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 website 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 Sec.  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.''

    However, the e-Manifest regulations and the plans to begin e-
Manifest system operations on June 30, 2018, have necessitated a
conforming change to the current manifest copy distribution scheme.
Currently, the manifest form printing specification requires that the
top copy (Page 1) of the six-copy set of forms be sent by the
designated facility to the consignment or destination state, if
required by that state. However, on February 7, 2014, EPA announced in
its e-Manifest ``One Year Rule'' that when the e-Manifest system
becomes operational, designated facilities must send the top copy (Page
1) of the six-copy paper form to the e-Manifest system for purposes of
data entry and processing. See 79 FR 7518 at 7548. EPA is codifying in
this final rule the regulatory decision EPA announced (but did not
codify) in the February 7, 2014 issuance of the One Year Rule.
    Since the states with manifest collection and tracking programs
have continued to collect manifest copies during the planning and
development of e-Manifest, EPA chose to defer the collection of the top
copy by e-Manifest until the e-Manifest system was ready for
operations. With the announcement in the final rule that e-Manifest
system operations will commence on June 30, 2018, it is necessary to
implement with this final rule action this change to the copy
submission requirement, as well as the conforming change to the
printing specifications for manifest printers.
    Therefore, the final rule modifies the printing specification
requirements at Sec.  262.21(f)(5) and (f)(6)(i) to align with the new
manifest submission requirement for receiving facilities announced in
the One Year Rule. Thus, by June 30, 2018, approved printers must make
available to users a printed five-copy form that indicates that the top
copy of the manifest must be submitted by designated or receiving
facilities to EPA's e-Manifest system. Manifest users must begin using
the new 5-copy manifest form with this revised copy distribution
notation on June 30, 2018. Specifically, the copies of the form must be
distributed as follows:

    Page 1 (top copy): ``Designated facility to EPA's e-Manifest
system'';
    Page 2: ``Designated facility to generator'';
    Page 3: ``Designated facility copy'';
    Page 4: ``Transporter copy''; and,
    Page 5 (bottom copy): ``Generator's initial copy.''

    This change to the manifest form printing specification will bring
the manifest forms that will be used on or after June 30, 2018, into
alignment with the paper manifest submission requirements that will be
in effect on that date. Beginning on June 30, 2018, the top copy of any
paper manifests that continue in use must be sent to the e-Manifest
system, rather than being sent by the receiving facility directly to
the consignment or destination state. In addition, the new five-copy
form eliminates the copy, previously denoted as ``Page 2: Designated
facility to generator state,'' since the submission of the top copy to
the system by the receiving facility will itself enable both
destination states and generator states to receive their copies from
the system. This is the copy that EPA will use for data entry purposes.
As the central hub for manifest collection, EPA will share these data
with interested states, but receiving facility copies will not be sent
directly to either consignment or generator states on or after June 30,
2018. Therefore, one copy of the current six-copy form set is being
eliminated in the final rule, and the new manifest printing
specifications will require only a five-copy form to be printed and
used beginning on June 30, 2018.\7\
---------------------------------------------------------------------------

    \7\ The changes to copy distribution requirements in the final
rule affect the receiving facility copies. The e-Manifest system
will not collect generator copies of paper manifests, and states
that still wish to collect paper copies directly from generators may
continue to do so under state law.
---------------------------------------------------------------------------

    EPA emphasizes that the requirement that receiving facility copies
of paper manifests be submitted to the e-Manifest system rather than
directly to states is promulgated under the authority of the e-Manifest
Act. As such, the requirement for facilities to submit manifest copies
to e-Manifest in lieu of direct submission of these copies to the
states must be implemented consistently in all states starting on the
system launch date of June 30, 2018. As the Agency explained in the One
Year Rule, requirements under state law that are less stringent than or
inconsistent with requirements issued by EPA under the e-Manifest Act
are superseded by the e-Manifest Act requirements when these
requirements become effective on the system launch date. See 79 FR
7554, February 7, 2014. This principle is also codified in this final
rule in 40 CFR 271.3(b)(4), which explains the superseding effect of e-
Manifest Act requirements on less stringent or inconsistent
requirements contained in state law and authorized programs. Finally,
in Sec.  271.12(i), addressing manifest program requirements that must
be included in authorized state programs, EPA is adding a new paragraph
(i)(2) that will require state manifest programs to include a specific
requirement for owners or operators of hazardous waste management
facilities to submit a signed copy of the manifest to EPA's e-Manifest
system in lieu of sending a copy directly to origination or destination
states.
    The final rule also revises the printing specification at Sec.
262.21(f)(7) to comport with the aforementioned changes to the manifest
form and continuation sheet. The uniform manifest instructions for
completing the generator's copy, the transporter's copy, and the
designated facility's copy of the manifest and continuation sheet must
now appear on

the back of copies five, four, and three, respectively.

J. Requirement That Facilities Submit Paper Manifest Data Digitally

1. Background
    In the User Fee proposed rule, EPA did not propose but requested
comment on an approach under which receiving facilities would be
prohibited from submitting paper manifests by mail to EPA. Instead,
receiving facilities would be expected to submit manifest-related data
to EPA by electronic means only, that is, by uploading image files to
EPA, or by uploading a data file (e.g., JSON file) of manifest data
accompanied by an image file. Although EPA explicitly stated in the e-
Manifest Final rule that the e-Manifest Act and the regulations adopted
by the final rule allow manifest users to continue to use paper in the
field to track their waste shipments, EPA explained in the User Fee
proposed rule that the Agency was considering restricting receiving
facilities to digital submission of their paper manifests for a couple
of reasons.
    First, EPA acknowledged in the proposed rulemaking (81 FR 49074,
July 26, 2016) that the proposed differential fee approach should
itself discourage facilities from submitting large numbers of manifests
by mail but conceded that it would be difficult for the Agency to
project with confidence how many paper manifests will be mailed to the
Agency in the initial years of e-Manifest operations. Consequently, the
processing of mailed forms could involve significant personnel and
contractor costs for opening and screening mail, for data key entry,
document archiving, and for QA activities related to resolving data
quality issues. Second, EPA believes paper processing costs could
dominate the O&M costs in the early years of operation, and if mail
submissions occur in unexpectedly large numbers, EPA may need to
increase fees or consume more of its annual spending authority than
anticipated to process mailed manifests. For these reasons, EPA
requested specific comments on the merits of an approach that would
restrict receiving facilities to submitting their paper manifest data
to the Agency by digital methods only, and not by mailing hard copies
to the EPA system.
2. Comment Analysis
    Industry commenters to the User Fee Proposal generally supported
limiting receiving facilities' paper submissions of paper manifest
related data to digital format only (i.e., scanned images or data file
with scanned image uploads) and not by mailing paper hardcopies to EPA.
However, several commenters who supported the digital submission
restriction suggested EPA impose a several-year transition period
before instituting the paper submission ban. Other commenters
supporting the paper submission ban suggested EPA provide an exception
to the ban should unforeseen circumstances, such as unanticipated
burdens, data security issues, access issues for responders, and
compliance issues when the system is down or data are lost, occur.
    Some state commenters presented mixed comments on the merits of a
mailed paper submission ban. One state commenter supported the paper
copy submission ban, noting that paper infrastructure costs are great,
and the ban would help to reduce uncertainty in fee formula's marginal
cost calculations. Another state commenter opposed an outright ban and
argued that there could be substantial burden and cost for some
facilities to change platforms. The commenter suggested that especially
for those facilities not owned by nationwide companies, the costs to
them of converting to digital only submissions could be prohibitive in
the initial years. The commenter suggested EPA implement a phase-out
deadline of several years for the mailed paper copy submissions.
Finally, one state commenter objected to the ban of postal mail
submissions and argued that EPA has overestimated the sophistication of
some industry members, especially those receiving facilities that are
not RCRA permitted facilities.
3. Final Rule Decision on Facility Submissions of Paper Manifests
    After careful consideration of the comments to the User Fee
Proposed Rule, EPA has decided not to implement an outright paper
submission ban. Instead, EPA will initially allow both digital and
mailed manifest submissions from receiving facilities to the system,
but will schedule a phase-out of paper mail submissions after three
years of system operations. EPA made this determination for a few
reasons. First, while EPA acknowledges its decision could result in the
Agency receiving more paper forms in the initial years of operation,
EPA is persuaded by a few commenters' arguments that an out-right ban
on day one of system launch may cause financial hardship to certain
facilities that currently do not have the technological capacity to
digitally submit paper manifest related data to EPA. Second, EPA
concludes that a phase-out approach on a paper submission ban best
accommodates the uncertainty over how many and what types of facilities
might be burdened by the paper submission ban. EPA has consulted
primarily with a trade association (the Environmental Technology
Council) that is comprised of larger receiving facilities, so at this
time the Agency does not know whether mid-size or smaller receiving
facilities would be similarly inclined to submit data files and scanned
images of manifests to EPA and avoid mailing paper forms to EPA for
processing. EPA, however, believes a phase-out scheduled after three
years of system operations provides fairness and flexibility to those
facilities that need time to adjust to electronic manifests and acquire
and develop digital capability.
    Finally, this approach is consistent with the e-Manifest Act's
terms allowing the continued use of paper and authorizing EPA to issue
requirements to facilitate transition to electronic manifests. Thus,
the adoption of phase-out approach scheduled after three years in the
final rule best accommodates the Agency's objective of minimizing
mailed paper submissions with our legal authority that allows the
continued use of paper manifests while requiring EPA to issue
regulations to facilitate the transition to electronic manifests.
    EPA notes that the aforementioned phase-out of manifest hardcopies
applies only to the backend of the manifest workflow (i.e., manifest
submissions to the EPA system). Hazardous waste generators who
currently initiate their waste shipments using the paper manifest and
continuation sheet (EPA Forms 8700-22 and 8700-22A, respectively) and
want the flexibility to continue to use those forms once the e-Manifest
system becomes available for use, will for now be afforded the
flexibility to continue to use the manifest form and continuation sheet
once the phase-out period begins.\8\ If a receiving facility's customer
prefers to use the paper manifest and continuation sheet after the
phase-out period, then the receiving facility will be expected to
transfer the manifest data from those paper hardcopies to digital
format prior to submitting that data to the EPA system.
---------------------------------------------------------------------------

    \8\ In section IV of this preamble, however, EPA signals that it
is the Agency's goal to curtail as far as possible the use of paper
manifests and migrate to a fully electronic manifest within five
years of the start of system implementation. EPA will collect
information from the system on manifest usage, monitor this
information, and consult with the e-Manifest Advisory Board in
several years on how best to accomplish this goal.

