address out-of-state shipments of non-RCRA wastes?
	The e-Manifest Act extends the scope of the e-Manifest program to wastes subject to manifest tracking under federal RCRA or under state law. Some state programs regulate more wastes than EPA regulates federally under its Subtitle C regulations, and these additional non-RCRA wastes are often referred to as state-only regulated wastes or as "broader in scope" wastes to indicate the more extensive coverage of the state programs. These state-only regulated, non-RCRA wastes can present manifest implementation and tracking challenges when shipments involving these wastes cross state lines. While any non-RCRA waste subject to a manifest under state law in the destination state should be accompanied by a manifest in the destination state and thus would be required by this final rule to be submitted by the receiving facility to the e-Manifest system, the compliance situation is not as straightforward for other out-of-state shipment scenarios. In particular, the manifest requirements may be less clear for waste shipments that originate in a state with more extensive or "broader in scope" coverage and that are then shipped out-of-state to a destination facility in a state where the waste is not regulated as hazardous and does not require a manifest under the law of the destination state. Prior to e-Manifest, EPA was not significantly involved in the collection of manifests, and the question of supplying manifest copies to states was governed exclusively by state law. EPA is aware from discussions with state regulators that it was at times problematic for the origination states to collect manifest copies from out-of-state receiving facilities, and that it was often difficult to ensure compliance with copy return requirements from facilities beyond the territorial jurisdiction of the origination state.
	Under the e-Manifest Act, however, any such jurisdictional barrier has been eliminated by the Congress. In section 2(h) of the Act, Congress prescribed a self-implementing provision that speaks directly to the obligation of receiving facilities to close out and return manifests to the e-Manifest system, if the waste being shipped for management is subject to a manifest in either the origination state or the destination state. This provision of the Act provides that if either state's law requires that the waste "be tracked through a hazardous waste manifest, the designated facility that receives the waste, shall, regardless of the State in which the facility is located --
(1) Complete the facility portion of the applicable manifest;
(2) Sign and date the facility certification; and
(3) Submit to the system a final copy of the manifest for data processing purposes."
Thus, under the Act, for shipments that cross state lines, a designated or receiving facility that receives waste shipments accompanied by a manifest, and that manifest is required for the tracking the waste shipment by either the law of the origination or destination state, then the receiving facility must attend to that manifest, must close it out by completing the facility portion and signing and dating the facility certification on the manifest, and must submit the signed, final copy of that manifest to the e-Manifest system for processing. These requirements apply to receiving facilities under federal law even if the law of the destination state would not require a manifest for the wastes involved, and would not require the facility to take any action with respect to the manifest required by the origination state. States that desire the return copies of these manifests can therefore rely upon this federal provision that ensures consistency in the tracking of these shipments to their completion, and they will not be as dependent on attempts to extend their state laws in an extraterritorial fashion to out-of-state entities. Receiving facilities can know that their supplying one final copy to the e-Manifest system will satisfy any and all requirements for return copies to tracking states, wherever they may be situated.
	While the provisions of section 2(h) of the e-Manifest Act are self-implementing, EPA is including an explanation of this statutory provision in this final rule so that regulated entities will receive ample notice of its requirements. EPA is including this summary of section 2(h) under this preamble topic, because the effect of this statutory provision is to classify the out-of-state waste shipments subject to manifest tracking in either the origination state or destination state as a mandatory type of manifest submission to e-Manifest, and thus another type of "billable event" within the meaning of this final rule. In other words, receiving facilities subject to this statutory provision affecting interstate waste shipments must submit the final manifest copies to e-Manifest, and pay the fee required by this final rule, based upon the type of submission.
	The Agency is codifying the exact terms of section 2(h) of the Act at 40 CFR 260.4. EPA has chosen to codify the statutory provision in the general applicability subpart of part 260, because we expect that many of the state-regulated facilities that will be affected by the copy submission requirement of section 2(h) are not RCRA-permitted TSDFs, and thus it would not be appropriate to include the codified text of section 2(h) of the Act in the part 264 or part 265 regulations that prescribe the unit location and management standards for RCRA TSDFs. Part 260 is reserved for regulatory provisions of general applicability, so EPA has chosen to codify the manifest copy return requirement affecting interstate waste shipments at new § 260.4.
f. How will the rule address hazardous waste exports and return shipments of rejected hazardous wastes?
	The commenters who identified these two atypical shipment types raised valid points that the proposed rule approach of billing the receiving facilities upon submission of the final signed manifest did not lend itself well to the processing of hazardous waste export manifests and manifests for rejected hazardous wastes that are being shipped as returns to the generators of those wastes.
	With respect to hazardous waste export shipments, EPA is not including the tracking of export manifests described in subpart H of 40 CFR part 262 in the initial phase of e-Manifest system implementation. As EPA is not accepting the submission of export manifests to the system at this time, the Agency also is not requiring the payment of a fee in connection with export manifests. EPA's system planning and development efforts to date have been focused on the domestic manifest, as the domestic shipments are the dominant use case for the hazardous waste manifest. Moreover, EPA has not yet determined who in the export shipment chain of custody (i.e., primary exporter vs. transporter moving waste from U.S. or other entity) is best suited for making the submission of the export manifest to the system and paying the requisite processing fee; nor have we provided notice-and-comment opportunities for the exporters or other handlers involved with these shipments. Therefore, these determinations on export manifest submissions and the payment of e-Manifest fees for export manifests must await a future rulemaking connected with the planning for the next phase of e-Manifest implementation. EPA plans to consult the Advisory Board on future e-Manifest system enhancements and expansions, and the future inclusion of export manifests is a topic that the Advisory Board can help us address in our regular meetings with the Board. Until then, current arrangements for handling export manifests and tracking information on exports in other Agency tracking systems will continue.
	With respect to rejected hazardous waste shipments, EPA has addressed commenters' concerns in this final rule. With rejections, there are generally two possible outcomes: (1) the rejected wastes are re-shipped under a manifest that forwards the rejected wastes from the rejecting facility to an alternate receiving facility (typically, another RCRA TSDF) for management, or (2) the rejected wastes are re-shipped under a manifest from the rejecting facility as a return shipment back to the original generator of the waste.
	The first outcome discussed previously  -  the forwarding of rejected wastes to an alternate facility  -  is not unlike the conventional manifested shipment of a waste to a permitted facility for management. The key difference is that the rejected waste shipment originates with the rejecting facility rather than the generator. Otherwise, forwarded rejections are tracked through off-site transportation to another receiving facility (typically another permitted TSDF), which completes the tracking of the shipment by signing the manifest to certify to the receipt of the wastes at the designated facility. Since forwarding rejected wastes to an alternate facility is tracked on the manifest like conventional waste shipments to a receiving facility, EPA can treat them like conventional shipments insofar as the submission of the final copy to the system and the payment of the fee. Therefore, for rejected wastes that are forwarded to an alternate facility for management, the alternate facility that signs the manifest to certify the receipt of wastes must submit that final, signed copy to the system and pay the applicable per manifest fee for that submission.
	The unique circumstances surrounding the tracking of return shipments requires a different treatment in this final rule. For return shipments to generators, the rejecting facility is typically listed as the generator on the return manifest, while the original generator of the waste receiving its waste as a return is shown as the designated or receiving facility. EPA's billable event approach of charging the receiving facility of conventional shipments is premised on efficiency and avoiding the inclusion of hazardous waste generators in the e-Manifest payments system. It would conflict with this policy objective if the return shipments were then to implicate generators in the fee payment system, because they appear to be the receivers of return shipments. Therefore, in the final rule, EPA is announcing a different outcome applicable only to the return shipment scenario. For return shipments to generators, the rejecting facility is responsible for the payment of the fee for the return manifest, and the billable event for this fee obligation is the rejecting facility's submission of the original manifest signed by the facility to indicate the rejection and the submission of a copy of the return shipment manifest that will accompany the return shipment to the generator. Each rejection resulting in a return shipment must therefore include the submission by the rejecting facility of the original manifest signed by the rejecting facility and a copy of the return shipment manifest. Thus, the rejecting facility is paying the fee for the processing of the return manifest when it submits the return manifest, as the return manifest and its processing fee will not be collected by the system from the generator. By handling return shipments in this manner, the fee payments required in the system can be confined to the intended class of conventional, permitted receiving facilities. While it may seem irregular to charge the rejecting facility the e-Manifest fee for return shipments of rejected wastes, a chargeback by the facility to its generator customer is an option to balance the equities of the resulting fees. EPA concludes that this decision allocates the fees for rejected wastes most fairly, as the rejecting facility is charged the fee only in the exceptional circumstances of return shipments to a generator, while the alternate receiving facility will pay the fees for the more conventional scenario of wastes being re-shipped and forwarded to another receiving facility for management. Therefore, §§ 264.1311(a)(3) and 265.1311(a)(3) of the final rule will include among the manifest transactions that are subject to fees the submission by receiving facilities of manifests indicating a rejected waste and a return shipment to the generator of that waste.
g. What other changes are being made in response to comments?