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

K. How does final rule address user fee payment methods?

1. Background
    The User Fee proposal included two distinct options for comment:
(1) A monthly invoicing option, and (2) an advance, fixed payment
option. EPA proposed the monthly invoicing option as its preferred
option. Under this option, the Agency would bill each receiving
facility monthly for its actual manifest activity engaged in during the
previous month. The receiving facilities would receive an electronic
invoice displaying their manifest activity during the prior month, and
each facility would be directed to Treasury's Pay.gov website to submit
their electronic payments. Once directed to Pay.gov, the payor could
make their payment using one of the electronic payment methods
supported by Pay.gov. These methods include credit cards, debit cards,
and Automated Clearing House (ACH) debits from commercial bank
accounts. EPA met with the Environmental Technology Council and its
RCRA TSDF members prior to publication of the proposed rule, and
learned that this trade association and its members preferred the
monthly invoice option to the advance fixed payment option.
    In the July 26, 2016, proposed rulemaking, EPA requested public
comment on the advance, fixed payment option. With this option, EPA
explained that receiving facility users would make a monthly fixed
amount payment on the first of each month. The monthly payment amount
would be determined using an estimate of expected manifest usage for
the year, based on manifest usage during the prior year. The prior
year's manifest use numbers would be totaled by manifest type and
divided by 12 to arrive at the estimates of monthly manifest usage. The
monthly manifest fee would be calculated by applying the fee schedule
amounts to the monthly manifest usage estimates. Once so determined,
the monthly fee amount to be paid to EPA would remain fixed for the
entire year, and this fixed amount would be debited from the receiving
facility's commercial bank account by an Automated Clearing House (ACH)
debit on the first of each month. The fixed payment feature was
included so that this payment option would be consistent with the
standards of Pay.gov for recurring periodic payments.
    EPA explained in the proposed rulemaking that the Agency believes
advance payment is advantageous, from an administrative perspective,
because such payments would allow for the collection of fees in advance
of manifest services, which is administratively efficient on the front-
end of the collection process. Such an approach also could provide a
more stable revenue stream to cover system costs throughout the year,
because of the nearly automatic, scheduled nature of the payments. This
feature of the advanced payment option also could generate revenue more
promptly for the initial year of system operations. However, the
receiving facilities that the Agency consulted expressed some
skepticism about this payment option, as an estimated payment would not
be as accurate as payments invoiced from actual usage. These facility
representatives advised that there can be significant variability from
year-to-year in manifest usage, so the estimated payments collected
through the advance payment approach may diverge significantly from the
payments that would be owed based on actual usage.
    To address this issue, EPA explained in the proposed rule that it
would send one invoice to receiving facilities at the end of each year
to reconcile the amounts paid based on manifest use estimates with the
actual amounts owed as calculated from actual manifest usage data.
Thus, this option would involve a reduced volume of invoicing compared
to monthly invoicing, with resulting lower administrative costs to the
Agency. Moreover, the revenue stability risk posed by the two-month lag
inherent in monthly invoicing would be ameliorated by this alternative,
with its automatic payments each month. Stakeholders stated that there
would likely be resistance to automatic, estimated payments, unless EPA
identified clear incentives for this option.
    More recently, EPA convened the e-Manifest Advisory Board in
January 2017 and sought guidance on how to address comments received on
the advance, fixed payment approaches detailed in the proposed rule.
During the Advisory Board meeting, the EPA stated that the Agency
anticipates that the e-Manifest system will be operational in June
2018, assuming that the Agency receives adequate funding in fiscal
years 2017 and 2018. At that time, EPA will transition to a fee
collection system, and the majority of appropriated funds for e-
Manifest in fiscal year 2018 will be used for operating and maintaining
a paper processing center and IT help desk. While EPA expects to
recover these costs through fees, EPA acknowledged at the Advisory
Board meeting that a cash flow issue could arise as the system
transitions from the developmental to fully operational stage and
underscored that the advance monthly invoicing option could mitigate
the potential cash flow problems during the initial years of system
launch if the funds appropriated for operations were inadequate.
2. Comment Analysis
    Comments received on the proposal and recommendations presented by
the E-Manifest System Advisory Board in January 2017 generally
supported the monthly invoicing option, while most comments opposed the
advance payment approach. Industry and several state commenters
generally supported the monthly invoicing and indicated that paying for
actual usage on a monthly basis was the more precise option, and was
more consistent with common commercial practice. Industry commenters
argued further that it would be difficult to develop accurate manifest
use projections needed for an advance option and stated pre-paying in
advance could result in substantial under or over payments requiring
later reconciliation, which could adversely impact system financial
stability. One state commenter affirmed this sentiment and questioned
how EPA would prevent advance payers from greatly underestimating usage
for the year, and then owing huge balances at the end of the year. One
industry commenter suggested the monthly invoicing is the most logical
approach and will work well with the TSDF's process of invoicing their
customers (manifest generators) for the associated manifest fees
following acceptance of the waste shipments. Although most commenters
supported monthly invoicing, a few stated 30 days is insufficient to
pay invoices and suggested 45 or 60 days is a more realistic time
frame. Finally, one commenter suggested EPA utilize the advance payment
approach as a sanction for those who are chronically late with their
fee payments.
    While most commenters supported monthly invoicing, a few commenters
supported advance, fixed payments. One state commenter supported the
advance payment option because it is the least burdensome to the Agency
to administer and most stable for the system. This commenter, however,
suggested EPA create capacity to invoice a small number of smaller
TSDFs or the non-permitted state-regulated facilities. Another
commenter suggested that EPA retain advance payments as an option,
because it could gain greater participation after TSDFs have a few
years of experience with the e-Manifest system.
3. Final Rule Decisions
    EPA is persuaded by the comments supporting the monthly invoice

proposal and the recommendation of the e-Manifest Advisory Board to
promulgate the proposed payment method whereby e-Manifest user fees
will be paid by facilities in response to a monthly invoice that
summarizes manifest activity for the prior month. EPA, however, does
not accept the suggested preference to allow TSDFs up to 60 days to pay
invoices. The monthly invoicing option by its nature introduces a lag
of perhaps two months between the time manifest services are used and
the time when payments are received. This delay is unavoidable, as the
invoice would be sent after a month of usage has occurred, and the TSDF
would then be expected to make their payment on the invoice's due date
of 30 days post-receipt of the invoice. Extending the proposed time
frame from 30 days to 60 days would further increase the lag time from
two to three months. EPA is concerned the additional lag time could
further undermine EPA's ability to pay promptly its system related
expenses, and exacerbate the revenue instability risks posed during the
initial year of operations. Therefore, e-Manifest fees must be paid by
facilities by 30 days from receipt of an invoice, and payments not paid
by this date will be treated as delinquent by the Agency.
    Specifically, the rule promulgates the monthly invoice approach per
the proposed regulation at 40 CFR 264.1314(c) and 265.1314(c).
Receiving facilities will be required to pay all fees owed in response
to an electronic invoice or bill within 30 days of the date of the
invoice or bill. E-Manifest fees will be paid on-line via credit card
or electronic fund transfer. To submit a payment on-line, facilities
will visit www.pay.gov, and follow the instructions posted to the e-
Manifest program's website on how to make e-Manifest electronic fee
payments.
    Automatic debits to your business account may be blocked by the
bank. This security feature is called an ACH Debit Block, ACH Positive
Pay, or ACH Fraud Prevention Filters. ACH Debit Block works by having
an allowed list of ACH Company IDs. The list enables allowable
automatic debits. If the ACH Company ID accompanying a request for an
automatic debit is not on the allowed list, the payment is rejected. It
is returned with an ACH Return Reason Code of R29--Corporate Customer
Advises Not Authorized. You must contact your bank to add the U.S. EPA
to your list for allowed debit payments.

L. Transporter Changes on the Manifest While En Route to the Designated
Facility

1. Background
    The User Fee proposed rule proposed to modify the current
regulations regarding transporter changes to shipment routing
information on the manifest during transportation. The Agency proposed
on July 26, 2016, to amend paragraphs (a) and (b) of 40 CFR 263.21 so
that changes to shipment routing on the manifest can be made: (1) To
address an emergency; or (2) to accommodate transportation convenience
or safety, e.g., to allow more efficient transport from a transfer
facility or enable the substitution of a transporter that is the sub-
contractor of the designated transporter. In addition, the proposal
indicated that a change in transporter designation on the manifest
could be effectuated by: (1) A consultation with the generator and
generator approval of the change; or (2) a contractual provision
authorizing the transporter to make such a change on behalf of the
generator. See 81 FR 49072 at 49104.
    EPA explained in the proposed rule that the aforementioned
modifications to the regulation were needed for a several reasons.
First, the amendments to the regulation are necessary to align them
more closely with the current industry practice of allowing transporter
changes to shipment routing on the manifest, as the transporters and
brokers often have more expertise than some generators in arranging the
logistics and routing of hazardous waste shipments. The proposed rule
also recognized that many hazardous waste generators, particularly
small quantity generators, are willing to delegate the responsibility
of arranging waste shipments to their brokers and transporters. Current
manifest regulations limit waste shipment delivery options to only the
facilities or transporters designated on the generator's manifest,
unless an emergency condition prevents delivery to the designated
facility or the next transporter. Thus, under existing regulations, any
changes to the routing plan, including changes to transporters
designated on the manifest, require generator consultation and
approval.
    Second, industry stakeholders have argued for years against the
Agency's notion that the generator should bear the sole responsibility
for designating the routing of its waste on the manifest and must be
consulted explicitly on any proposed changes to named transporters
during transportation. Industry transporters contend that transporter
changes to the initial routing of hazardous waste shipments are often
necessary to accommodate transportation convenience or safety (e.g., to
allow more efficient transport from a transfer facility or enable the
substitution of a transporter that is the sub-contractor of the
designated transporter). Further, industry stakeholders have stated
that a limited agency authority granted to transporters in the service
contracts with their generator customers should allow them to act ``on
behalf of'' and change the routing for the generator without specific
consultation with the generator on each change (81 FR 49096, July 26,
2016).
    Finally, EPA consulted with our authorized states on this issue,
and the Agency has concluded that the states generally have not
actively pursued enforcement actions against transporters who have made
these types of transporter changes to the manifest under the existing
regulation. Amending the regulation as proposed would make the language
of the transporter regulations consistent with industry practices.
2. Comment Analysis
    Comments received to the User Fee proposed rule generally supported
the proposed changes to paragraphs (a) and (b) of 40 CFR 263.21, but a
few raised questions about the details of implementation. One industry
commenter supported the proposed changes, but suggested EPA clarify
what statement needs to be entered on the manifest to ``describe the
contractual authorization'' given a transporter to act as generator's
agent. Another industry commenter in support of the proposal, suggested
that EPA allot space, other than Item 14, on the manifest so that the
contract information can be recorded.
    State commenters generally supported the proposal, but raised
questions about the details of implementation. One state commenter
suggested that EPA add a definition of ``agency authority'' and require
legible changes. Another state commenter inquired how an inspector will
know which generators have such contracts, and asked if the generator
or transporter will be responsible for keeping the records of such
contracts. The commenter also asked whether the contract authorization
details would be recorded in Item 14 or in a separate data element on
the manifest form.
    A few commenters, however, did not support the proposed changes for
various reasons. One commenter argued that re-routing is already a
common industry practice that does not require rule change for support.
Other commenters opposed listing contract