	EPA accepts the comments asking for the removal of all vestiges in the existing regulations that suggest EPA could impose e-Manifest fees on generators under part 262 regulations or on transporters under part 263 regulations. These provisions were added during the promulgation of the One Year Rule, which codified quite generally the authority conferred under the e-Manifest Act to impose reasonable fees on all classes of manifest "users," a term which included hazardous waste generators, transporters, and owners or operators of facilities receiving wastes under manifests for management. Thus, EPA included in the One Year Rule provisions in parts 260, 262, 263, 264/265, and 271 so that the codified authority to impose user fees could reach all the possible users of the manifest. In the proposed User Fee Rule, 81 FR 49071, July 26, 2016, EPA stated that if the proposed rule's approach to charging only receiving facilities user fees were to be adopted in the final rule, EPA intended to eliminate from parts 262 and 263 those provisions that would appear to extend user fee authority to generators and transporters. (81 FR 49072 at 49078). Based on the supportive comments in the docket, and the Agency's continued belief that restricting fee collections to receiving facilities is sound policy, EPA is finalizing this policy and thus removing all references in parts 262 and 263 to user fee obligations for generators and transporters of hazardous waste. The result is the removal from the regulations of existing §§ 262.24(g) and 263.20(a)(8) addressing the imposition of user fees on generators and transporters, respectively.
	EPA also is accepting the comment noting that EPA had used the terms TSDF, designated facility, and receiving facility interchangeably in the proposed rulemaking, even though those terms do not have the same scope of coverage. The term TSDF connotes a facility having a RCRA treatment, storage, or disposal permit (or interim status), a class of facilities that is narrower than the scope intended by the e-Manifest Act. The commenter is correct in pointing out that the e-Manifest Act intends broader coverage than RCRA TSDFs, since it is clear that many receiving facilities of state-only regulated wastes lack RCRA permits, and yet are facilities that could receive manifested wastes under state law and thus be included in the coverage of the e-Manifest Act and the e-Manifest system. The commenter also is correct that EPA should rely on a term that expresses the intended scope of the e-Manifest Act, and use that term consistently in the final rule. In response, EPA is clarifying in this final rule that "receiving facility" is the term with the proper breadth that will capture all facilities regulated by the final User Fee Rule. The final rule will therefore focus on receiving facilities, and not TSDF or designated facility, as both of the latter terms are defined by current federal regulations more narrowly to include only the RCRA permitted facilities. The term receiving facility is sufficiently broad to include every type of federally regulated or state regulated facility that could receive a hazardous or state-only regulated waste covered by the e-Manifest Act.
	Consistent with the broad scope of coverage intended by the e-Manifest Act, the Agency is adding new authority in 40 CFR 260.5 to cover the receiving facilities of state-only regulated wastes that are not RCRA TSDFs. Under the final rule's § 260.5, facilities receiving state-only regulated wastes must comply with the requirements of § 264.71 on use of the manifest, the requirements of § 264.72 on manifest discrepancies, and the requirements of subpart FF of part 264 addressing the fee determination methodology, fee payment methods, fee dispute procedures, and other fee requirements. EPA is subjecting the state-only regulated waste receiving facilities to these requirements under § 260.5 so as to clarify the applicability of e-Manifest Act requirements to these state regulated facilities that are not RCRA TSDFs subject to part 264 or part 265.
	EPA is also revising the manifest printing specification by adding a § 262.21(f)(8) that will require all printed manifests and continuation sheets to bear a prominent notice to these facilities in the bottom margin of the designated facility copy. This notice will refer the facilities to the manifest instructions that explain their requirements to complete and sign all manifests so received, to submit these manifests to the e-Manifest system, and to pay to EPA the appropriate fee for the processing of these manifests.
B. What other transactions will be subject to user fees?
1. Background
	In the discussion earlier on the billable event in e-Manifest, EPA clarified that the primary transaction in e-Manifest that will give rise to a user fee obligation is the submission by the receiving facility of the final copy of the manifest signed by the receiving facility to certify to the receipt of the wastes or to any discrepancies related to the shipment. However, in the proposed rule, EPA proposed several additional types of manifest-related transactions that might warrant a fee, and solicited comment on others that might warrant a fee because of the complexity of some transactions (e.g., rejections, split loads, consolidations), or to deter activities that might incur large labor costs, such as a paper manifest premium or a charge for help desk encounters. EPA explained in the proposed rule that the several complex transactions did not warrant any premium fees, because these transactions -- rejected waste shipments, consolidated shipments, or split shipments -- tend to require additional manifests to be completed and submitted, so the fees related to the additional manifests would be collected as a matter of course without any premium fees. For help desk encounters, EPA concluded that a per encounter fee would discourage users from seeking assistance, and that it was more appropriate to aggregate help desk costs and recover these as operations and maintenance costs of the system to be shared by all manifests.
	In footnote 16 at 81 FR 49088 July 26, 2016, proposed rulemaking, EPA stated that it intended to impose a per page transactional fee for manifest continuation sheets. EPA believed the per page continuation sheet fee was justified, as these continuation sheets were separate forms styled similarly to manifest forms, and with many of the same data elements. Particularly when submitted as paper forms for processing, these continuation sheets could require the same sorts of manual processing steps and quality assurance/quality control measures as paper forms. Therefore, EPA stated in the proposed rule footnote that each page of a continuation sheet would generate the same fee as an individual manifest form.
      Also, in the preamble section of the proposed rule addressing possible fee premiums, EPA proposed a distinct transactional fee for sorting and returning certain types of extraneous documents that handlers might submit to the paper processing center with their manifests, and for correction submissions sent to the system by receiving facilities to enter corrections in the data-base of existing manifest records. See 81 FR 49072 at 49088, July 26, 2016. EPA proposed the extraneous document fee, because EPA had learned from several state agency partners that such extraneous documents were frequently encountered by states with tracking programs, and their sorting and return, if required, would incur considerable manual processing steps and resulting labor costs. It was believed that a premium fee charged for extraneous documents might deter these submissions and recover their related costs to the system.
	EPA proposed the corrections submission fee, because the proposed corrections process included in the proposed rulemaking action would require a certified submission by TSDFs to effectuate a change to previously entered manifest records. The proposed rule included a fairly structured submission requirement that would have required the receiving facility submitter to identify the data elements being corrected, to list both the data item as previously entered and as corrected, and then to certify that the data as corrected are complete and accurate. Such submissions would result in system-related costs being incurred, and it was believed that a corrections fee might induce facilities to improve the data quality of their initial submissions so as to avoid the costs of later correction submissions.
2. Comment Analysis
	EPA received many comments in response to the proposal regarding which transactions might warrant additional fees. Numerous industry and state commenters agreed that continuation sheets should not be charged a separate or per page fee. These commenters contend that most continuation sheets simply add additional waste streams or an additional transporter to the original manifest. Since continuation sheets carry the same tracking number as the original manifest to which they are appended, the commenters believed that only one fee should be charged for the original manifest and any continuation sheets attached to it.
	EPA received many comments from industry and state commenters contesting the proposed fee for sorting and returning stray or extraneous documents. Nearly all of these comments suggested that EPA should not be spending time and resources sorting extraneous documents and attempting to return them to senders, but should simply discard them. Commenters suggested that discarding the stray documents with no additional effort expended on them would not necessitate a separate fee. Several such commenters did question what the term "extraneous" meant in connection with non-manifest documents submitted to the system. For example, commenters asked if polychlorinated biphenyl (PCB) continuation sheets and land disposal restriction (LDR) certifications would be treated as extraneous, even though other EPA regulations may require them to be attached to manifest forms.
	Commenters generally agreed with EPA's assessment that help desk encounters should not be charged separate per encounter fees. These commenters agreed with EPA's statement in the proposed rulemaking that the help desk costs should be aggregated and shared by all manifests as operations and maintenance costs. Similarly, commenters agreed with EPA's assessment that a premium fee for paper manifest use was not warranted at this time, as the differential fee approach in the proposed rule would already assess higher fees for paper manifest submissions, because of their higher processing and labor costs. Commenters said that the differential fee proposal already created the appropriate incentives against the continued use of paper manifests without an additional premium fee.
	Many industry commenters and several state agency commenters submitted comments objecting to the proposed data correction fee, although a few commenters stated they would support a corrections fee focused on paper manifest submissions only. The commenters objecting to the proposed corrections fee, particularly RCRA TSDFs and their trade associations, argued that a separate fee levied on correction submissions would deter corrections being made, and would result in disincentives for data quality in the system. These commenters suggested that the system should encourage, not discourage, data corrections from the user community.
3. Final Rule Decisions
	EPA accepts the numerous comments objecting to a separate transactional fee for manifest continuation sheets. EPA is persuaded that most continuation sheets add minimal additional data to a manifest, typically several additional waste streams or an additional transporter, and that processing these additional data items will not incur significant costs to the system. Also, as these continuation sheets will be tracked by the same manifest tracking number displayed on the original manifest, it will not be practical to track and invoice users separately for continuation sheets. Any marginal costs that result in the aggregate from the processing of continuation sheets will be added to the system's operating and maintenance costs. Thus, the policy of charging a per sheet fee for continuation sheets, as suggested in the proposed rulemaking, 81 FR 49072 at 49088, footnote 16, July 26, 2016, will not be adopted in the final rule.
	EPA also accepts the numerous comments criticizing the proposal to charge a separate transactional fee for sorting and returning extraneous documents submitted to the system's processing center with paper forms. Commenters all expressed alarm that EPA would spend time and resources sorting and returning extraneous documents, and EPA accepts the commenters' reasoning that the proper outcome should be to simply discard, and not return, any such stray or extraneous items that are not in fact manifest related. Thus, under the final rule, there will be no fee assessed for processing extraneous documents, and any nominal costs from sorting and discarding these documents will be added to the system's operating and maintenance costs. Thus, in this final rule, EPA is not finalizing proposed §§ 264.1311(b)(1) or 264.1311(b)(1), which would have assessed fees for the processing of extraneous documents submitted with paper manifests to EPA's paper processing center.
	In relation to this issue, EPA will treat all documents that are not manifest related, i.e., a hazardous waste manifest form or a manifest continuation sheet, as extraneous and discard them under this rule's policy. PCB continuation sheets will be considered manifest related, as they are required to be attached to PCB manifests under federal law and contain specific details related to tracking specific PCB waste items that are being shipped off-site. However, EPA is not planning to process LDR certifications at the e-Manifest processing center, and any plans to process LDR-related documents in e-Manifest will await a later phase of system implementation. Such LDR certifications are currently intended to be delivered to the RCRA receiving facility the first time LDR-restricted wastes are shipped to a particular facility for management. Therefore, these LDR certifications should remain at these facilities and be kept among these facilities' records, and not submitted with manifests to the e-Manifest system. Until such time as EPA decides to process LDR-related documents in e-Manifest, EPA will discard any LDR certifications that are received by the system under this rule's policy of discarding extraneous documents.
	EPA also is accepting the comments objecting to the proposed rule's fee for data correction submissions. EPA is persuaded that a fee for such corrections might have the unintended effect of discouraging corrections and data quality. Moreover, as the great majority of correction submissions will be made electronically, their processing should entail nominal system costs, which EPA can include among the system's operation and maintenance costs to be shared by all manifests. Therefore, the final rule action does not finalize proposed §§ 264.1311(b)(2) and 265.1311(b)(2), which would have assessed fees for manifest data correction submissions by facilities. Other changes to the proposed data corrections process are discussed in section III.F of this preamble.
	Finally, the Agency acknowledges the general support in the comments for EPA's proposed rule rationale for not charging any additional transaction based fee for help desk encounters nor charging an additional premium fee for the use of paper manifests. EPA concluded in the proposed rule that the cost of help desk support should be aggregated and funded as an operating and maintenance costs shared by all manifests. EPA further explained that the proposed differential fee approach (see section III.C of this preamble) already included appropriate fee disincentives to discourage paper manifest use, without a premium fee being necessary or appropriate at this time. As commenters agreed with both of these proposals, and EPA believes both are backed by sound policy, EPA is affirming in this final rule that no transactional fee will be charged for help desk encounters. In addition, no premium fee (beyond the higher differential fee under the rule's fee formula) will be charged for the continued use of paper manifests.
C. What formula and methodology will be used to determine user fees?
1. Background
	In the July 26, 2016, notice of proposed rulemaking, EPA proposed what it described as a "differential fee formula." The proposed formula differentiated among the several types of electronic and paper-based manifests that would be submitted to the system for processing. The most significant feature distinguishing the processing of these different manifest types under the proposed fee formula was the marginal labor cost of processing the data from these manifests into the system. EPA developed an economic model to project the marginal labor costs for processing the several manifest types allowed to be submitted to the system. Paper manifests mailed to the system for sorting and manual data key entry would entail the greatest marginal labor costs to process. Paper manifests submitted as image files (e.g., Adobe Portable Document (PDF) files) would have marginally lower costs than mailed forms, but would still require manual data key entry steps. Paper manifests submitted as data files (e.g., JSON file with an image file attachment) would require even less manual effort to process. The lowest cost manifests to process would be the fully electronic manifests that originate in the system and are transmitted electronically with no manual intervention at all. The result of the proposed differential fee formula is thus a continuum of manifest fees, with fully electronic manifests involving the lowest costs and fees, with somewhat higher fees for paper manifests submitted as JSON or data files, with moderately higher costs for the paper manifests submitted as image files, and with the highest fees imposed on paper manifests mailed to the system.
	The key purpose of the fee formula is to determine the per-manifest fee to be charged manifest users. In simplest terms, the formula allocates all the system-related costs over all the manifests in use to arrive at a per manifest fee. In the July 26, 2016, proposal, EPA explained the nature of the several system-related cost categories that would be included in fee determinations with the proposed formula. See 81 FR 49072 at 49079. The major cost categories identified in the proposal were System Setup Costs, Operations and Maintenance Costs, and Indirect costs.
      The proposed rulemaking discussion of the differential fee formula broke down the system-related costs into two key sub-categories, System Procurement Costs and EPA Program Costs. These sub-categories are helpful to distinguish the information technology (IT) system acquisition and contracting costs from the other EPA Program Costs that the Agency would incur in planning, developing, operating, and managing the e-Manifest program, including the program's IT system and regulatory components. The EPA Program costs extend as well to the costs of conducting outreach, as well as establishing and operating the e-Manifest Advisory Board.
      In the fee formula methodology proposed by the Agency, the System Setup Costs are simply the System Procurement Costs and EPA Program Costs incurred by EPA before the e-Manifest system's operational date, whereas the Operations and Maintenance Costs consist of the System Procurement Costs and EPA Program Costs incurred after the operational date of the system. Because the e-Manifest Act requires that EPA reduce the user fees upon the recovery of all the system development costs, the proposed rule methodology would accomplish this by simply dropping the System Development Costs from the formula after five years, as EPA proposed an amortization period of five years for the recovery of the system development costs. 81 FR 49079, July 6, 2016. However, it is possible that the cost recovery period could extend beyond the five years, should, for example EPA find that actual O&M costs exceed estimates. EPA will closely track the actual progress in the recovery of system start-up costs, and will notify users accordingly when the reduced fees will take effect.