arrangements on the manifest and argued that the receipt of manifest
copies displaying the routing changes was adequate. One commenter
representing the generator sector opposed the proposal and raised
concern that the proposal may affect the generator's liability or
responsibility for compliance with the generator requirements of RCRA
Subtitle C.
3. Final Rule Decision
    After careful consideration of all comments on this issue, EPA is
promulgating in the final rule the proposed changes to paragraphs (a)
and (b) of 40 CFR 263.21 virtually unchanged. Specifically, EPA is
promulgating proposed paragraph (a) and proposed Sec.  263.21(b)(1),
(2), and (4) without change. EPA, however, is promulgating the proposed
Sec.  263.21(b)(3) in the final rule with slight modification. EPA
accepts the commenter's suggestion that the Agency clarify the
statement needed to be recorded in Item 14 of the manifest to
characterize the contract authority given to a transporter to act as a
generator's agent. Therefore, EPA is modifying the proposed Sec.
263.21(b)(3)(ii) so that transporters or brokers who intend to oversee
and control the routing of the shipments on behalf of the generator
must enter the following statement in Item 14 of the manifest:
``Contract retained by generator confers agency authority on initial
transporter to add or substitute additional transporters on generator's
behalf.''
    In addition, EPA concludes that this standard statement should meet
state concerns and enforcement needs. The statement provides explicit
direction to generators who have granted agency authority to
transporters to maintain a copy of the contract. Second, the statement
adequately articulates the limited agency authority granted to the
transporter service company by the generator. Thus, the states could
pursue enforcement actions against generators for failure to produce
the contract upon request as well as enforce actions against
transporter service companies for failure to comply with the statement
recorded in Item 14.
    The Agency acknowledges one commenter's assertion that Item 14 is
overused, but does not accept the suggestion for recording the contract
details in a separate line item on the manifest. The Agency believes
the contract authority language detailed in new Sec.  263.21(b)(3)(ii)
is brief and should not inhibit the generator's ability to legibly
record other manifest information about the shipment in the restricted
space. However, EPA acknowledges that the commenters' suggestion is
worthy of further consideration for e-Manifest and may pursue such a
separate data field within the electronic system as it continues its
development of the e-Manifest system.
    The Agency disagrees with the commenter that the aforementioned
changes to 40 CFR part 263 do not require a rule change for support.
The adoption of these regulatory changes in this final rule is a shift
in EPA's longstanding policy that the generator must control the
routing of his or her hazardous waste shipment, and that changes to
routing must occur with generator consultation and approval, and are
appropriate in cases of emergencies. The adoption of the 1980 final
manifest regulation and the prior policy were based on prominent pre-
RCRA incidents in which transporters and brokers had diverted hazardous
waste shipments to unauthorized sites involving ``roadside'' or
``midnight'' dumping. Thus, previous policy underscored the intention
of the 1980 regulation that the generator should bear primary
responsibility for designating the routing of its waste on the manifest
and for ensuring delivery of its waste to proper waste management
facilities. The new regulatory policy extends the process for effecting
changes beyond consultations to include an agency contract to make
these changes on behalf of the generator. The new policy also extends
the conditions permitting such changes beyond emergencies to include
transporter convenience and safety. EPA concludes that a regulatory
change is necessary to avoid any confusion about what transporter
changes are permissible, under what circumstances they are permissible,
and how these changes should be effected. The rule change should also
protect industry members from any enforcement actions that could result
from regulators enforcing the stricter policy of generator control
suggested by the current regulation. The adoption of the final rule
will help to maintain a consistent national policy on the manifest,
particularly as the Agency continues its efforts to establish the e-
Manifest system. Industry practice, regulatory policy, and state
enforcement policies will now be better aligned, and EPA can develop
technical requirements for the e-Manifest system that are consistent
with this policy.
    The adoption of the amendments to 40 CFR 263.21 recognize two
distinct classes of transporters involved in changes to shipment
routing on the manifest. First, Sec.  [thinsp]263.21(b)(2) applies to
those transporters that lack contractual (agency) authority to act on
behalf of the generator in making any transporter substitutions or
additions. For such transporters, this final rule will continue the
existing requirement to consult with the generator and obtain the
generator's explicit approval of the proposed changes in the shipment's
routing. The final rule authorizes changes in circumstances of an
emergency, as well as for purposes of transporter efficiency,
convenience, and safety.
    Second, Sec.  263.21(b)(3) applies to those transporters that have
contractual authority to act as the agent of the generator with respect
to adding or substituting other transporters while hazardous waste is
in transport. The transporter making such changes must record the
aforementioned statement regarding its contractual authorization in
Item 14 of each manifest for which such a change is made. In addition,
Sec.  [thinsp]263.21(b)(4) clarifies that any such grant of authority
by a generator to a transporter to act on the generator's behalf in
making changes to transporter designations does not affect the
generator's liability or responsibility for compliance with the
generator requirements of RCRA Subtitle C. The final rule provides that
transporters acting under agency authority on behalf of the generator
may add or substitute another transporter in circumstances of an
emergency, as well as for purposes of transporter efficiency,
convenience, and safety.
    Finally, the existing provisions of Sec.  [thinsp]263.21(a)(1),
(2), and (4), addressing the conditions and process by which a
generator must, under an emergency situation, be consulted on and
approve any change to the designated facility, the alternate designated
facility, or the place outside the United States designated by the
generator for delivery of export shipments, are not altered by the
adopted regulatory changes.
    The Agency notes that the revisions adopted in this final rule only
authorize limited agency authority to the transporter service company
to make changes to the designated transporters on the manifest, on
behalf of the generator, while the generator's shipment is en route to
the designated receiving facility. They do not authorize any broader
agency authority to a transporter to act ``on behalf of'' generators
with respect to other generator responsibilities. For example, a
transporter cannot assume broad agency authority to substitute a
different designated facility or alternate facility, or, for exports,
the receiving facility outside the U.S. designated by the generator,
without consulting the generator. Nor could a transporter

assume the responsibility to maintain a generator's manifest records
and submit Exception Reports or resolve discrepancies on behalf of the
generator. These are control and oversight functions that must remain
with the generator.
    In addition, as explained in the proposed rulemaking (81 FR 49096,
July 26, 2016), this regulatory change with respect to manifest changes
during transport does not grant transporters (acting as agents for
generators) the authority to correct the waste description data (e.g.,
quantities, types, shipping names, waste codes) entered on the
manifest. If such changes are necessary, then the transporter must
consult with the generator and revise the manifest according to the
generator's instructions.
    Finally, the amendments do not affect EPA's adoption of the
Department of Transportation's Hazardous Materials rules and policies
in the March 2005 Manifest Revisions rule pertaining to ``offerors''
and pre-transportation functions for hazardous waste shipments. The
offeror authority does not apply to activities that occur during
transport. Therefore, a generator's transport contractor can act on
behalf of the generator in its capacity as offeror for pre-transport
functions, and under this action, the generator's transport contractor
could modify the manifest on behalf of the generator during
transportation, but only to modify the transporter designations
pursuant to authority granted by the generator in its contract for this
purpose.

M. Mixed Paper and Electronic Manifest Transactions

1. Background
    In EPA's One Year Rule, the Agency determined not to allow mixed
paper and electronic manifest transactions. This decision was codified
in 40 CFR 262.24(c), which addresses restrictions on the use of
electronic manifests. See 79 FR 7518 at 7549 (February 7, 2014). The
final regulation at Sec.  [thinsp]262.24(c) states that a hazardous
waste generator may prepare an electronic manifest for tracking waste
shipments ``only if it is known at the time the manifest is originated
that all waste handlers named on the manifest participate in the
electronic manifest system.'' In the User Fee Proposed Rule, EPA raised
the specific issue of allowing mixed paper and electronic manifests in
the limited circumstances of completing and signing the generator's
initial copy of the manifest. EPA explained in the proposed Fee Rule
that a policy banning all mixed manifests, without exception, could be
too restrictive and might rule out needed implementation flexibility at
generator sites where a phase-in of electronic manifesting could be
particularly helpful. 81 FR 49072 at 49099.
    Therefore, EPA proposed for public comment an approach at Sec.
262.24(c)(1) that would relax the mixed (also referred to as hybrid)
manifest ban in limited circumstances. EPA proposed to allow generators
to choose to complete and sign a paper manifest in the conventional
manner, to obtain the ink signature of the initial transporter at the
time the transporter acknowledges its receipt of the hazardous wastes
for transportation off-site, and to retain this ink-signed paper copy
among its records as the initial generator copy of the manifest. For
the generator, the manifest would operate exactly as the current paper
system. However, the initial transporter and subsequent handlers would
execute the same manifest electronically, presumably on portable
devices, and all handlers subsequent to the generator would sign the
electronic manifest with their electronic signatures. The final copy
signed electronically by the receiving facility would be submitted to
the system and retained as the copy of record of the shipment, while
the initial generator copy would remain as a paper copy at the
generator site.
2. Comment Analysis
    Industry comments from the Environmental Technology Council (ETC)
and its waste receiving facility members generally supported the
proposed hybrid option, noting that there would be significant
challenges for both generators and transporters in adopting electronic
manifesting. The ETC and members supported the flexibility in the
proposed hybrid, and suggested that the proposed mixed manifest
approach could be part of the solution to the larger implementation
challenge of integrating all waste handlers into e-Manifest. The
comments further suggested that the hybrid might help to avoid a
situation where EPA might ``flip a switch'' and attempt to implement e-
Manifest for all waste handlers all at once.
    Emphasizing the need for a broader solution, the ETC and its
members responded to the proposal with comments advocating a more
comprehensive phased implementation of the electronic manifest system,
involving three phases. Under Phase I, the paper manifest process would
continue as under current rules, but receiving facilities would convert
their paper manifest data to CROMERR certified electronic data files
for upload to EPA's national data system. Under Phase II, EPA would
place its emphasis on preparing generators for e-Manifest
implementation, conducting outreach on generator administrative
requirements, and enabling generators with system access to receive
their final signed manifest copies electronically through the system.
Finally, in Phase III, EPA would adopt full implementation of
electronic manifests by generators, transporters, and receiving
facilities. The ETC comments suggested that this phased approach could
progress in an orderly manner, with about six months between the
several phases. Commenters supporting this phased approach further
suggested that the collection of full user fees be deferred until Phase
III. These commenters suggested that EPA only impose a ``nominal fee''
in Phase II, measured only by the costs of EPA receiving the uploaded
data, thereby reducing any ``sticker shock'' that would be faced by
users when initially confronted with the new system's user fees.
    One industry commenter expressed frustration with the lack of real
progress in developing e-Manifest, and suggested that the effort should
end with the Phase I approach described earlier, or, wait for the
Department of Transportation to proceed with electronic shipping papers
for Phase II. Another, commenter remarked that it was not clear how the
hybrid manifest option would affect EPA's stated goal in the fee pivot
discussion of reaching 75% electronic manifest usage in four years. The
commenter asked whether the ``hybrid'' manifests would count toward
EPA's 75% electronic use goal that determines if the fees will pivot.
    Other industry and state commenters objected to EPA's hybrid or
mixed manifest proposal, stating that it possibly would produce severed
manifests with conflicting paper and electronic versions that would
remain disconnected in the system. Several commenters noted as well
that the hybrid proposal was incomplete in not describing fully how
waste receipt confirmations, exception reporting, and other downstream
processes will be conducted if only the generator has the paper form.
These commenters argued that regulations hold the generator responsible
for what is on the manifest, but if the receiving facility later
changes the electronic version, the generator may not be made aware.
These commenters questioned how generators could remain liable for
manifest data that ultimately appears on an electronic version that
they may not see.