	In developing the proposed rulemaking, EPA considered three distinct fee models or options, which were discussed in detail in the proposed rule preamble. See 81 FR 49081  -  49083, July 26, 2016. All three options focused on the marginal labor cost of processing each manifest as the primary cost item contributing to the calculated fee, and to this marginal cost was added the result of dividing the System Setup and Operations and Maintenance by the numbers of manifests, with allowance also for amortizing the System Setup Costs over five years. The three fee models or options varied by how extensively the models tracked costs and manifest numbers by manifest type, and by how rigorously the models attempted to allocate the substantial paper manifest processing costs to only the paper manifests, rather than sharing these costs equally with the electronic manifests. Thus, the Agency considered a very simple "Average Cost Fee Option" that shared all costs equally among all manifests, paper or electronic, to arrive at an average marginal labor cost and the same average fee for all manifest types. A second or intermediate option was discussed as the Marginal Cost Differentiated Fee Option, which focused on the marginal labor cost of processing each manifest type (fully electronic, paper by mail, paper by image file, or paper by JSON file) as the key contributing cost item, but which allocated all other system setup and non-labor operating costs equally across all manifests. The third and most detailed option was the Highly Differentiated Fee Option, which also focused on the marginal labor cost of processing each manifest by type, but was more particular in tracking operation and maintenance costs and manifest numbers by their type, and in allocating the non-labor costs of operating the paper manifest processing center to only the paper manifests rather than having all manifest types share in these costs.
	In the July 26, 2016, proposed rulemaking, EPA proposed a combination of the second, Marginal Cost Differentiated Fee option and the third option, the Highly Differentiated Fee option. See 81 FR at 49083. Under the proposed fee model, EPA would initially implement the second, Marginal Cost Differentiated Fee Option, but would shift to the third or Highly Differentiated Fee Option if the Agency were to find that electronic manifest usage had not reached the programmatic goal of 75% after four years. EPA rationalized the proposal on the basis that it represented a useful compromise between promoting electronic manifest use, while also recognizing that there likely would be a transition from paper manifest use, to JSON data uploads from facility's paper manifests, and finally to fully electronic manifests and submissions. The intermediate step in the transition  -  receiving facility uploads of JSON data files generated from their paper manifests  -  would produce benefits and cost savings for industry and the Agency's national data system. Thus, EPA believed that the combination of the two fee models, with the pivot to the more aggressive fee model if necessary after a four-year period, would facilitate this transition and not have the potentially undesirable effect of penalizing paper manifest usage initially. EPA had previously espoused the 75% usage rate goal in our economic analyses for e-Manifest to project program savings and benefits, and we believe that the 75% adoption rate within four years for electronic manifests is a useful benchmark for measuring the success of the program and for incentivizing the transition to electronic manifests through this User Fee rule.
2. Comment Analysis
	There was general agreement among both industry and state commenters in support of the proposed rule's differential fee formula and its approach keyed to the marginal labor cost of processing the various manifest types into the national data system. The majority of these commenters indicated that the proposed formula was well explained, and that it provided a generally sound justification for the variability of fees among the different manifest types, that is, fully electronic manifests, and paper manifest submissions delivered by mail, by image file upload, and by JSON data file upload. These commenters also were satisfied that the proposed formula and the explanation in the proposal of the formula's cost categories and their sources were adequate to explain how the fees would be determined. Only one industry commenter expressed a dissenting view, and suggested that EPA had not substantiated the cost factors and resulting fees. This commenter expressed alarm at the level of fees published in the preamble's table showing the illustrative fees under the proposed formula, while another commenter criticized the table of illustrative fees for the range of possible fees it presented, and suggested that EPA should have been able to pin down the costs and resulting fees more closely by now.
	In addition, there was general support in the industry and state comments for the proposed rule including the fee pivot feature, so that fees for paper manifests would become more aggressive if electronic manifest usage goals were not met. However, commenters representing several large RCRA TSDFs, and their trade association, objected to the final rule codifying the 75% electronic usage goal in four years as the trigger for the pivot to the more aggressive fee formula. In the view of these commenters, the 75% in four years electronic usage goal was arbitrary and should not be locked into a regulation. Rather, these commenters would prefer that EPA refer the matter of when and under what conditions to raise fees to the e-Manifest Advisory Board for its recommendation.
	Few comments were received on the proposed five-year amortization period for the recovery of system development costs and their payback to the Treasury. One state agency commenter expressed support for the five-year amortization period as reasonable, but emphasized that amortized costs that accumulate in the System Fund must not be treated as a surplus, as the e-Manifest Act places limits on surplus accumulations in the System Fund. Another state commenter suggested the amortization period should be set at six years, for consistency with the Fee Rule's general reliance on a two-year cycle for publishing and revising fees.
3. Final Rule Decisions
	For this final rule, EPA is sustaining its proposed approach to the differential fee formula. The final rule provides that EPA will initially implement the Marginal Cost Differentiated Fee model, and then shift to the Highly Differentiated Fee model, if electronic manifest usage has not reached a 75% adoption rate after four years of system implementation. However, EPA will evaluate the circumstances of the electronic manifest adoption rate as we reach the four-year anniversary date for the e-Manifest system. At that time, EPA will publish a document indicating whether the 75% adoption rate has been realized and any facts or circumstances that might explain why the goal was met or not met. At the time EPA publishes this action, the Agency will either state that the fee pivot will go into effect on a date determined by EPA under the conditions of the final rule's fee pivot provisions, or, EPA will determine then to refer the matter of the adoption rate and fee impacts to the Advisory Board and seek the Board's recommendations on the issue. In this manner, EPA can still implement the more aggressive fee formula pivot under the terms of this final rule, rather than having to wait on the Advisory Board's advice and possibly another rulemaking. EPA believes that the more aggressive or Highly Differentiated Fee formula is an appropriate means of ensuring that paper manifests ultimately bear their full costs, and this is an important principle of user fee design. EPA only proposed the intermediate fee model to facilitate a transition to electronic manifests, and the Agency concludes that four years is a reasonable period of time to promote such a transition. Rather than an arbitrary pivot condition, the inclusion of the 75% adoption rate condition with the four-year transition period actually moderates the transition period condition. EPA could have required the pivot to the more aggressive formula with certainty after four years, without regard to the electronic usage rate. As moderated by the usage rate condition, if the 75% adoption rate is realized, the transition to the more aggressive fees after four years is in effect canceled and the intermediate model's fees would remain in effect. In addition, EPA notes that the fee increases resulting under the more aggressive fee formula are not prohibitive, e.g., about $2 more for a mailed paper submission and only a few cents difference per manifest for a JSON data upload from a paper form. EPA is not persuaded by comments suggesting that the proposed rule's fee pivot is unreasonable or arbitrary under the proposed conditions. Indeed, were the conditions not codified in the final rule, the decision to increase the paper manifest fees even moderately would involve the substantial delay of referring the issue to the Advisory Board, waiting on their report, and then having to initiate new notice and comment rulemaking to implement the change. The decision to raise fees under particular conditions is a decision that only the Agency, not an Advisory Board, can make. Therefore, EPA is issuing the final rule to include a transition to the Highly Differentiated Fee model after four years, if electronic manifest usage has not reached 75% by that time. However, we will decide at that time through a separate action whether the fee model pivot will go into effect by the terms of the final rule, or if we find there are extenuating circumstances such that it would be helpful first to seek the advice of the Board. In either case, EPA will announce its decision to either allow the fee pivot to go into effect, or to consult on the matter with the Advisory Board.
	EPA also is finalizing the rule with the proposed five-year amortization period for the recovery of system development costs. EPA received one comment supporting the proposed period as reasonable, and only one other comment suggesting the amortization period be extended to six years to align better with the proposal's two-year fee revision cycles. For the final rule, EPA is retaining the proposed five-year amortization period, and concludes that five years reasonably balances the Government's desire to promptly recover the system's development monies, while moderating the effect of the development costs insofar as keeping the resulting user fees at reasonable levels. By concluding the amortization period after the fifth year, the fee revision schedule that EPA publishes for the two-year cycle covering the fifth and sixth years will more palpably show the users the effect of the recovery of start-up costs in reducing the scheduled fees for the sixth year relative to the fifth year.
D. What indirect costs are considered by EPA in user fee determinations?
	In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA explained that the e-Manifest system related costs fall into three main categories: (1) System Setup costs, (2) Operations and Maintenance costs, and (3) Indirect costs. The nature and source of System Setup costs and the Operations and Maintenance costs are explained above in the discussion of the Fee Formula and how these costs are factored into the determination of fees. However, indirect costs also are factored into the Fee Formula calculation of user fees, and EPA believes this third major category of system-related costs merits more explanation.
	Indirect costs are the intramural and extramural costs that are incurred by EPA in operating the system, but that are not captured in the EPA Program cost and marginal labor cost sub-categories that EPA tracks as direct costs in determining overall costs and resulting fees. The indirect costs are part of full cost recovery, because of their necessary supporting or enabling nature in executing the program. (81 FR 49072 at 49080, July 26, 2016). Indirect costs typically include such items as physical overhead, maintenance, utilities, and rents on land, buildings, or equipment. In e-Manifest, these indirect costs also include the cost of participation by administrative EPA offices outside of the Office of Resource Conservation and Recovery (ORCR), the lead office at EPA for implementing the e-Manifest program, and the participation of upper management level personnel from the EPA offices that provide support to all aspects of the e-Manifest program. Id.
	Indirect costs tend to be disparate and more difficult to track closely than other cost categories, because they are typically incurred as part of the normal flow of work involving many offices across the Agency, and cannot be attributed directly to the particular activities they support. Also, the level of participation by different offices, and the level of indirect costs incurred by them, changes over the course of the program's implementation. Thus, as we explained in the proposed rule, indirect costs require a different method of tracking and accounting than the other categories of e-Manifest costs. Id.
	EPA accounts for indirect costs in its user fee determinations by developing an indirect cost rate, and factoring that rate times the base fees determined from the direct cost categories in the fee formula. Typically, agency-wide indirect cost rates are determined for EPA user fee programs by EPA's Office of the Controller, using an indirect cost methodology that this office has developed to meet the Federal Accounting Standards Advisory Board's Statement of Federal Financial Accounting Standards No. 4: Managerial Cost Accounting Standards and Concepts. EPA's Office of the Controller annually publishes an indirect cost rate for each of the Regional Offices and for each of the Assistant Administrator-level offices within EPA Headquarters. Thus, there is an Interagency Agreement (IA) indirect cost rate issued each fiscal year for the Office of Land and Emergency Management (OLEM). The Fiscal Year 2015 IA indirect cost rate for OLEM, which we discussed in the proposed rulemaking preamble and used for purposes of the proposed rule's table of illustrative e-Manifest fees at 81 FR 49085 of the proposed rule, was 19.74%. Id. at 81 FR 49080, footnote 11.
	In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA stated that it intended to develop a customized indirect cost rate that we believed would capture the indirect costs of the e-Manifest program at a greater level of specificity than the IA indirect cost rate for OLEM. EPA received no public comments on the issue of indirect costs. Nor did the Agency receive any comments on its statements in the proposal regarding its intent to develop a new custom indirect cost rate for e-Manifest.
      EPA is announcing in this final rule the custom indirect cost rate for e-Manifest, which was based on EPA's existing indirect cost methodology, and taking into account with more particularity other appropriate indirect costs attributable to the ORCR program office that were not captured by the previously used IA rate alone.
	Using the new custom indirect cost rate methodology for e-Manifest, the indirect cost rate for e-Manifest in fiscal year 2018 is 33.22 %. This indirect cost rate for e-Manifest will be calculated and reissued each fiscal year. Thus, when the Fee Formula is run to determine e-Manifest user fees, the applicable indirect cost rate will be factored times the base fees calculated from the direct cost categories in the fee formula to arrive at the total user fees.
E. What process and factors will be used to revise e-Manifest fees?
1. Background
	In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA proposed both a process and several fee adjusters that the Agency was considering to address the so-called "fee trajectory" concern. Fee trajectory provides a means to ensure that the program's user fees remain aligned with any changes to program costs. Changes to program costs could arise, for example, from increased labor costs for EPA's internal staffing or for its contractors, from increases in the costs of licensing software or other system components, as well as from inflation. In addition, since the calculation of e-Manifest fees is highly dependent on accurate information about program costs and the numbers of manifests in use, the e-Manifest user fees need to be reevaluated regularly to ensure that the fees are based on the most recent cost and manifest usage data.
	To address fee trajectory, EPA proposed a fee revision process under which the fee formula would be re-run with the latest program cost and manifest usage numbers at two-year intervals. EPA based this proposal on the perceived advantages of providing more stability to users under a two-year fee schedule, as well as the advantage to EPA of avoiding the administrative burden of constantly updating and publishing fee revisions annually. Moreover, we believed that a two-year fee refresh cycle was consistent with OMB's Circular A-25 user fee guidance, which requires agencies of the executive branch to conduct biennial reviews of its user fees, including any adjustments to the fees charged. See 81 FR 49072 at 49086, July 26, 2016.
	In addition, since EPA would retain the formula and merely refresh the fee schedules to reflect the most recent program cost and manifest numbers, the refresh and publication of the revised fee schedules under the proposal would be conducted informally. That is, EPA would not conduct notice-and-comment rulemaking with each fee schedule revision cycle, but would instead publish the revised fee schedule to users through the e-Manifest program's web site, and publish the fee schedules in this manner 90 days prior to the effective date of the new fee schedule.
	To enable a more durable fee methodology and avoid the need for frequent regulatory amendments, EPA included several fee adjusters in the proposed rule. The point of these adjusters was to keep the calculated fees current with any anticipated program cost changes, and avoid having to revise the formula and methodology by new regulations. If the fee formula with the proposed adjusters could keep the e-Manifest fees aligned with program cost changes, then EPA could retain the fee formula over an extended period of time, simply by refreshing the fees at two-year intervals with the latest budget and manifest numbers, and applying the regulation's adjusters. This is what EPA intended by a durable fee methodology.
	EPA proposed several such adjusters. First, we proposed an inflation adjustment factor predicated on the Consumer Price Index, for all items not seasonally adjusted, or CPI-U. EPA believed the CPI-U was a sufficiently representative inflationary index, and we proposed to use that index to adjust e-Manifest fees between the first year and second year of each two-year fee revision cycle.
	Second, EPA proposed a revenue recapture adjuster to deal with revenue losses that might result to the program from imprecise estimates of manifest numbers used to determine fees in the fee formula. The fees calculated under the fee formula, and therefore the revenue to be collected from e-Manifest user fees, are highly sensitive to the numbers of manifests actually in use each year. Over time, as EPA obtains data from the system showing precisely how many manifests are submitted to the national system, the program should be less vulnerable to losses from imprecise estimates. But particularly in the initial years of implementation, when our fee formula will work off of estimates of manifest usage developed from economic analyses rather than actual experience, imprecise estimates of manifest numbers are an area of revenue vulnerability. Therefore, EPA included the revenue recapture adjuster so that we could compare our estimated manifest usage numbers for each fee cycle with the numbers actually submitted, and then recapture the revenues lost from inaccuracies in the subsequent fee cycle. In this manner, the fee methodology would become self-correcting for any such revenue losses.
	Third, EPA proposed a third adjuster that we referred to as the uncollectable fee adjuster. Like the above revenue recapture adjuster, this proposed adjuster also sought to recover revenue losses from the previous two-year cycle. This adjuster, however, was focused on revenue losses that arose from fees that proved to be uncollectable after being billed to facilities. Thus, the effect of this proposed adjuster was to track how much revenue the program lost from unpaid and uncollectable fees billed to facilities, and then recover those revenues in the next fee cycle by increasing user fees sufficiently to recoup those losses. All the proposed adjusters were aimed at accomplishing full cost recovery, and providing a means for the fee system to be durable and self-correcting, where possible.