    More recently, EPA convened the first e-Manifest Advisory Board
meeting in January 2017. At this meeting, EPA presented on the proposed
hybrid option and the aforementioned phased implementation approach
presented in industry comments. The Advisory Board members generally
supported a phased approach that would initially continue the paper
manifest process through the transportation and delivery of hazardous
waste shipments, and then allow the receiving facilities to upload
electronically the certified data from their paper manifests to the
system. However, in response to suggestions from generator members of
the Board, this discussion concluded with the suggestion that the
receiving facility should also upload a scanned image of the final,
signed paper manifest to the EPA system with the data file.
3. Final Rule Decisions
    After careful consideration of the comments received on the
proposed rule, EPA has elected to promulgate in the final rule the
mixed manifest proposal announced in the proposed rule. Therefore, this
action modifies Sec.  262.24 by adding paragraph (c)(1) as proposed.
Under this regulation as amended, generators who wish to initially
track their shipments by paper will complete and sign a paper manifest
in the conventional manner and obtain the ink signature of the initial
transporter at the time the transporter acknowledges its receipt of the
hazardous wastes for transportation off-site. Generators will retain
this ink-signed paper copy among their records as the initial generator
copy of the manifest. The initial transporter and subsequent handlers
will complete the remainder of the manifest copies electronically. The
final copy signed electronically by the receiving facility will be
submitted to the system and retained as the copy of record of the
shipment, and distributed to waste handlers and interested states via
the system. The initial generator copy will remain as a paper copy (or
stored image) at the generator site, and will be available there for
inspection.
    EPA also sees substantial merit in the receiving facilities'
several comments urging EPA to implement e-Manifest under a phased
approach. Some confusion has arisen surrounding the hybrid manifest
concept, as it has been used to describe both the mixed manifest
regulatory change that EPA proposed in the July 26, 2016 proposed rule,
as well as to describe the industry's recommended phased system
approach. However, while the hybrid and phased approaches are
complementary, and both involve some combination of paper and
electronic processing, they do differ in important respects.
    The mixed manifest approach finalized by EPA in the rule is by its
nature an electronic manifest, with a narrow exception allowing the
generator only to sign and retain a paper copy.\9\ However, this
manifest will originate in the e-Manifest system as an electronic
manifest, it will be assigned a unique manifest tracking number by the
system; all subsequent tracking of the waste shipment and all manifest
signatures executed during its transportation and delivery will be
conducted electronically through the system. The creation of a paper
manifest copy from the system generated manifest is merely an
accommodation to the generator, while all other aspects of the
transaction and shipment tracking are through an electronic manifest.
Thus, manifests prepared and executed in this manner will be regarded
and processed as electronic manifests, and will be subject to the fees
for electronic manifests. To further clarify the status of these hybrid
or mixed manifests as electronic manifests, the final rule also
provides that the Sec. Sec.  264.1310 and 265.1310 definitions of
electronic manifest submissions include the mixed or hybrid manifests
authorized in the final rule at Sec.  262.24(c)(1).
---------------------------------------------------------------------------

    \9\ The initial transporter would sign this copy by hand as
well, enabling the generator to retain its initial copy signed by
the transporter to acknowledge receipt of the waste. The initial
transporter also would sign this manifest electronically in the
system, and all subsequent tracking and signatures would be
conducted electronically through e-Manifest.
---------------------------------------------------------------------------

    The industry recommended phased approach, particularly during
phases I and II, is not per se an electronic manifest. A closer
evaluation of the phased approach discloses that during at least the
first and second phases, it is expected that the paper manifest will
continue to be used during the actual tracking of the waste shipment
through its transportation and until delivery of the waste to the
receiving facility. Because the tracking of waste transportation and
delivery to the facility is conducted with paper manifests, and all
manifest signatures are collected as conventional ink or by hand
signatures, these are by their nature paper manifest transactions,
rather than electronic manifests. However, there is an electronic
transaction conducted in the e-Manifest system by the receiving
facility post-receipt, and this consists of the upload of the manifest
data derived from the received paper manifests to the e-Manifest system
for processing. This latter, electronic transaction is executed as an
electronic data file and image file upload to the system, with a
CROMERR compliant certification by the facility owner or operator. As
this is a transfer of data from paper manifests, not electronic
manifests, the manifests processed in this manner would be charged the
scheduled fee for paper manifests submitted as a data file with an
image file attachment.
    EPA agrees that there are advantages to the phased approach to
implementation suggested in the industry comments. First, EPA agrees
that the suggested Phase I is a useful way to commence e-Manifest
operations, as it will enable EPA to establish for the first time a
national data-base system containing all manifest data from all
sources, and allow the collection of fee revenues (based on paper
manifest processing fees) so as to fund the system's development and
operating costs in a self-sustaining manner. This system also will be
available on Day 1 for fully electronic manifesting by those able to do
so.
    Second, the Agency also agrees that industry's suggested Phase II,
involving significant generator outreach and the electronic transmittal
of final manifest copies to participating generators, has considerable
merit to it. In fact, the regulations EPA developed in the One Year
Rule already support the industry phased approach. In the One Year
Rule, the Agency provided that paper manifests could continue to be
used in waste tracking, and that receiving facilities could submit the
data from such paper manifests to the system as a data file in JSON or
similar data exchange language, with the inclusion of the paper
manifest image file.\10\ Thus, all the regulatory authority needed to
support Phases I and II of industry's phased approach was promulgated
by EPA previously in the One Year Rule, and the final rule clarifies
the fee that will be assessed for these transactions. EPA also
emphasizes that to support this effort, it is currently conducting
outreach to encourage user/stakeholder engagement and participation to
enhance e-Manifest participation once the system becomes available for
use. As

part of this effort, EPA's intention is to offer open forums prior to
system launch that promote the opportunity for stakeholders to
participate in user testing and to continue Advisory Board meetings
during the progression of the e-Manifest system launch.
---------------------------------------------------------------------------

    \10\ While the discussion by Advisory Board Members in January
2017 recommended that an image file be included as an additional
element in the phased implementation approach, EPA notes that the
inclusion of the image file was already required by EPA regulation
as a necessary component of a data file upload from paper manifest
records. The image file upload, however, is not a part of the mixed
electronic/paper manifest process, as the receiving facility
submission is an electronic manifest that will be processed without
any manual image uploads.
---------------------------------------------------------------------------

    Nevertheless, there are aspects of the commenters' phased approach
that concern EPA. While there is considerable detail on the objectives
for suggested Phases I and II, which continue the use of paper
manifests, the comments provide little detail on how the regulated
community would move from Phases I and II to a fully electronic
manifest in Phase III, and how that would be accomplished in six
months. Without more detail, the industry's phased approach appears to
lack incentives for facilities and other handlers to adopt fully
electronic manifesting and finally transition to the desired paperless
manifest. Therefore, while we believe the commenters' phased approach
presents a useful starting point for setting up and operating an
initial fee-worthy e-Manifest system and data-base, we will need to
explore carefully with stakeholders what additional steps and phases
will be necessary to establish a credible path to a widely adopted
electronic manifest.
    EPA is finalizing the mixed manifest regulation with this action,
because we believe it could be a useful component in the phased
strategy suggested by the industry commenters. The mixed manifest or
hybrid manifest enables an electronic manifest to be initiated in the
system and executed electronically through the transportation and
delivery phases of a waste shipment, allowing only the generator to
retain a paper copy signed with conventional ink signatures. EPA
developed this regulation on account of perceived challenges for
generators to participate in a fully electronic workflow, so the mixed
manifest could permit more of these waste shipments to originate and
conclude electronically, by accommodating the generator with a paper
copy for its files only. Admittedly, the hybrid approach will only
become useful as part of the phased implementation strategy when there
are receiving facilities working in concert with transporters (their
own or independent) that are willing to install portable devices on
their transport vehicles and take the electronic manifest out into the
field to the generators. These are important links that must be put in
place for electronic manifesting to achieve widespread adoption, and it
will be a focus of our discussions in the near term with the user
community and the e-Manifest Advisory Board.
    EPA is not persuaded by comments suggesting EPA retain the mixed
manifest ban announced in the One Year Rule. EPA acknowledges that the
mixed manifest approach promulgated in the final rule may present some
of the same difficulties that caused EPA to reject a mixed manifest
approach in the One Year Rule. In particular, there is in fact some
complexity that arises from allowing a paper copy to remain at the
generator site, severed from the electronic version that continues in
play with subsequent handlers. The severed nature of the manifest
presents issues for generators in monitoring the progress of their
shipments, and it results in the generator copy being available for
inspection only at the generator's site, and not through the system.
This problem is amplified if the electronic version undergoes editing
and markup while the shipment continues to the receiving facility.
However, given the substantial challenges faced at generator sites in
the initial implementation of e-Manifest, EPA continues to believe
there could be merit to this hybrid option, as it will enable many of
the desired efficiencies and burden reductions of electronic
manifesting to occur beyond the generator site. Any drawbacks posed by
the presence of mixed manifests should be surpassed by the advantages
and efficiencies of executing and transmitting more manifests
electronically, particularly as an interim solution prior to the
adoption and widespread use of fully electronic manifests by
generators.
    While the severed manifest issues are not insignificant, there are
workarounds available. EPA expects that all generators will be afforded
access to the e-Manifest system, whether or not they choose to
participate in executing manifests electronically. Generators will soon
be able to obtain access credentials and will then be able to view the
final copies of manifests that will be distributed by the system. So,
any changes made to mixed electronic manifests by subsequent handlers
should be apparent to the generator when they view the final manifest
copy from the system. Generators viewing their final manifest copies
distributed by the system will thus be able to participate in the
corrections process, respond to discrepancies, and note any exceptions,
as they would if receiving a paper manifest through the mail. EPA does
not believe it is placing great demands on generators insofar as
expecting them to obtain access credentials and monitor their manifest
activity in the system. While this will initially involve generators
having to compare their initial paper manifest copies with a later
delivered electronic file accessed in the system, any complexity in
this result should only persist during the time that the user community
is transitioning from paper to electronic manifesting. Electronic based
transactions are becoming the norm in all walks of life, and the
manifest user community must be prepared for the transition to
electronic tracking of hazardous waste shipments with e-Manifest.
    With respect to other comments submitted on the phased
implementation of e-Manifest, EPA cannot accept the commenters'
suggestion to only accept a nominal fee initially through Phase II, and
defer full payment of manifest transactional fees until Phase III. As
explained in Section III.C of this preamble, the final fee methodology
and fee schedule prescribed in this rule must cover all system related
costs for all of EPA's activities related to developing and operating
e-Manifest, including costs to process paper manifests that continue in
use. Our differential fee methodology is based on workload models that
project the labor and other costs of processing each type of manifest.
The fees also include a component to recover our system development
costs, which the fee methodology is amortizing over a five-year period.
Any effort at manipulating the fees to defer their full impact until
later phases would only mean that the fees would be enhanced later to
recover any deferred revenues, which would possibly cause the fees to
seem excessive to some users when so adjusted. In addition, this
suggestion would likely further aggravate revenue stability issues for
EPA during the initial years of operation, when ensuring a stable
revenue stream may be most essential.
    EPA rejects the industry commenter's suggestion that e-Manifest
efforts conclude with the Phase I solution (paper manifests with only a
data upload from the receiving facility), or that our implementation
efforts on e-Manifest await progress by DOT on its electronic shipping
paper initiative. The Congress has mandated in the e-Manifest Act that
EPA develop a national tracking system for hazardous waste shipments,
and that we coordinate with DOT on this effort. While EPA is very
interested in the progress of DOT's electronic shipping paper pilots,
that effort is not conceived at this time as a national system approach
such as that mandated for e-Manifest, so there are only so many