2. Comment Analysis
	The majority of industry and state agency commenters supported the proposal to refresh fee schedules at two-year intervals, with informal publication of the revised fees to the program's web site 90 days in advance of their effective date. Several commenters objected to certain aspects of the proposed informal fee revision process. An industry trade association objected to the 90-day lead time for new fee schedules as too short, and suggested a 180-day lead time was more appropriate, especially if there were large (>10%) fee increases. Two industry commenters objected to EPA making any fee changes without conducting a rulemaking, while a state agency commenter asserted that new fee schedules should be developed annually.
	Other commenters requested clarification of points raised in the proposal. One comment asked the Agency to clarify if it was the intent of the proposed rule that fees would be identical for both years of a fee cycle, or, would they change between years. Another commenter requested clarification about the effective date of fee revisions, and whether a fee would be charged based on the date of initiation of a manifest, or on the date of receipt at the receiving facility.
	For the proposed fee adjusters, there was general agreement among both industry and state agency commenters in support of the inflation adjuster based on the CPI-U as the measure of the inflationary impact. However, a minority of commenters stated that an inflation adjuster did not seem necessary, if user fees were to be refreshed as frequently as every two years. There also was support expressed by several commenters for the proposed adjuster to recover losses from imprecise manifest usage estimates. There were strong and general objections expressed by both industry and state agency commenters to the proposed uncollectable manifest fee adjuster. Nearly all these commenters expressed the view that it was unfair to charge responsible users who were paying their fees on time additional amounts to compensate for non-paying users. However, one generator did submit a comment in support of the uncollectable fee adjuster.
3. Final Rule Decisions
	For the final rule, EPA is affirming the proposed fee revision process to be conducted at two-year cycles by refreshing the fee formula with the most recent e-Manifest program cost numbers and manifest usage numbers. We also affirm that the process will be conducted informally rather than through notice-and-comment rulemaking, as long as the Agency is using the same fee setting methodology promulgated in this rule. Thus, the final rule will provide that the new fee schedules developed every two years from re-running the fee formula will be published to users via the e-Manifest program's Web site, at least 90 days prior to their effective date. While the Agency appreciates that an annual fee revision process would be even more responsive to program cost and manifest number changes than the final rule's two-year cycle, the Agency is persuaded that any such advantage is overwhelmed by the additional administrative burden to EPA in conducting a nearly constant, annual fee refresh process. Also, we believe there are advantages to users in having access to a stable fee schedule of two years' duration, rather than having to anticipate and react to a more frequent fee revision process.
	In finalizing the rule with this informal fee revision process, EPA rejects the comments suggesting that all fee revisions require a new rulemaking. While we acknowledge that OMB Circular A-25 requires agencies to promulgate user fees by regulation, EPA concludes that this requirement is met by developing this Fee Rule announcing our durable fee methodology through the regulatory process. By developing our durable fee methodology through rulemaking, EPA is providing the user community with notice and opportunity to comment on the information and process EPA will rely on in setting e-Manifest user fees, including those factors that will be used to adjust fees to align them with changes in program costs. EPA is aware that other fee programs follow similar processes in determining and revising their fees. EPA believes the durable fee methodology and informal fee refresh process announced in this rule meets all applicable legal requirements and OMB Circular A-25 policy. Otherwise, the result would be a prohibitively burdensome administrative process were EPA to constantly develop regulations for every fee revision. In addition, while EPA understands the desire to have more lead time to understand and budget for user fee revisions, EPA concludes that a 90-day lead time should be workable, as it will enable EPA to base the new fees on the latest cost and manifest usage trends, while still affording users reasonable time to plan for the revised fees. Also, by refreshing the fees at two year intervals, it would seem unlikely that fee changes will be so significant between cycles that facilities will need six months or more to prepare for their implementation.
	Based on the public comments and the necessity of full cost recovery and stable revenues, EPA is finalizing the rule to include the inflation adjuster based on the CPI-U, and the revenue recovery adjuster for revenue losses from imprecise manifest usage estimates. The inflation adjuster will operate to adjust fees between the first and second year of a fee cycle, so it is likely that fees will not be identical for both years of a cycle, but differ somewhat to reflect the inflation adjustment. The revenue recovery adjuster for imprecise manifest numbers will operate between fee cycles, to adjust fees in the new cycle to account for revenue losses during the previous cycle. Since the billable event for e-Manifest fees is the submission of the final manifest by the receiving facility, the fee charged will be determined based on the date of submission by the receiving facility, and not the date of initiation by a generator.
	Finally, EPA is not including the proposed uncollectable manifest fee adjuster in
§§ 264.1313(c) and 265.1313(c) of the final rule. While such an adjuster might help to stabilize program revenues in the event of significant non-payment incidents, EPA is persuaded by comments objecting to the fairness of charging responsible users for the revenue losses occasioned by delinquent payers. In addition, EPA believes that non-payment episodes will be infrequent, and should be resolved or moderated through the dispute process provided in the rule, or through the deterrent effect of the rule's sanctions for non-payment.
F. What process will be used for manifest data corrections?
1. Background
	In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA proposed a process by which receiving facilities only could submit a certified corrections submission electronically in order to make corrections in the data system to existing manifest records. (81 FR 49072 at 49098). The facilities could make these corrections by accessing the web-based e-Manifest application directly, or, by uploading a correction submission (e.g., a JSON file) affecting one or a batch of manifest records. Every correction submission by a facility would require a Cross-Media Electronic Reporting Rule (CROMERR)-compliant signature certifying that the data as corrected are true, accurate and complete. Id. The proposed rule's correction submission would clearly identify the Manifest Tracking Number of the affected manifest(s), the items on the manifest being altered, and set out both the data previously entered and the data as corrected. Id.
	The proposed data correction provisions also included a fairly detailed process by which corrections would be initiated and reviewed by interested persons, i.e., other handlers included on the affected manifest, and state regulators. Critical to this proposed process was the requirement that all data corrections were to be completed within 90 days of receipt of the manifested wastes, so that the corrections process would be completed by the date that manifest data could be disclosed by the system to the public under existing regulations. The proposed rule discussed one process under which the data correction was initiated by the receiving facility and another process under which another interested person (other waste handler or state) initiated a correction by providing the facility with notice of a data error. In either case, the proposed rule provided comment windows for interested persons to respond to the facility's data correction, and the correction process had to be completed by the facility no later than 90 days post-receipt for the waste shipment. Id. at 49099. Finally, EPA proposed that a fee would be collected for all data correction submissions from receiving facilities. Id.
2. Comment Analysis
	EPA received a variety of comments both supporting and objecting to the proposed data corrections process. A trade association of large receiving facilities and several members of the industry supported the major features of the proposed corrections process, including the proposal that only receiving facilities could submit data changes to the system, and the proposed requirement to submit all corrections electronically. These industry members also supported the batch certification process whereby one electronic signature would suffice to certify to a batch of data record changes.
	Among members of the waste industry, there were several comments that dissented to the proposal that only receiving facilities could enter data changes in the system. The dissenting commenters questioned why generators, transporters, or state agency representatives could not also make these changes, and one objected to the idea that the proposed rule seemed to portray receiving facilities as owners of manifest data, when generators should be playing this role. Other industry commenters and a state agency observed that not all facilities would be able to submit their corrections electronically, and that the rule should provide appropriate exceptions.
	EPA received many comments from industry and state agencies objecting to the proposed 90-day window for making data corrections. These commenters provided examples of several situations where errors and the need for corrections would not become apparent until after the 90-day window had passed, such as errors discovered after containers placed in storage were opened, during an audit, or while preparing an annual or biennial report. All these commenters urged EPA to reconsider this 90-day window, and allow data corrections to occur at any time they are needed.
	Many industry commenters also objected to the proposed fee for data correction submissions. Theses commenters asserted that a fee charged for corrections would operate as a disincentive to correcting data errors, and denigrate data quality in the system.
	The remaining comments on this topic were concerned with the clarity of the proposed corrections process, and they suggested several ideas for clarifying and improving the process. Within these comments were suggestions that the final rule:
 Clarify the interested parties who can participate in the corrections process,
 Clarify how receiving facilities will notify off-line generators of errors, discrepancies, or proposed corrections, and how off-line generators will notify facilities of data errors,
 Clarify how generators will be alerted to proposed corrections and how they will be able to validate or dispute such corrections,
 Clarify which states will receive notices of proposed corrections,
 Clarify the data validation rules and standards that will be followed for paper manifests, and the expectations for QA/QC and resource implications for states, and
 Clarify how the original and corrected versions of the manifest will be retained in the system.