synergies that can be exploited between these efforts. The Agency will
continue to consult with DOT as we develop and implement the e-Manifest
system.
    Finally, concluding the e-Manifest effort with the industry
suggested Phase I system is not an acceptable outcome to the Agency.
Phase I as the end point would essentially leave the paper manifest
system in place indefinitely. The e-Manifest Act mandate for an
electronic manifest system was not motivated solely by the desire to
develop a national data-base of waste shipment data. The Act also
contemplated that the national e-Manifest system would produce
paperwork burden reductions by migrating to a paperless manifest. The
significant cost and burden reductions identified with the e-Manifest
project will only be realized when paper manifests are minimized and
ultimately eliminated.
    While the Agency appreciates the suggestion of industry commenters
that the execution of their suggested phased approach can be
accomplished in a little more than a year's time, we believe that the
migration to widespread use of electronic manifests will likely take
several years to accomplish. In short, the phased approach presented by
commenters is commendable, but EPA would be very concerned if progress
on electronic manifesting were to stall at Phase I or Phase II, and
paper manifesting with a back-office data upload from facilities was
the end product of the effort. Progress toward the fully electronic
manifest must be maintained and monitored.
    Therefore, EPA is announcing that it intends to monitor the
progress toward electronic manifest adoption and report this progress
annually to stakeholders and to the e-Manifest Advisory Board. In
section III.J. of this preamble, EPA signaled that beginning June 30,
2021, it will not accept mailed paper manifests from facilities for
processing in e-Manifest. It is further EPA's intent that the use of
paper manifests, and the submission of data from paper manifests,
whether by image files or data file uploads, be curtailed by June 30,
2023, that is, after five years of system implementation.
    After three years of system implementation, EPA will collect
information from the system on the trends reported on paper and
electronic manifest usage, and present this information to the e-
Manifest Advisory Board. We will examine these data closely to
determine if mailed paper manifest submissions have been eliminated; if
we are on track to meet the 75% electronic manifest usage goal by year
four (which affects this rule's possible fee pivot); and if we are
seeing meaningful progress toward the widespread adoption of electronic
manifesting. If the Agency should find that meaningful progress is
lacking, we will seek the Board's advice on what combination of
incentives or restrictions (e.g., a regulatory ban of paper manifest
use after 2023), or other measures should be implemented to accomplish
the program's goal of realizing all the efficiencies and benefits of an
electronic manifest system. We will also examine the trends in relation
to the use of the hybrid or mixed manifest approach by generators, and
seek the advice of the Advisory Board on whether it is aiding or
hindering the adoption of electronic manifesting, and whether it should
perhaps be phased out as well.

N. Removal of Part 262 Appendix From the Code of Federal Regulations

    Since the adoption of the Uniform Manifest in 1984, EPA has
published the Uniform Manifest (EPA Form 8700-22), the Manifest
Continuation Sheet (EPA Form 8700-22A), and the corresponding
instructions for completing each of these forms in a distinct appendix
published at the end of 40 CFR part 262. This means that any change to
the forms required costly and time-consuming rulemaking. This practice
has continued for more than 30 years, despite the fact that the Agency
must also comply with the regulations implementing the Paperwork
Reduction Act (PRA) at 5 CFR part 1320. Specifically, pursuant to the
PRA, the Agency must receive approval from the Office of Management and
Budget (OMB) for any substantive or material change it seeks to make to
the two forms (OMB control number 2050-0039). As part of these
requirements, among other things, the Agency must include as part of
its request for OMB clearance, evidence that it informed and provided
reasonable notice to the public of changes it seeks to make to the
forms as well as an estimate of the burden resulting from the changes,
provided the public with an opportunity to comment on the changes, and
an explanation of how the Agency addressed those comments. In fact,
even if the Agency does not seek to make any changes to the forms, it
must seek approval from OMB for continued use of the forms every three
years.
    While the codification of these forms and their instructions in an
appendix to part 262 may have been a useful means of publishing the
details of the manifest forms and their use to the regulated community
in the 1980's when there was no internet, EPA believes that this
codification no longer serves that purpose. This conclusion follows
from the impending availability of these forms and their instructions
on the Agency's internet domain. Codification of these forms in part
262 is also duplicative with the management of the manifest's
information collection requirements under the PRA. The manifest and
continuation sheet forms displayed in the current appendix only display
one sample copy of the multi-copy manifest and continuation sheet
forms. These codified versions are sample displays only and cannot be
used in commerce at all, and users who need a manifest must obtain them
from the registered printers EPA has approved to distribute valid
manifests commercially. With the implementation of e-Manifest, EPA has
designated an internet domain--www.epa.gov/e-Manifest--where it will
publish and make available to users the currently required manifest
forms and instructions, serving the same purpose as the codification in
the appendix in the CFR. EPA will be able to publish, make available to
the public, and maintain the manifest forms and instructions much more
efficiently and effectively through this means on the internet domain
than by continuing to codify them in an appendix in the CFR. Moreover,
the internet domain also provides a convenient location at which EPA
can inform the public of any changes it seeks to make to the forms and
provide the public with instructions on how they can submit comments.
Any issues that the public might have concerning the paperwork
compliance burdens posed by the manifest forms and their instructions
can continue to be addressed in the Information Collection Request
(ICR) process set out in the PRA.
    EPA did not propose the removal of the manifest forms and
instructions from the part 262 appendix as part of the July 26, 2016
proposed user fee rule. The proposed user fee rule was focused
fundamentally on the user fee methodology and policy and several
pending non-fee issues related to the use of manifests. As the final
rule was being developed, EPA recognized the need to make several
minor, conforming changes to the manifest forms and instructions to
implement several of the new requirements under the e-Manifest Act. The
development of these conforming changes to the forms and instructions
accentuated for EPA the need to move away from the archaic practice of
continuing to publish the forms and instruction in the CFR rather than
publishing them to the public more

effectively on the program's internet domain. In addition, as EPA
shifts its attention in the future to integrating the manifest with the
reporting of waste receipts for the RCRA biennial report, there will be
many advantages to EPA and the public in having the integration of
these two collections addressed through the PRA process rather than a
separate rulemaking focused only on the manifest forms in the CFR
appendix.
    The Agency is including this action in this final rule, without
notice and comment, pursuant to section 553(b)(3)(A) of the
Administrative Procedure Act (APA). Section 553(b)(3)(A) of the APA
exempts notice and comment proceedings for ``interpretive rule, general
statements of policy, or rules of agency organization, procedure, or
practice.'' The decision to publish the manifest forms and instructions
though EPA's internet domain, and to address public comments on form
changes and their burden through the PRA processes rather than through
a separate rulemaking on the part 262 appendix, is primarily a matter
of how EPA organizes its forms and their procedures and practices.
Moreover, the PRA provides another adequate process by which the public
can be informed of manifest form changes and provide comment on them.
For emphasis, we note that no other form required for RCRA Subtitle C
compliance purposes (e.g., the Site ID Form, the biennial report's
waste generation or waste receipt forms) are codified in the CFR.
Removing the manifest forms and instructions from the part 262 appendix
will enable EPA to organize, manage, and maintain the manifest forms in
the same sensible and efficient manner as the other Subtitle C form
requirements.
    Therefore, EPA is including in this final rule two minor regulatory
amendments to effectuate this action. First, EPA is amending Sec.
262.20(a)(1) to remove the current language that specifies that
generators must prepare manifests ``according to the instructions
included in the appendix to this part.'' The language in quotations
above will be removed, and the language that remains will simply
require the generators to prepare a manifest, and will continue to cite
the EPA Forms 8700-22 and 8700-22A that identify the hazardous waste
manifest and continuation sheet, as well as the OMB control number
2050-0039 by which OMB manages the information collection requirements
for the manifest forms. Second, EPA is including an amendment to part
262 to remove the current manifest forms-related appendix from part
262.

IV. The Projected Economic Impacts of the Electronic Manifest

A. Introduction

    EPA estimated the costs and benefits of the final rule in a
Regulatory Impact Analysis (RIA), which is available in the docket for
this action. The RIA estimates costs and costs savings attributable to
electronic manifests. Cost savings are presented against estimated
baseline costs of the existing RCRA hazardous waste paper manifest
system. The RIA also qualitatively describes un-monetized benefits of
electronic manifests.

B. Count of RCRA Hazardous Waste Manifests

    The RIA estimates paper manifest system baseline costs and
electronic manifest costs savings at the per-manifest level. Per-
manifest costs and cost savings are then scaled up to arrive at
national estimates of paper manifest costs and electronic manifest cost
savings. Because costs and cost savings are estimated at the per-
manifest level, the count of manifests used drives costs and cost
savings estimates in the RIA analysis.
    Because all RCRA manifests will be processed centrally by EPA, the
RIA estimated the entire scope of manifest usage. While the federal
RCRA manifest (EPA forms 8700-22 and 8700-22A) has been the sole
manifest accompanying shipments of hazardous waste since the 2005
Uniform Hazardous Waste Manifest form rule, the manifest has two
applications. The first is to accompany shipments of hazardous wastes
listed in the federal RCRA regulations. The second is to accompany
shipments of state-only regulated wastes listed in various state RCRA
regulations. A total count of manifests which include both federal and
state applications was estimated in the RIA. EPA estimated an average
annual count of hazardous waste manifests used by extrapolating from
data on the generation of hazardous waste, data on the number of
shippers of hazardous waste, and by making assumptions about the likely
shipping frequency of hazardous and state-only regulated wastes. EPA
corroborated this estimate through consultations with companies that
print and sell copies of the hazardous waste manifest. The average
annual count of hazardous waste manifests used is estimated to be 3.2
million

C. Baseline Cost of the Paper Manifest System

    EPA estimated baseline costs for all aspects of the existing paper
manifest system which will be affected by electronic manifests. EPA
estimated six categories of costs accruing to: Industrial users of
paper manifests, state governments that collect paper manifests, and
EPA. The six categories of costs are:
     Paper manifest costs accruing to industry for federal
manifests,
     Paper manifest costs accruing to industry for state
manifests,
     EPA burden to process paper manifests,
     State government burden to process paper manifests,
     Industry burden to comply with hazardous waste Biennial
Report requirements, and
     State government burden to comply with hazardous waste
Biennial Report requirements.
    In total, discounting at 7% over six years, the annualized baseline
costs of the paper manifest system are estimated to be $238 million.

D. Costs Savings and Other Benefits of Electronic Manifests

    EPA estimated both monetized cost savings and other, non-monetized,
benefits of electronic manifests. Cost savings are the difference
between the pre-rule cost of manifesting and the post-rule cost of
manifesting. They are estimated to accrue to both industrial and state
government users of electronic manifests. Over the six-year period of
analysis modeled in the RIA, the annualized post-rule costs of
manifesting were estimated to be $172 million when discounting at 7%.
Since the pre-rule cost of manifesting is estimated to be $238 million,
annualized cost savings from electronic manifests are estimated to be
$66 million.
    EPA expects that electronic manifests will enhance many
stakeholders' ability to track and extract data on waste shipments by
storing and distributing these data in a central, accessible location.
EPA has identified six stakeholder groups that may benefit from better
access to manifest shipping data:
     Members of industry that use the manifest for tracking
waste shipments should know the status of their shipments faster than
under the current paper based system. They should also benefit from the
increased legibility of electronic manifest records compared to current
paper manifests.
     Federal and state government RCRA enforcement officials,
who use manifest data in the course of their investigations of RCRA
compliance should benefit from the centralized storage of manifest data
and the greater accessibility of these data under e-Manifest.

     Emergency responders should benefit from increased access
to data on the generation, shipment, and storage of hazardous wastes in
the event that a spill or other accident involving hazardous waste
occurs.
     Research institutions from academia to industry may find
novel uses for manifest data.
     Communities near RCRA facilities will have better
information on the generation, shipment, treatment, storage, and
disposal of hazardous waste near their communities.
    EPA has not attempted to quantify the value of this benefit.

               Summary of Estimated Costs and Cost Savings
            [Annualized and discounted at 7% over six years]
------------------------------------------------------------------------
   Pre-rule costs ($        Post-rule costs ($        Cost savings ($
        million)                 million)                million)
------------------------------------------------------------------------
              238                      172                      66
------------------------------------------------------------------------

V. State Implementation

A. Applicability of Rules in Authorized States--General Principles

    Under section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under section 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
    Prior to the enactment of the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and of the Hazardous Waste Electronic Manifest
Establishment Act, a state with final RCRA authorization administered
its hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
administer the program and issue RCRA permits. When new, more stringent
federal requirements were promulgated, a state with final RCRA
authorization was obligated to enact equivalent authorities within
specified time frames. However, the new federal requirements did not
take effect in an authorized state until the state adopted the federal
requirements as state law.
    In contrast, with the adoption of RCRA section 3006(g), which was
added by HSWA, new requirements and prohibitions imposed under the HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by section 3006(g)
to implement HSWA-based requirements and prohibitions in authorized
states until the state is granted authorization to do so. While states
must still adopt HSWA related provisions as state law to retain final
authorization, EPA implements the HSWA provisions in authorized states
until the states are authorized to do so.
    The e-Manifest Act contains similar authority to HSWA with respect
to federal and state implementation responsibilities in RCRA authorized
states. Section 2(g)(3) of the e-Manifest Act, entitled Administration,
provides that EPA shall carry out regulations promulgated under the Act
in each state unless the state program is fully authorized to carry out
such regulations in lieu of EPA. Also, section 2(g)(2) of the Act
provides that any regulation promulgated by EPA under the e-Manifest
Act shall take effect in each state (under federal authority) on the
same effective date that EPA specifies in its promulgating regulation.
The result is that regulations promulgated by EPA under the e-Manifest
Act, like HSWA-based regulations, are implemented and enforced by EPA
until the states are authorized to carry them out.
    Authorized states generally are required to modify their programs
when EPA promulgates federal requirements that are more stringent or
broader in scope than existing federal requirements. However, as EPA
explained previously when adopting manifest form revisions to fully
standardize the RCRA manifest, the hazardous waste manifest is treated
differently. Rather, EPA requires strict consistency in the manifest
requirements, so that any EPA changes to federal manifest requirements
that are authorizable to states must be implemented consistently in the
states, regardless whether the change might be considered more
stringent or broader in scope than existing requirements. See 70 FR
10776 at 10810 (March 4, 2005). This is so, whether the manifest
program change is based on base RCRA or on e-Manifest Act authority.

B. Legal Authority for This Rule's Regulatory Changes and Implications

    Only one of the authorizable \11\ regulatory changes included in
this final rule is based on the so-called base RCRA or 1976 RCRA
statutory authority.\12\ This regulatory provision is the Sec.
263.21(b) regulation addressing en route changes to transporters. This
is not a user fee related provision, but a more general change in the
requirements governing the use of the hazardous waste manifest by
hazardous waste transporters. Because this provision is promulgated
under RCRA base program authority, this regulatory change will not
become effective in authorized states until the regulatory change is
adopted under state law and EPA authorizes the state program
modification. States must adopt this regulatory change in their
authorized programs to maintain manifest program consistency. In
unauthorized states, this regulation will become effective on the
effective date of this final rule, which is June 30, 2018.
---------------------------------------------------------------------------

    \11\ EPA uses the term authorizable to distinguish those
provisions of the final rule that can be administered and enforced
by a state as a part of its authorized RCRA program from those
provisions, such as determining and collecting e-Manifest user fees,
that can be administered and enforced only by EPA.
    \12\ The final rule's changes to the manifest form printing
specifications at Sec.  262.21(f)(5) through (7) are also issued
under base RCRA authority. However, as the manifest printing
specifications are not authorizable, the changes to the printing
specification will be effective federally on the final rule's
effective date, and are not affected by state program modifications.
---------------------------------------------------------------------------

    Most of the remaining regulatory changes promulgated in this final
rule are issued under the authority of the e-Manifest Act. These
provisions will be implemented and enforced by EPA in all states
consistently on the effective date of this final rule. States must
adopt the authorizable e-Manifest Act-based provisions of this final
rule in order to enforce them under state law, and to maintain manifest
program consistency. However, EPA will continue to implement and
enforce these provisions until such time as the state modifies its
authorized program to adopt these provisions and receives authorization
from EPA for the program modification.

C. Authorizable e-Manifest Act Provisions

    The authorizable provisions promulgated under e-Manifest Act
authority are set out in the following table listing the regulatory
section of 40 CFR that is affected and the subject of the regulation.
These particular provisions listed below can be administered and
enforced by states after they are authorized for these provisions.

------------------------------------------------------------------------
              Regulation                            Subject
------------------------------------------------------------------------
Sec.   260.4.........................  Copy submission requirements for
                                        interstate shipments.
Sec.   260.5.........................  Applicability of e-Manifest
                                        system and fees to facilities
                                        receiving state-only regulated
                                        wastes.
Sec.   262.24(c)(1)..................  Use of mixed paper/electronic
                                        manifests.
Sec.   262.24(h).....................  Generators and post-receipt data
                                        corrections.
Sec.   263.20(a)(9)..................  Transporters and post-receipt
                                        data corrections.
Sec.   264.71(a)(2)(v), Sec.           Receiving facilities' required
 265.71(a)(2)(v).                       paper manifest submissions to
                                        system.
Sec.   264.71(j), Sec.   265.71(j)...  Imposition of user fees on
                                        receiving facilities for their
                                        manifest submissions.
Sec.   264.71(l), Sec.   265.71(l)...  Receiving facilities and post-
                                        receipt data corrections.
------------------------------------------------------------------------

D. Provisions of the Final Rule That Are Not Authorizable

    There are some provisions in this final rule that can be
administered and enforced only by EPA, and not by authorized states.
The first group of non-authorizable requirements included in this final
rule are Sec.  262.21(f)(5), (6), and (7). These provisions together
announce the revised printing specification for the five-copy paper
manifest and continuation sheet paper forms, the revised copy
distribution requirements to be printed on each copy of the form, and
the revised specification for printing the appropriate manifest
instructions on the back of the form copies. These printing
specifications apply to registered manifest printers and are
administered solely by EPA. State programs are not required to take any
action respecting these regulatory changes to the printing
specifications, and they will take effect in all states on the
effective date of this final rule.
    The second group of non-authorizable requirements in this final
rule consists of the fee methodology and related fee implementation
provisions set forth in subpart FF of 40 CFR parts 264 and 265. These
requirements include definitions relevant to the program's fee
calculations (Sec.  264.1311, Sec.  265.1311), the user fee calculation
methodology (Sec.  264.1312, Sec.  265.1312), the user fee revisions
and publication process (Sec.  264.1313, Sec.  265.1313), how to make
user fee payments (Sec.  264.1314, Sec.  265.1314), sanctions for
delinquent payments (Sec.  264.1315, Sec.  265.1315), and the informal
fee dispute process (Sec.  264.1316, Sec.  265.1316). These user fee
provisions in subpart FF are promulgated under the authority of the e-
Manifest Act, and will be implemented and enforced by EPA on the
effective date of this final rule and perpetually thereafter. The user
fee provisions of subpart FF describe the methods and processes that
EPA alone will use in setting fees to recover its program costs, and in
administering and enforcing the user fee requirements. Therefore,
states cannot be authorized to implement or enforce any of the subpart
FF provisions.
    Although states cannot receive authorization to administer or
enforce the federal government's e-Manifest program user fees,
authorized state programs must still include the content of or
references to the subpart FF requirements. This is necessary to ensure
that members of their regulated communities will be on notice of their
responsibilities to pay user fees to the EPA e-Manifest system when
they utilize the system. Authorized state programs must either adopt or
reference appropriately the user fee requirements of this final
rule.\13\ However, when a state adopts the user fee provisions of this
rule, the state must not replace federal or EPA references with state
references or terms that would suggest the collection or implementation
of these user fees by the state. Alternatively, an authorized state may
reference the subpart FF fee provisions appropriately by simply
adopting state law counterparts to Sec. Sec.  264.71(j) and 265.71(j)
that include all the detailed citations to the subpart FF provisions as
set out in the Sec. Sec.  264.71(j) and 265.71(j) provisions of this
final rule.
---------------------------------------------------------------------------

    \13\ EPA believes it is important that states adopt or reference
EPA's subpart FF user fee provisions in their state programs, so
that all receiving facilities in the states are on notice of their
obligations to submit their final manifest copies to the system and
to pay user fees to EPA for the processing of their manifests. EPA
has added Sec.  260.5 to provide federal notice of these e-Manifest
Act responsibilities to the facilities that receive state-only
regulated wastes that are tracked with a RCRA manifest per state
law. However, the adoption by the states of appropriate state
program revisions alerting such facilities that receive state-only
regulated wastes to these e-Manifest Act requirements should greatly
enhance the notice afforded these receiving facilities and their
rate of compliance.
---------------------------------------------------------------------------