	In addition, at the initial e-Manifest Advisory Board meeting conducted on January 10-12, 2017, Advisory Board members discussed the proposed rule's corrections process and offered suggestions to EPA representatives. Several Board members suggested there should not be detailed regulatory provisions or a prescriptive process for data corrections. Instead, the Advisory Board members suggested a minimal role for a regulation, and an open process by which any waste handler named on a manifest could at any time make a data correction. All interested parties should be made aware of another's proposed data change, and the last change made in the system would stand until corrected.
3. Final Rule Decisions
	For the final rule, EPA is accepting the many comments that objected to the 90-day post-receipt window for making corrections, as well as the numerous comments objecting to the collection of a fee for correction submissions. EPA is persuaded by the comments that both of these proposals could have the deleterious effect of discouraging data quality. Further, EPA agrees that all interested persons (e.g., waste handlers named on manifests) should have the ability to submit a data correction, whenever a data error in an existing record becomes apparent.
	EPA also is accepting the suggestion of e-Manifest Advisory Board members that the e-Manifest data corrections process should be an open process governed by minimal regulatory provisions, and without regulatory limits on who, when, or how many changes are made to manifest data records. Therefore, the final rule provisions on data corrections are much simpler than the proposed approach, and specify only that any interested person (e.g., waste handler named on the manifest) may make a data correction submission at any time. Data correction submissions must be made electronically, with electronic notice to other interested persons shown on the manifest. The correction submission may relate to an individual record or to an identified batch of records, and must be accompanied by a CROMERR-compliant certification that to the person's knowledge and belief, the data as corrected will cause the affected data records to be true, accurate, and complete.
	EPA emphasizes that under the final rule, the initiation of data corrections is not limited to receiving facilities, so the proposed rule approach under which only receiving facilities could submit corrections (at their own initiative or in response to a notice of error from an interested party) is not being finalized in the regulation. Instead, the final rule will simply state that any interested person (e.g., waste handler shown on a manifest) may submit a data correction submission at any time, by submitting a single record or batch correction electronically to the system; by making the required CROMERR-compliant certification to that person's knowledge and belief, the data records as corrected are true, accurate, and complete; and by giving electronic notice to the other interested persons shown on the manifest. Consistent with the proposed rule, the correction submission must indicate the record being corrected by its Manifest Tracking Number, must identify the Item Number of the manifest data fields affected by the correction, and for each data field corrected, must show the previously entered data and the data as corrected. The final rule corrections process is therefore an open and cumulative process under which any interested person may submit a correction affecting the data from the original manifest record, or affecting the data from previous corrections submitted by others. There is no limit to the number of corrections that may be entered, and the last submitted correction is presumed valid and accurate unless corrected by a subsequent data correction.
Those persons making data corrections must provide electronic notice of the changes to other interested persons shown on the manifest. The notice to interested persons must be provided by email or by another system-generated electronic notice.
	With respect to data corrections from off-line generators, and notices of corrections to these off-line generators, all generators must provide an email address where they may be contacted, so that they may participate in the data corrections process and receive correction related notices. While a generator may receive notices of data corrections by e-mail, a generator must have system access credentials and must enter electronically any data corrections relating to electronic or paper manifests in the system, and must provide the required certification of any data corrections so entered.
	Finally, EPA is clarifying that it is not the intent of the data corrections process to produce amended or revised manifests, but rather to produce changes only to the data records from manifests that reside in the national data system. The role of the manifest is to serve as a tracking document during the transportation of off-site shipments of hazardous waste and state only regulated wastes. The function of the manifest is complete at the time the receiving facility signs the manifest to indicate the receipt of the waste (or a discrepancy), and the signed copy showing the data at the time of receipt is distributed to the other interested persons. The data from completed, original manifests become the first representation of the manifest data records in the data system, but these data records are subject to revision through the final rule's corrections process, as well as through the discrepancy reporting process. The resulting data corrections will be made only to the data records in the national data repository, but will not result in the original, completed manifests being revised and redistributed. The system will retain the final manifest copy signed by the receiving facility as the copy of record of the completed manifest, and all subsequent corrections will be entered in the data system records, with an auditable trail of the corrections made and who made them retained in the system.
G. How does the final rule address fee sanctions?
1. Background
      EPA proposed several tiers of fee sanctions in the User Fee proposed rule that would be included in the e-Manifest fee program to induce manifest users to pay their fee obligations promptly. EPA explained in the proposal that these sanctions are necessary because the e-Manifest fee program would become vulnerable to revenue instability if significant numbers of invoiced payments were not paid promptly. Such instability would quickly put at risk the Agency's ability to operate the e-Manifest system on a self-sustaining basis and to meet its financial obligations in running the national system. For the purpose of ensuring timely payment of e-Manifest user fees, EPA proposed sanctions that would increase in their severity based on the degree and duration of the delinquency. See 81 FR 49072 at 49094, July 26, 2016.
      Specifically, EPA proposed a first tier sanction based on a financial penalty under 31 U.S.C. 3717(a)(1), a provision of the federal claims collection statutes that imposes an interest charge at the Current Value of Funds Rate or CVFR on those persons who are delinquent in paying claims owed to the federal government. EPA considers a fee payment to be delinquent and subject to this interest charge if payment is not received by the due date specified on an invoice, which for e-Manifest fees, would be 30 days from the date of the invoice. Thus, for e-Manifest users, payments received later than 30 days from the date of the invoice would be subject to this initial interest charge measured at the currently prescribed CVFR rate.
      If the first tier interest charge at the CVFR rate were not effective in causing a delinquent fee payer to make the outstanding payment, then the proposed rule's fee sanctions would assess a second tier 6% financial penalty charge for e-Manifest user fee debts that are more than 90 days past due, that is, user fee debts that are not paid by the date 120 days from the date of the invoice. Like the initial interest charge at the CVFR rate, this additional 6% financial penalty also is based on the federal claims collection statutes. 31 U.S.C. 3717(e).
      As a third tier of proposed fee payment sanctions, EPA proposed that receiving facilities would become eligible for inclusion in a list of delinquent fee payors when the period of their delinquency extended to 120 days or greater. Finally, the proposal also explained that if any manifests remained incomplete because of owed fees, then the receiving facility could be in violation for failure to fully complete a manifest per proposed § 264.1315(d) and/or § 265.1315(d), and EPA could enforce this violation under RCRA section 3008.
      In addition to these several proposed sanctions, EPA requested comment on additional sanctions (i.e., denial of manifest services and the withdrawal or suspension of authority to operate (i.e., RCRA ID numbers or permits). See 81 FR at 49094, July 26, 2016. EPA's intention was to develop a credible mix of available sanctions that could be scaled to the degree of the offense caused by the delinquency or non-payment, with the expectation that this framework would minimize or avoid delinquent payments.
2. Comment Analysis
      Industry and state comments on the proposed rule generally supported the financial sanctions, as well as the civil enforcement sanction for "egregious" cases, but several industry stakeholders expressed concern with the proposed definition of "incomplete" manifests. These commenters stated that the proposed definition could be construed to negatively impact generators, who are more generally responsible for completing RCRA manifests. Other commenters showed little support for the publicity sanction or denial of services as a sanction. These commenters indicated that a publicity sanction would not likely be effective in influencing payment behavior and would be unprecedented in existing EPA fee programs. Other comments opposing the denial of services sanction indicated such a sanction would be too severe, as it would tend to penalize generators too much in their efforts to obtain waste services, and would likely cause a backlog of manifests in the EPA data system. Another commenter suggested that denial of services to facilities and their customers could cause constrictions in waste management and perhaps cause frustrated generators to mismanage their wastes.