E. Non-Fee Related Provisions of the Final Rule

    In addition to the Sec.  263.21(b) provision discussed above
addressing transporter changes en route, two other non-fee related
provisions are included in this final rule that the states will be
required to adopt as components of their authorized programs. These
provisions include: (1) The amendments to Sec. Sec.  264.71(l) and
265.71(l), addressing post-receipt manifest data corrections in the e-
Manifest data system; and (2) the amendment at Sec.  262.24(c)(1),
allowing a mixed paper and electronic manifest to be used by certain
generators. Each of these non-fee related amendments must be adopted by
authorized state programs to maintain consistency with the federal RCRA
program. Moreover, because all three of these provisions address the
use of the RCRA hazardous waste manifest or the national e-Manifest
system to be established under the e-Manifest Act, these provisions
must be adopted uniformly and fully consistently with the promulgated
federal requirements. Because these provisions are based on e-Manifest
Act authority, they will be implemented and enforced by EPA in all
states on the effective date of this final rule, and will be
implemented by EPA until the states obtain RCRA authorization for these
program modifications.
    This final rule also includes two conforming changes to 40 CFR
271.12, addressing the requirements for hazardous waste management
facilities that must be included in authorized state programs to
maintain consistency with the federal program. The first change at
Sec.  271.12(k) clarifies that authorized state programs must include
requirements for hazardous waste management facilities and facilities
receiving state regulated wastes under manifests to pay user fees to
EPA to recover all costs related to the development and operation of an
electronic hazardous waste manifest system (e-Manifest system). The
second such change at Sec.  271.12(i)(2) clarifies that authorized
programs must include a requirement that designated or receiving
facilities submit a signed copy of each paper manifest (or the data
from paper manifests) to the EPA's e-Manifest system, in lieu of
sending signed copies directly to either the origination or destination
states. The latter modification is necessary to effectuate the intent
of Congress that under the e-Manifest Act, the e-Manifest system will
operate as a national, one-stop reporting hub for manifests and data.
When e-Manifest is operational, EPA expects that the states with such
tracking

programs will obtain their manifest copies and data from e-Manifest,
rather than requiring regulated entities to mail their manifests to
these states.\14\
---------------------------------------------------------------------------

    \14\ One exception we note is that EPA will not collect in e-
Manifest generator or transporter copies of any paper manifests that
continue in use after e-Manifest is operational. States that wish to
continue to obtain these paper generator or transporter copies will
need to continue to require their direct submission to the states.
---------------------------------------------------------------------------

    Also, several of these states with manifest tracking programs
assess their own fees to offset the costs of administering their state
manifest tracking programs, or they may assess waste generation or
management fees to support state programs, based on manifest data in
their state tracking systems. It is likely that many of these state
manifest tracking programs and related fees may continue to operate for
the foreseeable future. EPA emphasizes that the federal user fees that
are the subject of this regulation are solely to offset EPA's costs in
developing and operating the e-Manifest system. It is not the purpose
of this regulation to suspend, reduce, or otherwise impact the existing
state fees that support states' manifest tracking programs or the fees
levied by state programs on waste generation or management. EPA is not
now in a position to predict what, if any, impact this federal user fee
regulation may have on any such state fee collection programs.

VI. Estimated Fee Schedule for Initial Operation Period

    EPA has developed an illustrative estimate of the program's initial
user fees based on the best system use, system cost, and program budget
projections available at the time of this rule's publication. These
estimates are for user fees in the first year of system operation. They
are driven by assumptions about the magnitude and distribution of
manifest types that the system will receive. These assumptions are
explained in detail in Chapter 5 of the RIA that accompanies this
rulemaking. These fees also incorporate estimates of costs of setting
up and hosting the system, and the costs of running the paper
processing center. At the time of this rule's publication EPA does not
have a final budget for the program in Fiscal Year 2018, nor does EPA
have all the contracts in place for setting up and hosting the system,
and for running the paper processing center. For this reason, the
following table of fee estimates should be interpreted as rough
approximations of the final fees. EPA will publish a final two-year
schedule of user fees on the e-Manifest website, at www.epa.gov/e-Manifest, when more information about the e-Manifest budget and
contracts awards becomes available.
    The fee estimates presented in the following table are per-manifest
fees for each manifest submission type. They are derived from the
proposed rule's Option 2, Marginal Cost Differentiated Fee methodology,
which in this final rule, EPA will rely on for setting fee levels for
at least the initial four years of program implementation.

           Year 1 Marginal Cost Manifest Fees by Manifest Type
                                 [2017$]
------------------------------------------------------------------------

------------------------------------------------------------------------
Manifest submission type                                      Year 1 fee
------------------------------------------------------------------------
Paper Manifest Types..............  Mailed Paper........          $20.00
                                    Image Uploads.......           13.00
                                    Data File Uploads...            7.00
Electronic Manifests (includes      Electronic..........            4.00
 hybrid).
------------------------------------------------------------------------

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review because it may
raise novel legal or policy issues. Any changes made in response to OMB
recommendations have been documented in the docket for this action. The
EPA prepared a regulatory impact analysis of the potential costs and
benefits associated with this action, which is available in the docket.

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.

C. Paperwork Reduction Act (PRA)

    The information collection activities in this final rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 0801.22. You can find
a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
    This implementation of e-Manifest and this Fee Rule will impose new
information collection requirements on the regulated community,
although we expect that the net effect will be to significantly reduce
the paperwork burden relative to the paper manifest system. Although
the primary effect of the e-Manifest implementation will be to replace
current paper-based information requirements with electronic-based
requirements to submit or retain the same shipment information, there
could be minor additions or changes to the information collection
requirements, such as information that may be provided to establish
user accounts and fee payment accounts, information submitted for
identity management, as well as waste profile or other information that
may be useful for the creation and submission of electronic manifests.
Additionally, EPA did not update the information collection burden
associated with the regulatory changes to the manifest system announced
in the ``One Year Rule.'' While EPA acknowledged that the adoption of
e-Manifest will change the manner in which information will be
collected and transmitted, the system was not currently available and
consequently the ``One Year Rule'' did

not change the information collected by the hazardous waste manifest,
nor the scope of the wastes that are now subject to manifesting. EPA
indicated that it would update the information collection burden
estimates in this user fee rule, which are as follows:
    Respondents/affected entities: Private waste handlers.
    Respondent's obligation to respond: Mandatory (RCRA 3002(a)(5)).
    Estimated number of respondents: 203,927.
    Frequency of response: Monthly (for paper copies), On occasion.
    Total estimated burden: 2,608,292 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
    Total estimated cost: $128,661,312, includes $38,784,093 annualized
capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations are listed in 40 CFR part 9. When OMB approves this
ICR, the Agency will announce that approval in the Federal Register and
publish a technical amendment to 40 CFR part 9 to display the OMB
control number for the approved information collection activities
contained in this final rule.

D. Regulatory Flexibility Analysis (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant adverse-economic impact on a
substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule.
    The small entities directly regulated by this final rule include
entities that receive shipments of hazardous waste across various
industries, including, but not limited to, NAICS 562211 Hazardous Waste
Treatment and Disposal; NAICS 562920 Materials Recovery Facilities;
NAICS 331410 Nonferrous Metal (except Aluminum) Smelting and Refining;
NAICS 331492 Secondary Smelting, Refining, and Alloying of Nonferrous
Metal (except Copper and Aluminum); NAICS 523910 Miscellaneous
Intermediation; and NAICS 562219 Other Nonhazardous Waste Treatment and
Disposal. The RIA considers as potentially small any firm within the
affected universe that cannot be positively identified as not small
according to SBA's size standards.
    The Regulatory Impact Analysis (RIA) conducted for this rulemaking
found that the e-Manifest rule would reduce the compliance burden
associated with manifesting shipments of hazardous waste. The RIA
estimates that in the initial six years after the e-Manifest system is
operational, annualized savings from manifest related burden reduction
would equal approximately $66 million per year when discounted at 7%.
The RIA estimates that these savings would accrue to firms of all
sizes, including 70 potentially small firms, that adopt electronic
manifests as well as to firms that adopt one of the two paper manifest
submission options other than postal mail submissions. The RIA
concludes the e-Manifest rule will not have a significant adverse
economic impact on a substantial number of small entities.
    As a precaution, the RIA also estimates the impacts of the e-
Manifest rule under the unlikely hypothetical scenario in which small
firms do not adopt e-Manifest but instead continue to submit paper
manifests via postal mail. As a consequence, these firms might not
realize any savings from the e-Manifest rule but could instead face
increasing costs from e-Manifest fees. The small entities examined in
this worst case analysis consist of 70 potentially small firms located
within the relevant industries. Potential costs for these firms are
estimated by multiplying the cost of a paper manifest submission fee by
the number of manifests a firm is estimated to submit within a year.
The number of manifests a firm is estimated to submit is based on the
amount of hazardous waste they receive. For each firm, the cost of fees
is then compared to estimated revenues. Even under these unlikely and
highly conservative assumptions, the RIA finds that the rule will not
have a significant adverse economic impact on a substantial number of
small entities, which the RIA considers as revenue impacts of greater
than 1% per year for 20% or more of small entities. The RIA, in
particular Section 7.2, describes in greater depth how EPA assembled a
universe of small entities, how EPA estimated the hypothetical impacts
of the e-Manifest rule under these conservative assumptions, and the
criteria EPA used in this instance to determine significant adverse
economic impacts on a substantial number of small entities. The RIA is
available in the docket for this rulemaking.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.

F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action does not have tribal implications as specified in
Executive Order 13175. It will not impose any new requirements on
tribal officials nor will it impose substantial direct compliance costs
on them. This action will not create a mandate for tribal governments,
i.e., there are no authorized tribal programs that will require
revision and reauthorization on account of the e-Manifest system and
regulatory program requirements. Nor do we believe that the e-Manifest
system and this Fee Rule will impose any enforceable duties on these
entities. Thus, Executive Order 13175 does not apply to this action.

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action requires the payment of
user fees from certain members of the hazardous waste management
industry for their use of an electronic manifest

system, which will not have a significant effect on the supply,
distribution or use of energy.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    The EPA concludes that this action does not have potential
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994), because it does not affect what facilities,
materials, or activities are subject to RCRA. Thus, this action does
not affect the level of protection provided to human health or the
environment. When implemented, the e-Manifest system could improve
access for minority, low-income or indigenous populations and
communities to information on waste movements to, from, or through
neighborhoods where these populations live and work. Thus, the system
could only have beneficial effects on such populations and communities.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects

40 CFR Part 260

    Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.

40 CFR Part 262

    Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements.

40 CFR Part 263

    Environmental protection, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements.

40 CFR Part 264

    Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Fees.

40 CFR Part 265

    Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements, Fees.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure
Hazardous materials transportation, Hazardous waste, Reporting and
recordkeeping requirements.

    Dated: December 20, 2017.
E. Scott Pruitt,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR parts
260, 262, 263, 264 and 265, and 271 as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

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1. The authority citation for part 260 is revised to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934,
6935, 6937, 6938, 6939, 6939g, and 6974.

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2. Add Sec. Sec.  260.4 and 260.5 to subpart A to read as follows:

Sec.  260.4   Manifest copy submission requirements for certain
interstate waste shipments.

    (a) In any case in which the state in which waste is generated, or
the state in which waste will be transported to a designated facility,
requires that the waste be regulated as a hazardous waste or otherwise
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;
    (3) Submit to the e-Manifest system a final copy of the manifest
for data processing purposes; and
    (4) Pay the appropriate per manifest fee to EPA for each manifest
submitted to the e-Manifest system, subject to the fee determination
methodology, payment methods, dispute procedures, sanctions, and other
fee requirements specified in subpart FF of part 264 of this chapter.

Sec.  260.5   Applicability of electronic manifest system and user fee
requirements to facilities receiving state-only regulated waste
shipments.