3. Final Rule Decisions
      After careful consideration, EPA is accepting the numerous comments that generally supported the tiered sanction approach and that provided particular support for the proposed financial sanctions under the federal claims collection statutes and the availability of RCRA civil enforcement orders to enforce non-payment of fees. Thus, EPA is finalizing these proposed sanctions at 40 CFR 264.1315 and 265.1315 with slight modification in the rule. Specifically, the final rule adopts the proposed sanctions detailed in paragraphs (a) and (b) at §§ 264.1315 and 265.1315 for financial interest and penalty charges without change. EPA, however, is persuaded by the adverse comments to the proposed publicity or delinquent payors list sanction and therefore is not adopting this proposed sanction in the final rule.
      EPA also accepts the commenters' opposition to the "incomplete manifest" terminology in proposed paragraph (d) of §§ 264.1315 and 265.1315. EPA intended to define a regulatory violation applicable only to the receiving facilities that have not "completed" their manifest transactions by submitting their manifests to the system and paying fees for the manifest services they have obtained from the system. The proposed violation was not intended to cause confusion relating to what is meant by the requirement for generators to initiate and complete manifests to track their off-site waste shipments. EPA, therefore, has amended the proposed "incomplete manifest" terminology in the rule to keep manifest completion distinct from the financial context intended in the proposed rule. To avoid any confusion with the concept of manifest completion, EPA is denoting a manifest for which fees remain unpaid by the receiving facility as an "unperfected" manifest. The final rule amends the proposed paragraph (d) at §§ 264.1315 and 265.1315 by assigning it as new paragraph (c) and clarifying that a manifest is not fully perfected until it is both submitted to the system and all fees for those manifests have been paid by the receiving facility submitting it. Thus, the RCRA civil enforcement sanction included in this final rule would apply only to the receiving facilities that are involved with unperfected manifests by not submitting them to the system or by not paying the applicable fee for their processing. This civil enforcement sanction would have no applicability to the activities of generators in their use of the manifest. The designation of a manifest as "unperfected" for purposes of payment by a receiving facility in no way impacts the validity of a manifest supplied by a generator for tracking its waste during its transportation off-site to a facility.
      Finally, EPA also accepts the numerous commenters that objected to the additional sanctions (i.e., denial of manifest services and the withdrawal or suspension of authority to operate) discussed in the proposal. Therefore, EPA is not promulgating these sanctions as part of this rule. EPA concludes that the several financial and civil enforcement sanctions adopted in the final rule create a credible mix of available sanctions that increase in their severity based on the degree and duration of the delinquency.
H. How does the final rule address user fee disputes?
1. Background
      In the User Fee proposed rule, EPA acknowledged that over the course of invoicing users for their fee obligations, errors may occasionally be made and thus may give rise to disputes concerning the amount of a user fee payment that is due in response to an invoice. EPA explained in the proposed rule that the Agency is not proposing a formal dispute resolution process governed by explicit and detailed regulatory provisions and processes. Rather, EPA intends to address e-Manifest fee disputes through a more informal process that EPA concludes will be sufficient and less burdensome than a formal process, while scaled more appropriately to the nature of such disputes. EPA requested comment on an informal fee dispute process under which users who believe their invoice is in error (statement incorrect on numbers or types of manifests billed, or a mathematical or other error) could first seek resolution via the system's billing representatives by making a claim identifying the nature and amount of the error. If not satisfied by the handling of their claim at this initial level, the claimant could appeal to the Office Director (OD) of EPA's Office of Resource Conservation and Recovery (ORCR), whose decision on the claim would be final and not subject to further Agency review. See 81 FR 49093, July 26, 2016.
2. Comment Analysis
      Industry commenters generally supported the proposed informal process, but one industry commenter had reservations about the fairness of the proposed appeals process. This commenter suggested that the ORCR OD would not be as unbiased as an independent third party and suggested that the OD's decision be subject to the Alternative Dispute Resolution program administered by the EPA's Office of General Counsel. See 65 FR 81858, December 27, 2000. Another commenter underscored the need for EPA to establish accessible customer support for timely resolutions. One state commenter, however, opposed the proposed informal process, and suggested that EPA should instead adopt a formal dispute resolution process that affords due process and creates perhaps a stronger record for fee dispute decisions.
3. Final Rule Decisions
      After analyzing the comments to the proposed informal process, EPA is promulgating the proposed informal process in the final rule. EPA acknowledges the industry commenter's apprehension about the fairness of the appeal process under the informal process, but the Agency does not accept the industry comment favoring an appeal of the OD's decision to an independent third party decision maker under an Alternative Dispute Resolution (ADR) process. EPA opposes this suggestion for a couple of reasons. Although the ADR process offers conciliation, facilitation, arbitration, mediation, fact-finding, mini-trials, and other services to claimants, EPA's December 2000 Federal Register publication announcing the ADR processes at EPA (65 FR 81858) suggests that ADR was intended for matters far more substantial and potentially controversial (e.g., adjudications, rulemaking, policy development, administrative and civil enforcement actions, permit issuance, contract award protests, workplace grievances, and litigious matters where a more substantial fact-finding and record development are necessary) than for the fairly simple fee disputes we anticipate in e-Manifest. Second, EPA understands that the use of the Agency's ADR process would be very time consuming and involve much greater costs than an informal process. The Agency believes the informal process scales well to the relative simplicity expected of fee disputes, and will result in more timely and less burdensome resolution of e-Manifest program fee disputes. EPA intends to respond to billing disputes within ten days of receipt of a claim under the informal dispute process. Finally, the Agency also concludes that the ORCR Office Director is sufficiently unbiased on such fee dispute matters to afford fairness to these informal proceedings.
      EPA also rejects the state agency comment recommending that EPA establish a formal dispute process. EPA concludes that the adjudicatory processes typically associated with formal dispute resolution are not well matched with the simplistic nature of the e-Manifest fee disputes. In addition, evidentiary proceedings typically are the most time consuming and resource intensive processes that could be selected.
      As stated in the proposed rule and adopted under this action, EPA will post on the e-Manifest web-site a phone number and an email address where users may contact the system's billing representatives with any questions they may have about the accuracy of a monthly user fee invoice. Whether a fee dispute claim is asserted over the phone, or by email, EPA expects the facility to provide sufficient information to support its claim that an invoice is in error. At a minimum, EPA expects that fee dispute claimants will provide the following information to the system's billing representatives:
 The claimant's name, the facility where the claimant is employed, the EPA Identification Number of the affected facility, the date and/or other information to identify the particular invoice that is the subject of the dispute, and a phone number or email address where the claimant can be contacted;
 Sufficient supporting information or calculations to identify the nature and amount of the fee dispute, including:
      - Whether the error results from the types of manifests submitted being inaccurately described in the invoice,
      - Whether the error results from the number of manifests submitted being inaccurately described in the invoice,
      - Whether the error results from a mathematical error made in calculating the amount of the invoice, or
      - Other information described by the claimant that explains why the invoiced amount is in error and what the fee amount invoiced should be if corrected.
      EPA's system billing representatives will endeavor to respond to all such billing disputes within ten days of receipt of a claim. In their response, the system's billing representative will indicate whether the claim is accepted or rejected, and if accepted, the response will indicate the amount of any fee adjustment that will be refunded or credited to the facility. If the claimant is not satisfied with the response of the EPA system's billing representative, the claimant may appeal its claim within ten days to the Office Director for the Office of Resource Conservation and Recovery.
      EPA further emphasizes that the assertion of a fee dispute claim through this informal process does not excuse the requirement to make timely electronic payments of the invoiced fee amounts. Fee adjustments will be handled as refunds or credits of amounts paid, and the existence of a claim does not justify withholding payment of invoiced fees.
      Finally, EPA is clarifying that once a claim has been addressed by the Agency under this informal dispute resolution and appeal process, the resolution that is reached after appeal to the Office Director concludes the matter and is non-reviewable by any other Agency official or in any other Agency proceeding.
I. Conforming changes to the paper manifest printing specifications
      In March 2005, EPA announced the Manifest Registry system that described procedural mechanisms and offered federal printing specifications at section § 262.21(f) to ensure that printers approved by EPA used unique tracking numbers on each manifest, and to reduce the possibility of printing many variations of manifest forms. As part of the printing specifications, EPA also required approved printers to indicate on the bottom, right margin of the form the distribution scheme so that the form would 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 copy'';
 Page 5: ``Transporter copy''; and
 Page 6 (bottom copy): "Generator's initial copy."