    (a) For purposes of this section, ``state-only regulated waste''
means:
    (1) A non-RCRA waste that a state regulates more broadly under its
state regulatory program, or
    (2) A RCRA hazardous waste that is federally exempt from manifest
requirements, but not exempt from manifest requirements under state
law.
    (b) In any case in which a state requires a RCRA manifest to be
used under state law to track the shipment and transportation of a
state-only regulated waste to a receiving facility, the facility
receiving such a waste shipment for management shall:
    (1) Comply with the provisions of Sec. Sec.  264.71 (use of the
manifest) and 264.72 (manifest discrepancies) of this chapter; and
    (2) Pay the appropriate per manifest fee to EPA for each manifest
submitted to the e-Manifest system, subject to the fee determination
methodology, payment methods, dispute procedures, sanctions, and other
fee requirements specified in subpart FF of part 264 of this chapter.

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

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3. The authority citation for part 262 is revised to read as follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and
6939g.

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4. Section 262.20 is amended by revising paragraphs (a)(1) and (2) to
read as follows:

Sec.  262.20   General requirements.

    (a)(1) A generator that transports, or offers for transport a
hazardous waste for offsite treatment, storage, or disposal, or a
treatment, storage, or disposal facility that offers for transport a
rejected hazardous waste load, must prepare a Manifest (OMB Control
number 2050-0039) on EPA Form 8700-22, and, if necessary, EPA Form
8700-22A.
    (2) The revised manifest form and procedures in 40 CFR 260.10,
261.7, 262.20, 262.21, 262.27, 262.32, 262.34, 262.54, and 262.60,
shall not apply until September 5, 2006. The manifest form and
procedures in 40 CFR 260.10, 261.7, 262.20, 262.21, 262.32, 262.34,
262.54, and 262.60, contained in the 40 CFR, parts 260 to 265, edition
revised as of July 1, 2004, shall be applicable until September 5,
2006.
* * * * *

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5. Section 262.21 is amended by revising paragraphs (f)(5) and (6) and
(f)(7) and adding paragraph (f)(8) to read as follows:

Sec.  262.21  Manifest tracking numbers, manifest printing, and
obtaining manifests.

* * * * *
    (f) * * *

    (5) The manifest and continuation sheet must be printed as five-
copy forms. Copy-to-copy registration must be exact within 1/32nd of an
inch. Handwritten and typed impressions on the form must be legible on
all five copies. Copies must be bound together by one or more common
stubs that reasonably ensure that they will not become detached
inadvertently during normal use.
    (6) Each copy of the manifest and continuation sheet must indicate
how the copy must be distributed, as follows:
    (i) Page 1 (top copy): ``Designated facility to EPA's e-Manifest
system'';
    (ii) Page 2: ``Designated facility to generator'';
    (iii) Page 3: ``Designated facility copy'';
    (iv) Page 4: ``Transporter copy''; and
    (v) Page 5 (bottom copy): ``Generator's initial copy.''
    (7) The instructions for the manifest form (EPA Form 8700-22) and
the manifest continuation sheet (EPA Form 8700-22A) shall be printed in
accordance with the content that is currently approved under OMB
Control Number 2050-0039 and published to the e-Manifest program's
website. The instructions must appear legibly on the back of the copies
of the manifest and continuation sheet as provided in this paragraph
(f). The instructions must not be visible through the front of the
copies when photocopied or faxed.
    (i) Manifest Form 8700-22.
    (A) The ``Instructions for Generators'' on Copy 5;
    (B) The ``Instructions for International Shipment Block'' and
``Instructions for Transporters'' on Copy 4; and
    (C) The ``Instructions for Treatment, Storage, and Disposal
Facilities'' on Copy 3.
    (ii) Manifest Form 8700-22A.
    (A) The ``Instructions for Generators'' on Copy 5;
    (B) The ``Instructions for Transporters'' on Copy 4; and
    (C) The ``Instructions for Treatment, Storage, and Disposal
Facilities'' on Copy 3.
    (8) The designated facility copy of each manifest and continuation
sheet must include in the bottom margin the following warning in
prominent font: ``If you received this manifest, you have
responsibilities under the e-Manifest Act. See instructions on reverse
side.''
* * * * *

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6. Section 262.24 is amended by:
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a. Revising paragraphs (c) and (e);
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b. Removing and reserving paragraph (g); and
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c. Adding paragraph (h).
    The revision and addition read as follows:

Sec.  262.24   Use of the electronic manifest.

* * * * *
    (c) Restriction on use of electronic manifests. A generator may use
an electronic manifest for the tracking of waste shipments involving
any RCRA hazardous waste only if it is known at the time the manifest
is originated that all waste handlers named on the manifest participate
in the use of the electronic manifest, except that:
    (1) A generator may sign by hand and retain a paper copy of the
manifest signed by hand by the initial transporter, in lieu of
executing the generator copy electronically, thereby enabling the
transporter and subsequent waste handlers to execute the remainder of
the manifest copies electronically.
    (2) [Reserved]
* * * * *
    (e) Special procedures when electronic manifest is unavailable. If
a generator has prepared an electronic manifest for a hazardous waste
shipment, but the electronic manifest system becomes unavailable for
any reason prior to the time that the initial transporter has signed
electronically to acknowledge the receipt of the hazardous waste from
the generator, then the generator must obtain and complete a paper
manifest and if necessary, a continuation sheet (EPA Forms 8700-22 and
8700-22A) in accordance with the manifest instructions, and use these
paper forms from this point forward in accordance with the requirements
of Sec.  262.23.
* * * * *
    (h) Post-receipt manifest data corrections. After facilities have
certified to the receipt of hazardous wastes by signing Item 20 of the
manifest, any post-receipt data corrections may be submitted at any
time by any interested person (e.g., waste handler) named on the
manifest. Generators may participate electronically in the post-receipt
data corrections process by following the process described in Sec.
264.71(l) of this chapter, which applies to corrections made to either
paper or electronic manifest records.

Appendix to Part 262 [Removed]

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7. Remove the appendix to part 262.

PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

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8. The authority citation for part 263 is revised to read as follows:

    Authority:  42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938, and
6939g.

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9. Section 263.20 is amended by removing and reserving paragraph (a)(8)
and adding paragraph (a)(9) to read as follows:

Sec.  263.20   The manifest system.

* * * * *
    (a) * * *
    (9) Post-receipt manifest data corrections. After facilities have
certified to the receipt of hazardous wastes by signing Item 20 of the
manifest, any post-receipt data corrections may be submitted at any
time by any interested person (e.g., waste handler) named on the
manifest. Transporters may participate electronically in the post-
receipt data corrections process by following the process described in
Sec.  264.71(l) of this chapter, which applies to corrections made to
either paper or electronic manifest records.
* * * * *

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10. Section 263.21 is revised to read as follows:

Sec.  263.21   Compliance with the manifest.

    (a) Except as provided in paragraph (b) of this section, the
transporter must deliver the entire quantity of hazardous waste which
he or she has accepted from a generator or a transporter to:
    (1) The designated facility listed on the manifest; or
    (2) The alternate designated facility, if the hazardous waste
cannot be delivered to the designated facility because an emergency
prevents delivery; or
    (3) The next designated transporter; or
    (4) The place outside the United States designated by the
generator.
    (b)(1) Emergency condition. If the hazardous waste cannot be
delivered in accordance with paragraph (a)(1), (2), or (4) of this
section because of an emergency condition other than rejection of the
waste by the designated facility or alternate designated facility, then
the transporter must contact the generator for further instructions and
must revise the manifest according to the generator's instructions.
    (2) Transporters without agency authority. If the hazardous waste
is not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter is
without contractual authorization from the generator to act as the
generator's agent with respect to transporter additions or
substitutions, then the current transporter must contact the generator
for further instructions prior to making any revisions to the
transporter designations on the manifest. The current transporter may
thereafter make such revisions if:

    (i) The hazardous waste is not delivered in accordance with
paragraph (a)(3) of this section because of an emergency condition; or
    (ii) The current transporter proposes to change the transporter(s)
designated on the manifest by the generator, or to add a new
transporter during transportation, to respond to an emergency, or for
purposes of transportation efficiency, convenience, or safety; and
    (iii) The generator authorizes the revision.
    (3) Transporters with agency authority. If the hazardous waste is
not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter has
authorization from the generator to act as the generator's agent, then
the current transporter may change the transporter(s) designated on the
manifest, or add a new transporter, during transportation without the
generator's prior, explicit approval, provided that:
    (i) The current transporter is authorized by a contractual
provision that provides explicit agency authority for the transporter
to make such transporter changes on behalf of the generator;
    (ii) The transporter enters in Item 14 of each manifest for which
such a change is made, the following statement of its agency authority:
``Contract retained by generator confers agency authority on initial
transporter to add or substitute additional transporters on generator's
behalf;'' and
    (iii) The change in designated transporters is necessary to respond
to an emergency, or for purposes of transportation efficiency,
convenience, or safety.
    (4) Generator liability. The grant by a generator of authority to a
transporter to act as the agent of the generator with respect to
changes to transporter designations under paragraph (b)(3) of this
section does not affect the generator's liability or responsibility for
complying with any applicable requirement under this chapter, or grant
any additional authority to the transporter to act on behalf of the
generator.
    (c) If hazardous waste is rejected by the designated facility while
the transporter is on the facility's premises, then the transporter
must obtain the following:
    (1) For a partial load rejection or for regulated quantities of
container residues, a copy of the original manifest that includes the
facility's date and signature, and the Manifest Tracking Number of the
new manifest that will accompany the shipment, and a description of the
partial rejection or container residue in the discrepancy block of the
original manifest. The transporter must retain a copy of this manifest
in accordance with Sec.  263.22, and give the remaining copies of the
original manifest to the rejecting designated facility. If the
transporter is forwarding the rejected part of the shipment or a
regulated container residue to an alternate facility or returning it to
the generator, the transporter must obtain a new manifest to accompany
the shipment, and the new manifest must include all of the information
required in 40 CFR 264.72(e)(1) through (6) or (f)(1) through (6) or 40
CFR 265.72(e)(1) through (6) or (f)(1) through (6).
    (2) For a full load rejection that will be taken back by the
transporter, a copy of the original manifest that includes the
rejecting facility's signature and date attesting to the rejection, the
description of the rejection in the discrepancy block of the manifest,
and the name, address, phone number, and Identification Number for the
alternate facility or generator to whom the shipment must be delivered.
The transporter must retain a copy of the manifest in accordance with
Sec.  263.22, and give a copy of the manifest containing this
information to the rejecting designated facility. If the original
manifest is not used, then the transporter must obtain a new manifest
for the shipment and comply with 40 CFR 264.72(e)(1) through (6) or 40
CFR 265.72(e)(1) through (6).

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

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11. The authority citation for part 264 is revised to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6924, 6925, and 6939g.

Subpart E--Manifest System, Recordkeeping, and Reporting

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12. Section 264.71 is amended by revising paragraphs (a)(2) and (j) and
adding paragraph (l) to read as follows:

Sec.  264.71   Use of manifest system.

    (a) * * *
    (2) If the facility receives a hazardous waste shipment accompanied
by a manifest, the owner, operator, or his agent must: