[Federal Register Volume 83, Number 2 (Wednesday, January 3, 2018)]
[Rules and Regulations]
[Pages 420-462]
[FR Doc No: 2017-27788]

Vol. 83

Wednesday,

No. 2

January 3, 2018

Part II

Environmental Protection Agency

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40 CFR Part 260, 262, et al.

Hazardous Waste Management System; User Fees for the Electronic
Hazardous Waste Manifest System and Amendments to Manifest Regulations;
Final Rule

Federal Register / Vol. 83 , No. 2 / Wednesday, January 3, 2018 /
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 262, 263, 264, 265, and 271

[EPA-HQ-OLEM-2016-0177; FRL-9965-27-OLEM]
RIN 2050-AG80

Hazardous Waste Management System; User Fees for the Electronic
Hazardous Waste Manifest System and Amendments to Manifest Regulations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
establishing by this regulation the methodology the Agency will use to
determine and revise the user fees applicable to the electronic and
paper manifests to be submitted to the national electronic manifest
system (e-Manifest system) that EPA is developing under the Hazardous
Waste Electronic Manifest Establishment Act. After the e-Manifest
system's implementation date, certain users of the hazardous waste
manifest will be required to pay a prescribed fee for each electronic
and paper manifest they use and submit to the national system so that
EPA can recover the costs of developing and operating the national e-
Manifest system. This final rule also announces the date when EPA
expects the system to be operational and available to users. EPA will
begin accepting manifest submissions and collecting the corresponding
manifest submission fees on this date.
    In addition, this action announces final decisions and regulations
relating to several non-fee related matters that were included in the
proposed rule. This includes modifying the existing regulations to:
allow changes to the transporters designated on a manifest while the
shipment is en route; describe how data corrections may be made to
existing manifest records in the system; and amend the previous e-
Manifest regulation (the One Year Rule) to allow the use, in certain
instances, of a mixed paper and electronic manifest to track a
hazardous waste shipment.

DATES: This final rule is effective on June 30, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2016-0177. All documents in this docket are listed in
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information for which disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically at www.regulations.gov or in hard copy
at the EPA Docket Center Reading Room. Please see https://www.epa.gov/dockets/epa-docket-center-reading-room or call<PHONE_NUMBER> for more
information on the Docket Center Reading Room.

FOR FURTHER INFORMATION CONTACT: Richard LaShier, Office of Resource
Conservation and Recovery,<PHONE_NUMBER>, [email protected], or
Bryan Groce, Office of Resource Conservation and Recovery, (703) 308-
8750, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This rule affects those entities required to use the hazardous
waste manifest, a regulated universe that includes approximately 80,000
federally regulated entities, and an equal or greater number of
entities handling state-only regulated wastes in at least 45 industries
and is expected to result in a net cost savings for them amounting to
$66 million per year, when discounted at 7% and annualized over 6
years. Further information on the economic effects of this action can
be found in section IV of this preamble. These industries are involved
in generating, transporting, and receiving several million tons
annually of wastes that are hazardous under Subtitle C of the Resource
Conservation and Recovery Act (RCRA), or, are regulated by states and
also are subject to tracking with the RCRA hazardous waste manifest.
EPA estimates that these entities currently use between three and five
million hazardous waste manifests (EPA Form 8700-22) and continuation
sheets (EPA Form 8700-22A) to track RCRA hazardous and state-only
regulated wastes from generation sites to off-site receiving
facilities. The affected entities include hazardous waste generators,
hazardous waste transporters, and owners or operators of treatment,
storage, and disposal facilities (TSDFs), as well as the corresponding
entities that handle state-only regulated wastes subject to tracking
with the RCRA manifest.
    However, the user fee obligations that are the primary focus of
this final rule will mostly affect a subset of these regulated
entities, particularly, the several hundred commercial RCRA TSDFs and
the corresponding receiving facilities for state-only regulated wastes
under RCRA manifests. As explained in section III.A. of this preamble,
this final rule focuses the payment and collection of e-Manifest
related user fees on these several hundred commercial TSDFs and state-
only waste receiving facilities because EPA concludes that this is the
most effective and efficient means for collecting user fees via the e-
Manifest system. The final rule action includes a tentative fee
schedule for the initial two years of system operations, based on the
most current projections of program costs available to the Agency at
the time of development of this final rule action. EPA will update the
tentative fee schedule with a final fee schedule for the initial two
years of system operations when we obtain more complete program cost
data, and we will publish the final fee schedule to the e-Manifest
program's website 90 days prior to the system launch. The affected
entities and categories include, but are not necessarily limited to:

------------------------------------------------------------------------
                                                         Examples of
         NAICS description            NAICS code    potentially affected
                                                          entities
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Transportation and Warehousing....           48-49  Transportation of
                                                     hazardous waste.
Waste Management and Remediation               562  Facilities that
 Services.                                           manage hazardous
                                                     waste.
------------------------------------------------------------------------

    This table provides a guide for readers regarding the entities that
will be regulated by this action. The table lists the types of entities
that EPA is aware to be involved in the activities affected by the RCRA
manifest and regulated by this action. Other types of entities not
listed in this table also could be regulated by this final rule. To
determine whether your entity is regulated by this action, you should
carefully examine the applicability criteria found in title 40 of the
CFR parts 260, 262, 263, 264, and 265. If you have questions regarding
the applicability of this action to a particular entity, consult the
persons listed in the FOR FURTHER INFORMATION CONTACT section.

B. What action is the Agency taking?

    The Agency is publishing its final rule action announcing
requirements that establish the methodology and process that EPA will
use to determine and revise the e-Manifest user fees that EPA has
determined to be necessary to recover the costs of developing and
operating the national e-Manifest system. These include the costs of
processing data from both electronic and paper manifests that will be
submitted to the national e-Manifest system after the system's
implementation date. The Agency also is announcing final decisions on
several non-fee related proposals that affect the use of the manifest
and manifest data quality, including changes to designated transporters
during transportation, a process for manifest data corrections, and the
circumstances under which EPA will allow a ``hybrid'' or mixed paper/
electronic manifest to be used to track a specific shipment.

C. What is the Agency's authority for taking this action?

    The authority to issue this rule is found in sections 1002,
2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), and as
amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901,
6906 et. seq., 6912, 6921-6925, 6937, and 6938, and as further amended
by the Hazardous Waste Electronic Manifest Establishment Act, Public
Law 112-195, section 6939g.

D. Effective Date

    This final rule will be effective on June 30, 2018, the date on
which EPA plans to launch and begin the operation of the e-Manifest
system. This is the date when EPA will implement all e-Manifest Act
regulations, including the requirements of this final rule, and the
requirements of the One Year Rule that EPA issued on February 7, 2014.
This final rule is being published with an accelerated effective date
to coincide with the launch of the e-Manifest system on June 30, 2018.
On that date, EPA will begin collecting fees to recover the costs of
developing and operating the system.
    Under 40 CFR 3.2(a)(2), electronic reporting of documents required
under title 40 of the Code of Federal Regulations (CFR) may occur after
EPA has first published a document in the Federal Register announcing
that EPA is prepared to receive, in electronic form, documents required
or permitted by the identified part or subpart of title 40. By this
final rule action, EPA is announcing that it is prepared to receive
electronic hazardous waste manifests, as well as certain paper manifest
copies that continue in use after the e-Manifest system's
implementation date, through the national e-Manifest system. The
electronic manifests will be accepted by e-Manifest as the electronic
document substitutes for the paper manifest and continuation sheet
forms (EPA Forms 8700-22 and 8700-22A) that are described in 40 CFR
part 262, subpart B (hazardous waste generators), 40 CFR part 263,
subpart B (hazardous waste transporters), and subpart E of 40 CFR parts
264 and 265 (owners and operators of hazardous waste treatment,
storage, and disposal facilities). The implementation and compliance
date on which EPA plans to begin receiving these electronic manifest
and related paper manifest copies is June 30, 2018. This is the date
that EPA expects to begin e-Manifest system operations, and begin both
the collection of manifests and the collection of user fees for
manifest submissions required under this final rule. EPA is also
clarifying that the June 30, 2018, implementation date for e-Manifest
is limited to the collection of domestic hazardous waste manifests and
domestic shipments of state-only regulated waste subject under state
law to the RCRA manifest. EPA will not begin the collection of export
manifests described in subpart H of 40 CFR part 262 on the June 30,
2018, e-Manifest system implementation date. EPA will announce the
implementation and compliance date for the electronic submission of
export manifests in a separate notice to be issued in the future, when
EPA is ready to collect those documents electronically and assess the
appropriate fee for their processing. Until that occurs, export
manifests should continue to be completed as paper documents.

II. Background

    EPA published a detailed background discussion providing context
for the e-Manifest User Fee rulemaking in the proposed rulemaking
action. See 81 FR 49072 at 49074-76 (July 26, 2016). EPA incorporates
that detailed background discussion into this document for purposes of
this final rule, and refers readers to that proposed rulemaking rather
than reprinting all of it in this final rule document. For this action,
EPA will summarize key points from the earlier background discussion:
     In 2012, Congress enacted the Hazardous Waste Electronic
Manifest Establishment Act (e-Manifest Act). The e-Manifest Act
required EPA to establish a national electronic manifest system, the
development of which would be initially funded by annual
appropriations, and ultimately funded by user fees, which would both
offset the system's development costs, as well as the costs of
operating, maintaining, and upgrading the system.
     The e-Manifest Act further required EPA to develop
implementing regulations for electronic manifesting within one year of
enactment, and to establish a nine-member System Advisory Board to make
recommendations to EPA on the performance of the system.
     Section 2(c) of the e-Manifest Act conferred broad
discretion to EPA to impose on users of the system ``such reasonable
service fees as the Administrator determines to be necessary'' to pay
all system related costs, including the costs of processing data from
any paper manifests that continue to be used after the system
implementation date, as the e-Manifest Act allows users the option to
continue to use paper manifests. This is the principal source of
statutory authority for this action and its user fee methodology.
     Section 2(d) of the e-Manifest Act authorized the
establishment of a special System Fund in the U.S. Treasury for the
deposit of e-Manifest user fees. Funds deposited in the System Fund may
be spent by EPA for system related costs to the extent provided in
annual appropriations acts, but such funds can only be spent on e-
Manifest related costs.
     EPA issued its first implementing regulation on electronic
manifesting on February 7, 2014 (79 FR 7518-7563). This regulation,
referred to as the ``One Year Rule'' because of the e-Manifest Act's
mandate to publish the regulation within one year of enactment,
established the legal and policy framework for the use of electronic
manifests, and prescribed the conditions under which electronic
manifests are the full legal equivalent of paper manifest forms for all
RCRA purposes. The One Year Rule also codified key scope and
consistency provisions included in the e-Manifest Act. The One Year
Rule did not address e-Manifest user fees, instead deferring regulatory
action on user fees until this separate e-Manifest User Fee rulemaking.
     EPA relied extensively on two Federal guidance documents
on user fee design to develop its e-Manifest User Fee methodology: (1)
OMB Circular A-25, a memorandum to Executive Departments and agencies
addressing ``user charges,'' and (2) user fee design guidance found in
the United States Government Accountability Office

(GAO) Report No. GAO-08-386SP, Federal User Fees, A Design Guide, (May
2008).
     The OMB Circular A-25 guidance was relied upon
substantially for the following principles used in formulating the
final rule user fee methodology: (1) The imposition of user fees on
those recipients of the special benefits from federal activities, but
not recipients of incidental benefits; (2) the requirement that user
fees should accomplish full cost recovery; (3) the explanation of the
various types of direct and indirect costs that can be recovered by
user fees; (4) the general policy that user fees be instituted through
the promulgation of regulations; and (5) the policy that user fees be
reviewed biennially, to provide assurance that fees are adjusted to
reflect changes in program costs.
     The GAO Federal User Fees Design guide also was heavily
relied upon in developing the rationale for this final rule user fee
methodology, particularly with respect to: (1) Collecting fees so as to
strike an appropriate balance between ensuring compliance with fees and
minimizing administrative costs; (2) the manner of reviewing and
updating user fees so they remain aligned with actual program costs and
activities, and are adjusted for changes in program costs; and (3)
balancing several key outcomes involved in fee design, including: the
economic efficiency of the program's user fees; the equity of the fee
system in ensuring that beneficiaries pay their fair share while not
disregarding their ability to pay; the adequacy of resulting revenues
to pay all known program costs and to keep pace with inflation and
other changes to program cost; and the administrative burden of the
fees, including the balancing of the fee compliance costs with the
costs of their collection and enforcement.

III. Detailed Discussion of the Final Rule

A. Which users of manifests and manifest data will be charged user
fees?

1. Background
    In addressing this issue in the proposed rulemaking, EPA
acknowledged that there were two distinct classes of users who might
become involved with the e-Manifest system. First, there are the
regulated community members, e.g., the hazardous waste generators,
transporters, and receiving facilities (e.g., RCRA TSDFs) who are
required to use the manifest in connection with tracking a hazardous
waste shipment in which they are involved and are named as one of the
handlers on the manifest. Second, there are the data consumers, e.g.,
members of the public or state and local governments that might wish to
access e-Manifest in order to obtain information about wastes and
shipments of interest to them in their capacity as a data consumer, but
not as a member of the regulated community. Since the beginning of the
planning for e-Manifest, EPA has indicated that it considered public
access and transparency important functions of an e-Manifest system.
EPA has planned to develop a public facing module in e-Manifest to
provide such data access, with certain restrictions on that access.
However, the interest in public access to data is a secondary interest,
and it is clear that the regulatory community users are the primary
community of interest served by e-Manifest, and that they obtain the
primary services and benefits from the system.
    In the notice of proposed rulemaking, EPA proposed that the primary
beneficiaries of e-Manifest--the regulatory community users within the
definition of ``user'' in the e-Manifest Act--would at a threshold
level be the community of users potentially subject to user fee
obligations. Thus, for this initial level of fee eligibility, EPA
proposed to limit the imposition of user fees to the members of the
regulatory community that must use the RCRA manifest, as a matter of
regulatory compliance under federal or state law, for tracking the off-
site shipments of hazardous waste or state-only regulated waste between
generation sites and the facilities where such wastes are received for
management. EPA did not propose to impose fees on the community of data
consumers, i.e., members of the general public, accessing the system
only to obtain data about wastes and waste shipments of interest to
them. In the proposed rule, we explained that excluding the public from
user fee payments was consistent with OMB Circular A-25 policy to not
charge incidental beneficiaries of a service a user fee. We also
explained that this proposal was motivated by the desire to avoid the
large administrative burden of establishing payment accounts for all
those members of the public who might access the system, and of
processing payments for such a large and potentially diverse community.
EPA believes that the costs of providing data access to the public
would be fairly modest relative to the cost of servicing the regulatory
community. The funding result under the proposed rule would thus have
the costs of providing the public with access to data funded as an
incremental increase in the fees charged to the regulated users.
    As a second proposal on the scope of fee obligations, EPA proposed
to further restrict the payment of e-Manifest fees to the approximately
400 RCRA receiving facilities (TSDFs) that receive waste from off-site,
as well as the corresponding receiving facilities of state-only
regulated wastes tracked under RCRA manifests under state law. EPA
explained in the notice of proposed rulemaking (NPR), that it
considered the submission of the final, signed manifest to the e-
Manifest system by the receiving facility designated on the manifest to
be the primary ``billable event'' in the e-Manifest system that would
give rise to a user fee obligation. The effect of this second aspect of
the proposal would be to limit fee obligations and payments to the
receiving facilities on manifests, and to generally exclude the other
regulatory community ``users'' from fee payment obligations. This
aspect of the proposed rule was premised on the goal of simplifying the
fee system, and avoiding the potentially large administrative burden of
establishing payment accounts and collecting fee payments from 100,000
or more generators or other regulated users. It was assumed that the
receiving facilities assessed these fees could choose to pass these
fees through to the generator customers as a part of their service
agreement, thus balancing the equities and burdens of the fee system
without EPA's further intervention.
2. Comment Analysis
    On the issue of public access and its funding, we received numerous
comments from state agencies supporting the exclusion of states and the
general public from the requirement to pay fees, and supporting the
imposition of e-Manifest fees on the regulated users of the system.
However, there were several comments from hazardous waste TSDFs and
their trade organizations objecting to the proposed rule's approach to
funding public access through an incremental increase in these
facilities' fees. These TSDF commenters argued that the e-Manifest
Act's definition of ``user'' was intended to limit system access to the
regulated community and not afford access to the public. The TSDF
commenters suggested that EPA should be responsible for funding public
access through another means or another EPA appropriation, perhaps
treating public access requests through the Freedom of Information Act
or FOIA. As a final matter, several of these TSDF commenters also
questioned EPA's assumption that the cost of public access would be
modest.

    On the issue of the proposed ``billable event,'' all commenters
supported the proposal limiting fee obligations to the receiving
facilities designated on the manifest, and classifying the submission
of the final copy of the manifest signed by the receiving facility as
the primary billable event in the system. The states, generators, and
receiving facilities that commented on the proposed rule all supported
EPA's rationale that the balancing of administrative efficiency and
simplifying the fee payment system justified limiting the fee
obligations to the manifest's receiving facilities. To make their
support of this proposal clearer, several of these commenters suggested
that EPA remove from the existing part 262 (generator) and part 263
(transporter) regulations all vestiges of regulatory language from the
first e-Manifest rule suggesting EPA might impose user fees on
generators and transporters. Several commenters also suggested that EPA
should be consistent in drafting the final rule, and avoid using the
terms TSDF, receiving facility, and designated facility interchangeably
in the regulatory language, as these terms do not have the same scope
of coverage.
    Finally, in connection with the proposed rule's discussion of the
public access issue and the proposed rule's focus on receiving
facilities for the rule's fee obligations, EPA received several
additional comments raising significant issues for the Agency to
consider.
    A RCRA receiving facility and the Department of Defense submitted
comments raising the concern that unfettered public access to e-
Manifest might enable data mining from the system by those with
malevolent intent. These comments raised a concern that those
conducting data mining for illicit purposes could discern information
about particular wastes involving chemicals of concern, or about the
sites managing them, or patterns in the movement of wastes that could
be weaponized or otherwise vulnerable if diverted. One commenter
suggested there should be a homeland security basis for excluding
public access to such information, and identified the homeland security
list of chemicals of interest in 6 CFR part 27, appendix A, as a
resource that might be helpful in excluding hazardous waste and
manifest data potentially posing a Homeland Security risk. The
Department of Defense also raised a concern that generator site
information and the aggregate waste information gleaned from e-Manifest
could in some instances constitute classified information.
    In addition, EPA received several helpful comments that pointed out
some weaknesses or challenges that will arise from the proposed rule
approach and its focus on the final manifest submissions by receiving
facilities as the billable event that will trigger fee obligations. As
one example of such a challenge, several industry and state agency
commenters noted that there may be significant numbers of receiving
facilities, particularly those facilities receiving state-only
regulated wastes, which lack RCRA permits and lack EPA Identification
Numbers. Examples cited in the comments were facilities managing
industrial wastes, used oil, wastes regulated as special wastes by the
states, or conditionally exempt small quantity generator (CESQG) \1\
wastes regulated more stringently by states and subject to manifests
under state law. If EPA is intending to track the billable manifests
from receiving facilities by keying on the EPA Identification Number of
the receiving facility, EPA will need to issue unique identification
numbers to these facilities or otherwise address how these receiving
facilities and their manifests will be tracked uniquely and billed for
services in e-Manifest.
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    \1\ Conditionally exempt small quantity generators are now known
as Very Small Quantity Generators.
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    Other helpful comments received in response to the proposed
billable event were several industry and state agency comments noting
that there were two other types of waste shipment transactions with
manifests that did not lend themselves to the proposed approach of
billing the receiving facility for the manifest. The two transaction
types cited as posing particular challenges were: (1) Rejected wastes
returned under manifests to generators, as the ``receiving facility''
for such return shipments are generators and not the conventional
permitted facilities (e.g., RCRA TSDFs); and (2) hazardous wastes
exported from the U.S., as the manifests for exported hazardous wastes
are not received by a domestic receiving facility, but are instead
received by foreign consignees that are beyond the jurisdiction of the
U.S. to compel a final manifest submission and fee payment. These
commenters questioned how EPA would address these transactions in the
final rule.
3. Final Rule Decisions
a. How will public access to data be funded?
    In this final rule, EPA is sustaining the proposed rule's position
that public access is an incidental benefit of the system, and that the
regulatory community users obtain the primary and major benefits of e-
Manifest services. Since members of the public are at best incidental
beneficiaries, EPA has decided not to charge members of the public a
fee for access to manifest data from the public facing module of e-
Manifest. This decision is consistent with the policy announced in OMB
Circular A-25, which generally excludes incidental beneficiaries of
services from service charges, and instead requires the primary
beneficiaries to cover these costs. Therefore, as we proposed in the
July 2016 NPR, the regulatory community users--the primary
beneficiaries of e-Manifest--will fund the costs of public access
through an incremental increase in their user fees. EPA concludes that
this policy best effectuates the program's transparency goal with
respect to manifest data, and avoids discouraging the public's access
by the imposition of a fee on such access. EPA remains convinced that
the incremental increase in users' fees to fund public access will be
modest. This further focuses cost recovery and collections on the
several hundred receiving facilities, thereby avoiding the complexity
and administrative burden of attempting fee collections from members of
the public.
b. Which regulatory community users will pay fees?
    Second, for this final rule, EPA has decided to sustain the
proposed rule's approach of focusing the fee payment obligations of the
regulatory community users on only the receiving facilities named on
manifests. The final rule therefore refines the user fee obligation by
excluding generators, transporters, and entities other than receiving
facilities designated on manifests from the rule's user fee
requirements. The commenters on the proposed rule expressed unanimous
support for this proposal, and EPA concludes that it is much more
practical and efficient administratively to focus fee collections and
payments in the system on the several hundred hazardous waste and
state-only regulated waste receiving facilities, and to define the
``billable event'' giving rise to a fee obligation in the system as the
submission of the final manifest copy signed by these receiving
facilities.
    EPA is further clarifying that with respect to the continued use of
paper manifests, the preferred means of submission to the system by
receiving facilities is a data file (e.g., JAVA Script Object Notation
(JSON) file) presenting the data from these paper manifests. Such data
file submissions will eliminate much of the manual

processing of these manifests, including opening and sorting mail, and
the very labor intensive process of manually keying data from paper
manifests into the data system. Receiving facilities may submit their
data files from completed, ink signed paper manifests either
individually or as a batch submission. Whether submitted individually
or in a batch upload, the receiving facility must also submit an image
file of each manifest that is included in the data file upload. At the
time of submission of the individual or batch file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
and belief, the data and images submitted are accurate and complete,
and that the facility acknowledges that it is obligated to pay the
appropriate per manifest fee for all the manifests included in the
submission. These data file upload requirements are spelled out in
Sec. Sec.  264.1311(c) and 265.1311(c) in this final rule.
c. How will the rule address homeland security risks?
    The Agency acknowledges the several public comments raising the
concern that unfettered public access to manifest data might enable
those with malevolent intent to obtain data from e-Manifest that might
pose a homeland security risk. EPA believes that the homeland security
risk posed by public access to e-Manifest is minimal for the majority
of manifested hazardous waste shipments, because few hazardous wastes
are likely to be found in forms and circumstances that would make them
attractive to terrorists, and because public access to data through e-
Manifest will in all cases be delayed for a period of 90 days after
receipt of hazardous wastes at the receiving facility designated on the
manifest. However, commenters indicated that the 90-day delay in public
access might not mitigate all such security risks, since even with
delayed access to manifest data, a terrorist with system access could
perhaps discern shipment patterns for particular chemical wastes of
concern and the generators and facilities handling them. Thus,
commenters suggested that EPA take a more proactive position to guard
against homeland security risks posed by data disclosures from e-
Manifest. In particular, as a means to identify RCRA hazardous waste
shipments that might pose a security risk, the commenters suggested
that EPA utilize the Department of Homeland Security's (DHS's)
Chemicals of Interest, a screening tool for chemical security risks
that DHS has published in appendix A to its 6 CFR part 27 regulations
pertaining to the security of the nation's chemical facilities.
    EPA consulted with the DHS to determine if the information that
will be publicly accessible from e-Manifest poses a significant
chemical security risk, and if so, the action the Agency should take to
mitigate that risk. DHS concluded that there was a plausible chemical
security risk posed by unrestricted public access to data in e-
Manifest, and the agencies collaborated on a strategy to mitigate that
risk.
    EPA believes that the appendix A Chemicals of Interest list and
screening tool can be applied to the hazardous wastes and facilities
covered by DHS's chemical security regulations to aid EPA in
identifying a solution to the security concerns raised by commenters.
Rather than duplicating the efforts of DHS in this area, or perhaps
developing a conflicting approach, EPA is relying upon the expertise of
DHS, the DHS chemical security regulations, and the DHS Chemicals of
Interest (COI) appendix to flag those manifested waste shipments and
the data that should be withheld from public disclosure by e-Manifest
to avoid the release of information that could plausibly be used to
harm the homeland.
    First, it is significant that DHS has previously determined that
the security risks addressed in its 6 CFR part 27 regulations are only
potentially presented by a narrow subset of RCRA solid and hazardous
wastes. In promulgating the appendix A COI list in November 2007, DHS
determined that most RCRA solid and hazardous wastes would not be found
in forms or circumstances that would make them attractive to
terrorists, with the result that most RCRA wastes are excluded from the
COI screening process for chemical security risks. See 72 FR 65397 at
65398 (November 20, 2007). However, DHS concluded that a subset of RCRA
hazardous wastes--the so-called ``P-List'' and ``U-List'' wastes
consisting of the discarded commercial chemical products and related
wastes identified in 40 CFR 261.33--should be subject to screening as
COI for chemical security risks. DHS concluded that only these P-List
and U-List wastes are covered by the 6 CFR part 27 screening process
for COI, because the discarded commercial chemical products, off-
specification species, and other such wastes were likely to be just as
attractive to terrorists as the chemical products themselves. Id. Thus,
our consideration of homeland security risks potentially posed by
public access to manifest data should, in the first instance, be
limited to a consideration of those manifests for the P-List and U-List
wastes with chemical names that also appear on the list of COI in the
appendix A to the DHS's 6 CFR part 27 regulation.
    Under the DHS chemical security regulations, the COI appendix is
used as an initial screening tool for identifying high risk chemical
facilities. The COI appendix identifies for each listed chemical
substance a Screening Threshold Quantity (STQ) and minimum
concentration that apply to each of several modes of vulnerability
(release, theft, sabotage) and the related security issues (toxic,
flammable, or explosive releases; theft enabling use of chemical
weapons or weapons of mass effect; sabotage, etc.). The purpose of the
COI list and the STQs published for the relevant security issues is to
screen for those chemicals that if released, stolen, diverted, and/or
contaminated, have the potential to create significant human life and/
or health consequences.
    Moreover, the presence of a COI at a facility at quantities
exceeding the STQ is not itself a trigger for whether that facility is
a ``high risk'' or ``covered facility'' within the meaning of the part
27 DHS chemical security regulations. Rather, the presence of a COI
chemical at or above the STQ is the threshold for determining when a
facility must be evaluated further by DHS for the chemical security
risks at that facility. Exceeding an STQ triggers the requirement for
the facility to submit to DHS a Top-Screen document. Only after DHS has
gathered additional information through the Top Screen will DHS make a
determination whether the facility handling that COI chemical is a
``high risk'' facility and must comply with the substantive
requirements of the part 27 regulations. These requirements include the
preparation and submission to DHS of a Security Vulnerability
Assessment and a Site Security Plan.
    While EPA would ideally have the information available to withhold
from public disclosure the manifest associated only with ``high risk''
facilities, the Agency is not in a position to determine whether
particular facilities associated with P-List and U-List wastes that are
COI are high risk for chemical security issues. However, in order to be
protective respecting any plausible chemical security risk at
facilities with manifested hazardous wastes, the Agency will apply the
COI list screening tool broadly to prevent access to information on
chemical wastes by those who might have an intent to harm the homeland.
    Therefore, in this final rule, EPA is clarifying that the e-
Manifest system will withhold from public access

specific data from those manifests related to chemical facilities that
handle P-List and U-List wastes that are also included on the appendix
A COI list. For manifests that include such chemical wastes, the e-
Manifest system will withhold from disclosure to the public-facing
module of e-Manifest the following data items: The chemical waste name
and specific P- or U-List waste code, the quantity of such wastes
included in the shipment, and the date of the shipment. The shipping
description for these chemical wastes will instead bear the generic
information ``P-List or U-List waste'' in the public facing e-Manifest
system. After consultation with DHS, the two agencies have concluded
that these measures will be effective to prevent a terrorist from
obtaining information on which facilities might possess or manage
hazardous wastes that are COI at quantities of concern, as well as
prevent such a person from ascertaining information about shipment
dates and patterns of shipments involving these chemical wastes of
interest.
    While the withholding of this limited data from a limited subset of
manifests may appear at odds with the Agency's transparency goals for
e-Manifest, EPA believes that the mitigation strategy described here
represents a reasonable accommodation with homeland security interests,
and is a prudent response to the concerns raised by commenters and DHS
officials.
d. How will the rule address state regulated facilities lacking EPA
Identification Numbers?
    EPA acknowledges the comments identifying the problem posed by
tracking and collecting payments from state regulated receiving
facilities that currently lack EPA identification numbers. The e-
Manifest system will be programmed to track manifest activity and bill
facilities for their activities with reference to the identification
number of the receiving facility listed on each manifest. Therefore,
prior to or at the time of system implementation, EPA will need to
identify a means by which such facilities can obtain unique identifiers
that they can list on their manifests in the EPA identification number
field.
    As part of the e-Manifest system development, EPA is including a
so-called ``non-handler IDs'' initiative aimed at ensuring that each
site has its own unique ID to use with its electronic manifests.
Further, this initiative is aimed at ensuring that each receiving
facility entered in e-Manifest will have a unique identity for tracking
and billing purposes. Sites that are listed in Item 8 of manifests as
designated or receiving facilities must obtain a handler ID from their
state or EPA and be listed in the RCRAInfo data system. These efforts
will require considerable outreach and cooperation between EPA, the
states regulating these facilities, and the receiving facilities to
maximize the inclusion of these sites in the system and ensure the
proper billing of their shipments.
e. How will the rule address out-of-state shipments of non-RCRA wastes?
    The e-Manifest Act extends the scope of the e-Manifest program to
wastes subject to manifest tracking under federal RCRA or under state
law. Some state programs regulate more wastes than EPA regulates
federally under its Subtitle C regulations, and these additional non-
RCRA wastes are often referred to as state-only regulated wastes or as
``broader in scope'' wastes to indicate the more extensive coverage of
the state programs. These state-only regulated, non-RCRA wastes can
present manifest implementation and tracking challenges when shipments
involving these wastes cross state lines. While any non-RCRA waste
subject to a manifest under state law in the destination state should
be accompanied by a manifest in the destination state and thus would be
required by this final rule to be submitted by the receiving facility
to the e-Manifest system, the compliance situation is not as
straightforward for other out-of-state shipment scenarios. In
particular, the manifest requirements may be less clear for waste
shipments that originate in a state with more extensive or ``broader in
scope'' coverage and that are then shipped out-of-state to a
destination facility in a state where the waste is not regulated as
hazardous and does not require a manifest under the law of the
destination state. Prior to e-Manifest, EPA was not significantly
involved in the collection of manifests, and the question of supplying
manifest copies to states was governed exclusively by state law. EPA is
aware from discussions with state regulators that it was at times
problematic for the origination states to collect manifest copies from
out-of-state receiving facilities, and that it was often difficult to
ensure compliance with copy return requirements from facilities beyond
the territorial jurisdiction of the origination state.
    Under the e-Manifest Act, however, any such jurisdictional barrier
has been eliminated by the Congress. In section 2(h) of the Act,
Congress prescribed a self-implementing provision that speaks directly
to the obligation of receiving facilities to close out and return
manifests to the e-Manifest system, if the waste being shipped for
management is subject to a manifest in either the origination state or
the destination state. This provision of the Act provides that if
either state's law requires that the waste is tracked through a
hazardous waste manifest, then the designated facility, regardless of
location, shall complete the facility portion of the manifest, sign and
date (i.e. complete the facility certification), and submit the
manifest to the system.
    Thus, under the Act, for shipments that cross state lines, a
designated or receiving facility that receives waste shipments
accompanied by a manifest, and that manifest is required for the
tracking the waste shipment by either the law of the origination or
destination state, then the receiving facility must attend to that
manifest, must close it out by completing the facility portion and
signing and dating the facility certification on the manifest, and must
submit the signed, final copy of that manifest to the e-Manifest system
for processing. These requirements apply to receiving facilities under
federal law even if the law of the destination state would not require
a manifest for the wastes involved, and would not require the facility
to take any action with respect to the manifest required by the
origination state. States that desire the return copies of these
manifests can therefore rely upon this federal provision that ensures
consistency in the tracking of these shipments to their completion, and
they will not be as dependent on attempts to extend their state laws in
an extraterritorial fashion to out-of-state entities. Receiving
facilities can know that their supplying one final copy to the e-
Manifest system will satisfy any and all requirements for return copies
to tracking states, wherever they may be situated.
    While the provisions of section 2(h) of the e-Manifest Act are
self-implementing, EPA is including an explanation of this statutory
provision in this final rule so that regulated entities will receive
ample notice of its requirements. EPA is including this summary of
section 2(h) under this preamble topic, because the effect of this
statutory provision is to classify the out-of-state waste shipments
subject to manifest tracking in either the origination state or
destination state as a mandatory type of manifest submission to e-
Manifest, and thus another type of ``billable event'' within the
meaning of this final rule. In other words, receiving facilities
subject to this statutory provision affecting interstate waste
shipments must submit the final manifest copies to e-Manifest, and pay

the fee required by this final rule, based upon the type of submission.
    The Agency is codifying the exact terms of section 2(h) of the Act
at 40 CFR 260.4. EPA has chosen to codify the statutory provision in
the general applicability subpart of part 260, because we expect that
many of the state-regulated facilities that will be affected by the
copy submission requirement of section 2(h) are not RCRA-permitted
TSDFs, and thus it would not be appropriate to include the codified
text of section 2(h) of the Act in the part 264 or part 265 regulations
that prescribe the unit location and management standards for RCRA
TSDFs. Part 260 is reserved for regulatory provisions of general
applicability, so EPA has chosen to codify the manifest copy return
requirement affecting interstate waste shipments at new Sec.  260.4.
f. How will the rule address hazardous waste exports and return
shipments of rejected hazardous wastes?
    The commenters who identified these two atypical shipment types
raised valid points that the proposed rule approach of billing the
receiving facilities upon submission of the final signed manifest did
not lend itself well to the processing of hazardous waste export
manifests and manifests for rejected hazardous wastes that are being
shipped as returns to the generators of those wastes.
    With respect to hazardous waste export shipments, EPA is not
including the tracking of export manifests described in subpart H of 40
CFR part 262 in the initial phase of e-Manifest system implementation.
As EPA is not accepting the submission of export manifests to the
system at this time, the Agency also is not requiring the payment of a
fee in connection with export manifests. EPA's system planning and
development efforts to date have been focused on the domestic manifest,
as the domestic shipments are the dominant use case for the hazardous
waste manifest.\2\ Moreover, EPA has not yet determined who in the
export shipment chain of custody (i.e., primary exporter vs.
transporter moving waste from U.S. or other entity) is best suited for
making the submission of the export manifest to the system and paying
the requisite processing fee; nor have we provided notice-and-comment
opportunities for the exporters or other handlers involved with these
shipments. Therefore, these determinations on export manifest
submissions and the payment of e-Manifest fees for export manifests
must await a future rulemaking connected with the planning for the next
phase of e-Manifest implementation. EPA plans to consult the Advisory
Board on future e-Manifest system enhancements and expansions, and the
future inclusion of export manifests is a topic that the Advisory Board
can help us address in our regular meetings with the Board. Until then,
current arrangements for handling export manifests and tracking
information on exports in other Agency tracking systems will continue.
---------------------------------------------------------------------------

    \2\ EPA estimates that there are 3 to 5 million domestic
manifests produced each year for tracking waste shipments within the
U.S., whereas the export trade produces only about 23,000 manifests
annually.
---------------------------------------------------------------------------

    With respect to rejected hazardous waste shipments, EPA has
addressed commenters' concerns in this final rule. With rejections,
there are generally two possible outcomes: (1) The rejected wastes are
re-shipped under a manifest that forwards the rejected wastes from the
rejecting facility to an alternate receiving facility (typically,
another RCRA TSDF) for management, or (2) the rejected wastes are re-
shipped under a manifest from the rejecting facility as a return
shipment back to the original generator of the waste.
    The first outcome discussed previously--the forwarding of rejected
wastes to an alternate facility--is not unlike the conventional
manifested shipment of a waste to a permitted facility for management.
The key difference is that the rejected waste shipment originates with
the rejecting facility rather than the generator. Otherwise, forwarded
rejections are tracked through off-site transportation to another
receiving facility (typically another permitted TSDF), which completes
the tracking of the shipment by signing the manifest to certify to the
receipt of the wastes at the designated facility. Since forwarding
rejected wastes to an alternate facility is tracked on the manifest
like conventional waste shipments to a receiving facility, EPA can
treat them like conventional shipments insofar as the submission of the
final copy to the system and the payment of the fee. Therefore, for
rejected wastes that are forwarded to an alternate facility for
management, the alternate facility that signs the manifest to certify
the receipt of wastes must submit that final, signed copy to the system
and pay the applicable per manifest fee for that submission.
    The unique circumstances surrounding the tracking of return
shipments requires a different treatment in this final rule. For return
shipments to generators, the rejecting facility is typically listed as
the generator on the return manifest, while the original generator of
the waste receiving its waste as a return is shown as the designated or
receiving facility. EPA's billable event approach of charging the
receiving facility of conventional shipments is premised on efficiency
and avoiding the inclusion of hazardous waste generators in the e-
Manifest payments system. It would conflict with this policy objective
if the return shipments were then to implicate generators in the fee
payment system, because they appear to be the receivers of return
shipments. Therefore, in the final rule, EPA is announcing a different
outcome applicable only to the return shipment scenario. For return
shipments to generators, the rejecting facility is responsible for the
payment of the fee for the return manifest, and the billable event for
this fee obligation is the rejecting facility's submission of the
original manifest signed by the facility to indicate the rejection and
the submission of a copy of the return shipment manifest that will
accompany the return shipment to the generator. Each rejection
resulting in a return shipment must therefore include the submission by
the rejecting facility of the original manifest signed by the rejecting
facility and a copy of the return shipment manifest. Thus, the
rejecting facility is paying the fee for the processing of the return
manifest when it submits the return manifest, as the return manifest
and its processing fee will not be collected by the system from the
generator.\3\ By handling return shipments in this manner, the fee
payments required in the system can be confined to the intended class
of conventional, permitted receiving facilities. While it may seem
irregular to charge the rejecting facility the e-Manifest fee for
return shipments of rejected wastes, a chargeback by the facility to
its generator customer is an option to balance the equities of the
resulting fees. EPA concludes that this decision allocates the fees for
rejected wastes most fairly, as the rejecting facility is charged the
fee only in the exceptional circumstances of return shipments to a
generator, while the alternate receiving facility will pay the fees for
the more conventional scenario of wastes being re-shipped and forwarded
to another receiving facility for management. Therefore, Sec. Sec.
264.1311(a)(3) and 265.1311(a)(3) of the final rule will include among
the manifest transactions that are subject to

fees the submission by receiving facilities of manifests indicating a
rejected waste and a return shipment to the generator of that waste.
---------------------------------------------------------------------------

    \3\ EPA notes that in those cases of a facility partially
rejecting wastes on the original manifest, with a return of rejected
wastes to a generator, the rejecting facility will be charged both
the processing fee for the original manifests for processing data on
the wastes received, as well as the fee for the return manifest to
the generator.
---------------------------------------------------------------------------

g. What other changes are being made in response to comments?
    EPA accepts the comments asking for the removal of all vestiges in
the existing regulations that suggest EPA could impose e-Manifest fees
on generators under part 262 regulations or on transporters under part
263 regulations. These provisions were added during the promulgation of
the One Year Rule, which codified quite generally the authority
conferred under the e-Manifest Act to impose reasonable fees on all
classes of manifest ``users,'' a term which included hazardous waste
generators, transporters, and owners or operators of facilities
receiving wastes under manifests for management. Thus, EPA included in
the One Year Rule provisions in parts 260, 262, 263, 264/265, and 271
so that the codified authority to impose user fees could reach all the
possible users of the manifest. In the proposed User Fee Rule, 81 FR
49071, July 26, 2016, EPA stated that if the proposed rule's approach
to charging only receiving facilities user fees were to be adopted in
the final rule, EPA intended to eliminate from parts 262 and 263 those
provisions that would appear to extend user fee authority to generators
and transporters. (81 FR 49072 at 49078). Based on the supportive
comments in the docket, and the Agency's continued belief that
restricting fee collections to receiving facilities is sound policy,
EPA is finalizing this policy and thus removing all references in parts
262 and 263 to user fee obligations for generators and transporters of
hazardous waste. The result is the removal from the regulations of
existing Sec. Sec.  262.24(g) and 263.20(a)(8) addressing the
imposition of user fees on generators and transporters, respectively.
    EPA also is accepting the comment noting that EPA had used the
terms TSDF, designated facility, and receiving facility interchangeably
in the proposed rulemaking, even though those terms do not have the
same scope of coverage. The term TSDF connotes a facility having a RCRA
treatment, storage, or disposal permit (or interim status), a class of
facilities that is narrower than the scope intended by the e-Manifest
Act. The commenter is correct in pointing out that the e-Manifest Act
intends broader coverage than RCRA TSDFs, since it is clear that many
receiving facilities of state-only regulated wastes lack RCRA permits,
and yet are facilities that could receive manifested wastes under state
law and thus be included in the coverage of the e-Manifest Act and the
e-Manifest system. The commenter also is correct that EPA should rely
on a term that expresses the intended scope of the e-Manifest Act, and
use that term consistently in the final rule. In response, EPA is
clarifying in this final rule that ``receiving facility'' is the term
with the proper breadth that will capture all facilities regulated by
the final User Fee Rule. The final rule will therefore focus on
receiving facilities, and not TSDF or designated facility, as both of
the latter terms are defined by current federal regulations more
narrowly to include only the RCRA permitted facilities. The term
receiving facility is sufficiently broad to include every type of
federally regulated or state regulated facility that could receive a
hazardous or state-only regulated waste covered by the e-Manifest Act.
    Consistent with the broad scope of coverage intended by the e-
Manifest Act, the Agency is adding new authority in 40 CFR 260.5 to
cover the receiving facilities of state-only regulated wastes that are
not RCRA TSDFs. Under the final rule's Sec.  260.5, facilities
receiving state-only regulated wastes must comply with the requirements
of Sec.  264.71 on use of the manifest, the requirements of Sec.
264.72 on manifest discrepancies, and the requirements of subpart FF of
part 264 addressing the fee determination methodology, fee payment
methods, fee dispute procedures, and other fee requirements. EPA is
subjecting the state-only regulated waste receiving facilities to these
requirements under Sec.  260.5 so as to clarify the applicability of e-
Manifest Act requirements to these state regulated facilities that are
not RCRA TSDFs subject to part 264 or part 265.
    EPA is also revising the manifest printing specification by adding
a Sec.  262.21(f)(8) that will require all printed manifests and
continuation sheets to bear a prominent notice to these facilities in
the bottom margin of the designated facility copy. This notice will
refer the facilities to the manifest instructions that explain their
requirements to complete and sign all manifests so received, to submit
these manifests to the e-Manifest system, and to pay to EPA the
appropriate fee for the processing of these manifests.

B. What other transactions will be subject to user fees?

1. Background
    In the discussion earlier on the billable event in e-Manifest, EPA
clarified that the primary transaction in e-Manifest that will give
rise to a user fee obligation is the submission by the receiving
facility of the final copy of the manifest signed by the receiving
facility to certify to the receipt of the wastes or to any
discrepancies related to the shipment.\4\ However, in the proposed
rule, EPA proposed several additional types of manifest-related
transactions that might warrant a fee, and solicited comment on others
that might warrant a fee because of the complexity of some transactions
(e.g., rejections, split loads, consolidations), or to deter activities
that might incur large labor costs, such as a paper manifest premium or
a charge for help desk encounters. EPA explained in the proposed rule
that the several complex transactions did not warrant any premium fees,
because these transactions--rejected waste shipments, consolidated
shipments, or split shipments--tend to require additional manifests to
be completed and submitted, so the fees related to the additional
manifests would be collected as a matter of course without any premium
fees. For help desk encounters, EPA concluded that a per encounter fee
would discourage users from seeking assistance, and that it was more
appropriate to aggregate help desk costs and recover these as
operations and maintenance costs of the system to be shared by all
manifests.
---------------------------------------------------------------------------

    \4\ As noted in section III.A.3.e in this preamble, another
billable transaction for receiving facilities is the submission of a
manifest showing in Item 18a a return shipment to a generator, where
a fee is charged for the return manifest.
---------------------------------------------------------------------------

    In footnote 16 at 81 FR 49088 July 26, 2016, proposed rulemaking,
EPA stated that it intended to impose a per page transactional fee for
manifest continuation sheets. EPA believed the per page continuation
sheet fee was justified, as these continuation sheets were separate
forms styled similarly to manifest forms, and with many of the same
data elements. Particularly when submitted as paper forms for
processing, these continuation sheets could require the same sorts of
manual processing steps and quality assurance/quality control measures
as paper forms. Therefore, EPA stated in the proposed rule footnote
that each page of a continuation sheet would generate the same fee as
an individual manifest form.
    Also, in the preamble section of the proposed rule addressing
possible fee premiums, EPA proposed a distinct transactional fee for
sorting and returning certain types of extraneous documents that
handlers might submit to the paper processing center with their
manifests, and for correction submissions sent to the system by
receiving facilities to enter corrections

in the data-base of existing manifest records. See 81 FR 49072 at
49088, July 26, 2016. EPA proposed the extraneous document fee, because
EPA had learned from several state agency partners that such extraneous
documents were frequently encountered by states with tracking programs,
and their sorting and return, if required, would incur considerable
manual processing steps and resulting labor costs. It was believed that
a premium fee charged for extraneous documents might deter these
submissions and recover their related costs to the system.
    EPA proposed the corrections submission fee, because the proposed
corrections process included in the proposed rulemaking action would
require a certified submission by TSDFs to effectuate a change to
previously entered manifest records. The proposed rule included a
fairly structured submission requirement that would have required the
receiving facility submitter to identify the data elements being
corrected, to list both the data item as previously entered and as
corrected, and then to certify that the data as corrected are complete
and accurate. Such submissions would result in system-related costs
being incurred, and it was believed that a corrections fee might induce
facilities to improve the data quality of their initial submissions so
as to avoid the costs of later correction submissions.
2. Comment Analysis
    EPA received many comments in response to the proposal regarding
which transactions might warrant additional fees. Numerous industry and
state commenters agreed that continuation sheets should not be charged
a separate or per page fee. These commenters contend that most
continuation sheets simply add additional waste streams or an
additional transporter to the original manifest. Since continuation
sheets carry the same tracking number as the original manifest to which
they are appended, the commenters believed that only one fee should be
charged for the original manifest and any continuation sheets attached
to it.
    EPA received many comments from industry and state commenters
contesting the proposed fee for sorting and returning stray or
extraneous documents. Nearly all of these comments suggested that EPA
should not be spending time and resources sorting extraneous documents
and attempting to return them to senders, but should simply discard
them. Commenters suggested that discarding the stray documents with no
additional effort expended on them would not necessitate a separate
fee. Several such commenters did question what the term ``extraneous''
meant in connection with non-manifest documents submitted to the
system. For example, commenters asked if polychlorinated biphenyl (PCB)
continuation sheets and land disposal restriction (LDR) certifications
would be treated as extraneous, even though other EPA regulations may
require them to be attached to manifest forms.
    Commenters generally agreed with EPA's assessment that help desk
encounters should not be charged separate per encounter fees. These
commenters agreed with EPA's statement in the proposed rulemaking that
the help desk costs should be aggregated and shared by all manifests as
operations and maintenance costs. Similarly, commenters agreed with
EPA's assessment that a premium fee for paper manifest use was not
warranted at this time, as the differential fee approach in the
proposed rule would already assess higher fees for paper manifest
submissions, because of their higher processing and labor costs.
Commenters said that the differential fee proposal already created the
appropriate incentives against the continued use of paper manifests
without an additional premium fee.
    Many industry commenters and several state agency commenters
submitted comments objecting to the proposed data correction fee,
although a few commenters stated they would support a corrections fee
focused on paper manifest submissions only. The commenters objecting to
the proposed corrections fee, particularly RCRA TSDFs and their trade
associations, argued that a separate fee levied on correction
submissions would deter corrections being made, and would result in
disincentives for data quality in the system. These commenters
suggested that the system should encourage, not discourage, data
corrections from the user community.
3. Final Rule Decisions
    EPA accepts the numerous comments objecting to a separate
transactional fee for manifest continuation sheets. EPA is persuaded
that most continuation sheets add minimal additional data to a
manifest, typically several additional waste streams or an additional
transporter, and that processing these additional data items will not
incur significant costs to the system. Also, as these continuation
sheets will be tracked by the same manifest tracking number displayed
on the original manifest, it will not be practical to track and invoice
users separately for continuation sheets. Any marginal costs that
result in the aggregate from the processing of continuation sheets will
be added to the system's operating and maintenance costs. Thus, the
policy of charging a per sheet fee for continuation sheets, as
suggested in the proposed rulemaking, 81 FR 49072 at 49088, footnote
16, July 26, 2016, will not be adopted in the final rule.
    EPA also accepts the numerous comments criticizing the proposal to
charge a separate transactional fee for sorting and returning
extraneous documents submitted to the system's processing center with
paper forms. Commenters all expressed alarm that EPA would spend time
and resources sorting and returning extraneous documents, and EPA
accepts the commenters' reasoning that the proper outcome should be to
simply discard, and not return, any such stray or extraneous items that
are not in fact manifest related. Thus, under the final rule, there
will be no fee assessed for processing extraneous documents, and any
nominal costs from sorting and discarding these documents will be added
to the system's operating and maintenance costs. Thus, in this final
rule, EPA is not finalizing proposed Sec.  264.1311(b)(1) or Sec.
265.1311(b)(1), which would have assessed fees for the processing of
extraneous documents submitted with paper manifests to EPA's paper
processing center.
    In relation to this issue, EPA will treat all documents that are
not manifest related, i.e., a hazardous waste manifest form or a
manifest continuation sheet, as extraneous and discard them under this
rule's policy. PCB continuation sheets will be considered manifest
related, as they are required to be attached to PCB manifests under
federal law and contain specific details related to tracking specific
PCB waste items that are being shipped off-site. However, EPA is not
planning to process LDR certifications at the e-Manifest processing
center, and any plans to process LDR-related documents in e-Manifest
will await a later phase of system implementation. Such LDR
certifications are currently intended to be delivered to the RCRA
receiving facility the first time LDR-restricted wastes are shipped to
a particular facility for management. Therefore, these LDR
certifications should remain at these facilities and be kept among
these facilities' records, and not submitted with manifests to the e-
Manifest system. Until such time as EPA decides to process LDR-related
documents in e-Manifest, EPA will discard any LDR certifications that
are received by the system under this rule's

policy of discarding extraneous documents.
    EPA also is accepting the comments objecting to the proposed rule's
fee for data correction submissions. EPA is persuaded that a fee for
such corrections might have the unintended effect of discouraging
corrections and data quality. Moreover, as the great majority of
correction submissions will be made electronically, their processing
should entail nominal system costs, which EPA can include among the
system's operation and maintenance costs to be shared by all manifests.
Therefore, the final rule action does not finalize proposed Sec. Sec.
264.1311(b)(2) and 265.1311(b)(2), which would have assessed fees for
manifest data correction submissions by facilities. Other changes to
the proposed data corrections process are discussed in section III.F of
this preamble.
    Finally, the Agency acknowledges the general support in the
comments for EPA's proposed rule rationale for not charging any
additional transaction based fee for help desk encounters nor charging
an additional premium fee for the use of paper manifests. EPA concluded
in the proposed rule that the cost of help desk support should be
aggregated and funded as an operating and maintenance costs shared by
all manifests. EPA further explained that the proposed differential fee
approach (see section III.C of this preamble) already included
appropriate fee disincentives to discourage paper manifest use, without
a premium fee being necessary or appropriate at this time. As
commenters agreed with both of these proposals, and EPA believes both
are backed by sound policy, EPA is affirming in this final rule that no
transactional fee will be charged for help desk encounters. In
addition, no premium fee (beyond the higher differential fee under the
rule's fee formula) will be charged for the continued use of paper
manifests.

C. What formula and methodology will be used to determine user fees?

1. Background
    In the July 26, 2016, notice of proposed rulemaking, EPA proposed
what it described as a ``differential fee formula.'' The proposed
formula differentiated among the several types of electronic and paper-
based manifests that would be submitted to the system for processing.
The most significant feature distinguishing the processing of these
different manifest types under the proposed fee formula was the
marginal labor cost of processing the data from these manifests into
the system. EPA developed an economic model to project the marginal
labor costs for processing the several manifest types allowed to be
submitted to the system. Paper manifests mailed to the system for
sorting and manual data key entry would entail the greatest marginal
labor costs to process. Paper manifests submitted as image files (e.g.,
Adobe Portable Document (PDF) files) would have marginally lower costs
than mailed forms, but would still require manual data key entry steps.
Paper manifests submitted as data files (e.g., JSON file with an image
file attachment) would require even less manual effort to process. The
lowest cost manifests to process would be the fully electronic
manifests that originate in the system and are transmitted
electronically with no manual intervention at all. The result of the
proposed differential fee formula is thus a continuum of manifest fees,
with fully electronic manifests involving the lowest costs and fees,
with somewhat higher fees for paper manifests submitted as JSON or data
files, with moderately higher costs for the paper manifests submitted
as image files, and with the highest fees imposed on paper manifests
mailed to the system.
    The key purpose of the fee formula is to determine the per-manifest
fee to be charged manifest users. In simplest terms, the formula
allocates all the system-related costs over all the manifests in use to
arrive at a per manifest fee. In the July 26, 2016, proposal, EPA
explained the nature of the several system-related cost categories that
would be included in fee determinations with the proposed formula. See
81 FR 49072 at 49079. The major cost categories identified in the
proposal were System Setup Costs, Operations and Maintenance Costs, and
Indirect costs.
    The proposed rulemaking discussion of the differential fee formula
broke down the system-related costs into two key sub-categories, System
Procurement Costs and EPA Program Costs. These sub-categories are
helpful to distinguish the information technology (IT) system
acquisition and contracting costs from the other EPA Program Costs that
the Agency would incur in planning, developing, operating, and managing
the e-Manifest program, including the program's IT system and
regulatory components. The EPA Program costs extend as well to the
costs of conducting outreach, as well as establishing and operating the
e-Manifest Advisory Board.
    In the fee formula methodology proposed by the Agency, the System
Setup Costs are simply the System Procurement Costs and EPA Program
Costs incurred by EPA before the e-Manifest system's operational date,
whereas the Operations and Maintenance Costs consist of the System
Procurement Costs and EPA Program Costs incurred after the operational
date of the system. Because the e-Manifest Act requires that EPA reduce
the user fees upon the recovery of all the system development costs,
the proposed rule methodology would accomplish this by simply dropping
the System Development Costs from the formula after five years, as EPA
proposed an amortization period of five years for the recovery of the
system development costs. 81 FR 49079, July 6, 2016. However, it is
possible that the cost recovery period could extend beyond the five
years, should, for example EPA find that actual O&M costs exceed
estimates. EPA will closely track the actual progress in the recovery
of system start-up costs, and will notify users accordingly when the
reduced fees will take effect.
    In developing the proposed rulemaking, EPA considered three
distinct fee models or options, which were discussed in detail in the
proposed rule preamble. See 81 FR 49081-49083, July 26, 2016. All three
options focused on the marginal labor cost of processing each manifest
as the primary cost item contributing to the calculated fee, and to
this marginal cost was added the result of dividing the System Setup
and Operations and Maintenance by the numbers of manifests, with
allowance also for amortizing the System Setup Costs over five years.
The three fee models or options varied by how extensively the models
tracked costs and manifest numbers by manifest type, and by how
rigorously the models attempted to allocate the substantial paper
manifest processing costs to only the paper manifests, rather than
sharing these costs equally with the electronic manifests. Thus, the
Agency considered a very simple ``Average Cost Fee Option'' that shared
all costs equally among all manifests, paper or electronic, to arrive
at an average marginal labor cost and the same average fee for all
manifest types. A second or intermediate option was discussed as the
Marginal Cost Differentiated Fee Option, which focused on the marginal
labor cost of processing each manifest type (fully electronic, paper by
mail, paper by image file, or paper by JSON file) as the key
contributing cost item, but which allocated all other system setup and
non-labor operating costs equally across all manifests. The third and
most detailed option was the Highly

Differentiated Fee Option, which also focused on the marginal labor
cost of processing each manifest by type, but was more particular in
tracking operation and maintenance costs and manifest numbers by their
type, and in allocating the non-labor costs of operating the paper
manifest processing center to only the paper manifests rather than
having all manifest types share in these costs.
    In the July 26, 2016, proposed rulemaking, EPA proposed a
combination of the second, Marginal Cost Differentiated Fee option and
the third option, the Highly Differentiated Fee option. See 81 FR at
49083. Under the proposed fee model, EPA would initially implement the
second, Marginal Cost Differentiated Fee Option, but would shift to the
third or Highly Differentiated Fee Option if the Agency were to find
that electronic manifest usage had not reached the programmatic goal of
75% after four years. EPA rationalized the proposal on the basis that
it represented a useful compromise between promoting electronic
manifest use, while also recognizing that there likely would be a
transition from paper manifest use, to JSON data uploads from
facility's paper manifests, and finally to fully electronic manifests
and submissions. The intermediate step in the transition--receiving
facility uploads of JSON data files generated from their paper
manifests--would produce benefits and cost savings for industry and the
Agency's national data system. Thus, EPA believed that the combination
of the two fee models, with the pivot to the more aggressive fee model
if necessary after a four-year period, would facilitate this transition
and not have the potentially undesirable effect of penalizing paper
manifest usage initially. EPA had previously espoused the 75% usage
rate goal in our economic analyses for e-Manifest to project program
savings and benefits, and we believe that the 75% adoption rate within
four years for electronic manifests is a useful benchmark for measuring
the success of the program and for incentivizing the transition to
electronic manifests through this User Fee rule.
2. Comment Analysis
    There was general agreement among both industry and state
commenters in support of the proposed rule's differential fee formula
and its approach keyed to the marginal labor cost of processing the
various manifest types into the national data system. The majority of
these commenters indicated that the proposed formula was well
explained, and that it provided a generally sound justification for the
variability of fees among the different manifest types, that is, fully
electronic manifests, and paper manifest submissions delivered by mail,
by image file upload, and by JSON data file upload. These commenters
also were satisfied that the proposed formula and the explanation in
the proposal of the formula's cost categories and their sources were
adequate to explain how the fees would be determined. Only one industry
commenter expressed a dissenting view, and suggested that EPA had not
substantiated the cost factors and resulting fees. This commenter
expressed alarm at the level of fees published in the preamble's table
showing the illustrative fees under the proposed formula, while another
commenter criticized the table of illustrative fees for the range of
possible fees it presented, and suggested that EPA should have been
able to pin down the costs and resulting fees more closely by now.
    In addition, there was general support in the industry and state
comments for the proposed rule including the fee pivot feature, so that
fees for paper manifests would become more aggressive if electronic
manifest usage goals were not met. However, commenters representing
several large RCRA TSDFs, and their trade association, objected to the
final rule codifying the 75% electronic usage goal in four years as the
trigger for the pivot to the more aggressive fee formula. In the view
of these commenters, the 75% in four years electronic usage goal was
arbitrary and should not be locked into a regulation. Rather, these
commenters would prefer that EPA refer the matter of when and under
what conditions to raise fees to the e-Manifest Advisory Board for its
recommendation.
    Few comments were received on the proposed five-year amortization
period for the recovery of system development costs and their payback
to the Treasury. One state agency commenter expressed support for the
five-year amortization period as reasonable, but emphasized that
amortized costs that accumulate in the System Fund must not be treated
as a surplus, as the e-Manifest Act places limits on surplus
accumulations in the System Fund. Another state commenter suggested the
amortization period should be set at six years, for consistency with
the Fee Rule's general reliance on a two-year cycle for publishing and
revising fees.
3. Final Rule Decisions
    For this final rule, EPA is sustaining its proposed approach to the
differential fee formula. The final rule provides that EPA will
initially implement the Marginal Cost Differentiated Fee model, and
then shift to the Highly Differentiated Fee model, if electronic
manifest usage has not reached a 75% adoption rate after four years of
system implementation. However, EPA will evaluate the circumstances of
the electronic manifest adoption rate as we reach the four-year
anniversary date for the e-Manifest system. At that time, EPA will
publish a document indicating whether the 75% adoption rate has been
realized and any facts or circumstances that might explain why the goal
was met or not met. At the time EPA publishes this action, the Agency
will either state that the fee pivot will go into effect on a date
determined by EPA under the conditions of the final rule's fee pivot
provisions, or, EPA will determine then to refer the matter of the
adoption rate and fee impacts to the Advisory Board and seek the
Board's recommendations on the issue. In this manner, EPA can still
implement the more aggressive fee formula pivot under the terms of this
final rule, rather than having to wait on the Advisory Board's advice
and possibly another rulemaking. EPA believes that the more aggressive
or Highly Differentiated Fee formula is an appropriate means of
ensuring that paper manifests ultimately bear their full costs, and
this is an important principle of user fee design. EPA only proposed
the intermediate fee model to facilitate a transition to electronic
manifests, and the Agency concludes that four years is a reasonable
period of time to promote such a transition. Rather than an arbitrary
pivot condition, the inclusion of the 75% adoption rate condition with
the four-year transition period actually moderates the transition
period condition. EPA could have required the pivot to the more
aggressive formula with certainty after four years, without regard to
the electronic usage rate. As moderated by the usage rate condition, if
the 75% adoption rate is realized, the transition to the more
aggressive fees after four years is in effect canceled and the
intermediate model's fees would remain in effect. In addition, EPA
notes that the fee increases resulting under the more aggressive fee
formula are not prohibitive, e.g., about $2 more for a mailed paper
submission and only a few cents difference per manifest for a JSON data
upload from a paper form. EPA is not persuaded by comments suggesting
that the proposed rule's fee pivot is unreasonable or arbitrary under
the proposed conditions. Indeed, were the conditions not codified in
the final rule, the decision to increase the paper

manifest fees even moderately would involve the substantial delay of
referring the issue to the Advisory Board, waiting on their report, and
then having to initiate new notice and comment rulemaking to implement
the change. The decision to raise fees under particular conditions is a
decision that only the Agency, not an Advisory Board, can make.
Therefore, EPA is issuing the final rule to include a transition to the
Highly Differentiated Fee model after four years, if electronic
manifest usage has not reached 75% by that time. However, we will
decide at that time through a separate action whether the fee model
pivot will go into effect by the terms of the final rule, or if we find
there are extenuating circumstances such that it would be helpful first
to seek the advice of the Board. In either case, EPA will announce its
decision to either allow the fee pivot to go into effect, or to consult
on the matter with the Advisory Board.
    EPA also is finalizing the rule with the proposed five-year
amortization period for the recovery of system development costs. EPA
received one comment supporting the proposed period as reasonable, and
only one other comment suggesting the amortization period be extended
to six years to align better with the proposal's two-year fee revision
cycles. For the final rule, EPA is retaining the proposed five-year
amortization period, and concludes that five years reasonably balances
the Government's desire to promptly recover the system's development
monies, while moderating the effect of the development costs insofar as
keeping the resulting user fees at reasonable levels. By concluding the
amortization period after the fifth year, the fee revision schedule
that EPA publishes for the two-year cycle covering the fifth and sixth
years will more palpably show the users the effect of the recovery of
start-up costs in reducing the scheduled fees for the sixth year
relative to the fifth year.

D. What indirect costs are considered by EPA in user fee
determinations?

    In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
explained that the e-Manifest system related costs fall into three main
categories: (1) System Setup costs, (2) Operations and Maintenance
costs, and (3) Indirect costs. The nature and source of System Setup
costs and the Operations and Maintenance costs are explained above in
the discussion of the Fee Formula and how these costs are factored into
the determination of fees. However, indirect costs also are factored
into the Fee Formula calculation of user fees, and EPA believes this
third major category of system-related costs merits more explanation.
    Indirect costs are the intramural and extramural costs that are
incurred by EPA in operating the system, but that are not captured in
the EPA Program cost and marginal labor cost sub-categories that EPA
tracks as direct costs in determining overall costs and resulting fees.
The indirect costs are part of full cost recovery, because of their
necessary supporting or enabling nature in executing the program. (81
FR 49072 at 49080, July 26, 2016). Indirect costs typically include
such items as physical overhead, maintenance, utilities, and rents on
land, buildings, or equipment. In e-Manifest, these indirect costs also
include the cost of participation by administrative EPA offices outside
of the Office of Resource Conservation and Recovery (ORCR), the lead
office at EPA for implementing the e-Manifest program, and the
participation of upper management level personnel from the EPA offices
that provide support to all aspects of the e-Manifest program. Id.
    Indirect costs tend to be disparate and more difficult to track
closely than other cost categories, because they are typically incurred
as part of the normal flow of work involving many offices across the
Agency, and cannot be attributed directly to the particular activities
they support. Also, the level of participation by different offices,
and the level of indirect costs incurred by them, changes over the
course of the program's implementation. Thus, as we explained in the
proposed rule, indirect costs require a different method of tracking
and accounting than the other categories of e-Manifest costs. Id.
    EPA accounts for indirect costs in its user fee determinations by
developing an indirect cost rate, and factoring that rate times the
base fees determined from the direct cost categories in the fee
formula. Typically, agency-wide indirect cost rates are determined for
EPA user fee programs by EPA's Office of the Controller, using an
indirect cost methodology that this office has developed to meet the
Federal Accounting Standards Advisory Board's Statement of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Standards and Concepts. EPA's Office of the Controller annually
publishes an indirect cost rate for each of the Regional Offices and
for each of the Assistant Administrator-level offices within EPA
Headquarters. Thus, there is an Interagency Agreement (IA) indirect
cost rate issued each fiscal year for the Office of Land and Emergency
Management (OLEM). The Fiscal Year 2015 IA indirect cost rate for OLEM,
which we discussed in the proposed rulemaking preamble and used for
purposes of the proposed rule's table of illustrative e-Manifest fees
at 81 FR 49085 of the proposed rule, was 19.74%. Id. at 81 FR 49080,
footnote 11.
    In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA stated
that it intended to develop a customized indirect cost rate that we
believed would capture the indirect costs of the e-Manifest program at
a greater level of specificity than the IA indirect cost rate for OLEM.
EPA received no public comments on the issue of indirect costs. Nor did
the Agency receive any comments on its statements in the proposal
regarding its intent to develop a new custom indirect cost rate for e-
Manifest.
    EPA is announcing in this final rule the custom indirect cost rate
for e-Manifest, which was based on EPA's existing indirect cost
methodology, and taking into account with more particularity other
appropriate indirect costs attributable to the ORCR program office that
were not captured by the previously used IA rate alone.
    Using the new custom indirect cost rate methodology for e-Manifest,
the indirect cost rate for e-Manifest in fiscal year 2018 is 33.22%.\5\
This indirect cost rate for e-Manifest will be calculated and reissued
each fiscal year. Thus, when the Fee Formula is run to determine e-
Manifest user fees, the applicable indirect cost rate will be factored
times the base fees calculated from the direct cost categories in the
fee formula to arrive at the total user fees.
---------------------------------------------------------------------------

    \5\ The custom indirect cost rate includes those indirect costs
incurred by EPA in operating and managing the e-Manifest program.
This custom rate also includes EPA Headquarters general and
administrative expenses, including OLEM's Immediate Office and the
ORCR's administrative office, which are not captured as part of the
EPA Program costs that EPA tracks as direct costs in determining the
program's overall costs and resulting fees. All costs are captured
in the Agency's financial system.
---------------------------------------------------------------------------

E. What process and factors will be used to revise e-Manifest fees?

1. Background
    In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
proposed both a process and several fee adjusters that the Agency was
considering to address the so-called ``fee trajectory'' concern. Fee
trajectory provides a means to ensure that the program's user fees
remain aligned with any changes to program costs. Changes to program
costs could arise, for example, from increased labor costs for EPA's
internal staffing or for its contractors, from increases in the

costs of licensing software or other system components, as well as from
inflation. In addition, since the calculation of e-Manifest fees is
highly dependent on accurate information about program costs and the
numbers of manifests in use, the e-Manifest user fees need to be
reevaluated regularly to ensure that the fees are based on the most
recent cost and manifest usage data.
    To address fee trajectory, EPA proposed a fee revision process
under which the fee formula would be re-run with the latest program
cost and manifest usage numbers at two-year intervals. EPA based this
proposal on the perceived advantages of providing more stability to
users under a two-year fee schedule, as well as the advantage to EPA of
avoiding the administrative burden of constantly updating and
publishing fee revisions annually. Moreover, we believed that a two-
year fee refresh cycle was consistent with OMB's Circular A-25 user fee
guidance, which requires agencies of the executive branch to conduct
biennial reviews of its user fees, including any adjustments to the
fees charged. See 81 FR 49072 at 49086, July 26, 2016.
    In addition, since EPA would retain the formula and merely refresh
the fee schedules to reflect the most recent program cost and manifest
numbers, the refresh and publication of the revised fee schedules under
the proposal would be conducted informally. That is, EPA would not
conduct notice-and-comment rulemaking with each fee schedule revision
cycle, but would instead publish the revised fee schedule to users
through the e-Manifest program's website, and publish the fee schedules
in this manner 90 days prior to the effective date of the new fee
schedule.
    To enable a more durable fee methodology and avoid the need for
frequent regulatory amendments, EPA included several fee adjusters in
the proposed rule. The point of these adjusters was to keep the
calculated fees current with any anticipated program cost changes, and
avoid having to revise the formula and methodology by new regulations.
If the fee formula with the proposed adjusters could keep the e-
Manifest fees aligned with program cost changes, then EPA could retain
the fee formula over an extended period of time, simply by refreshing
the fees at two-year intervals with the latest budget and manifest
numbers, and applying the regulation's adjusters. This is what EPA
intended by a durable fee methodology.
    EPA proposed several such adjusters. First, we proposed an
inflation adjustment factor predicated on the Consumer Price Index, for
all items not seasonally adjusted, or CPI-U. EPA believed the CPI-U was
a sufficiently representative inflationary index, and we proposed to
use that index to adjust e-Manifest fees between the first year and
second year of each two-year fee revision cycle.
    Second, EPA proposed a revenue recapture adjuster to deal with
revenue losses that might result to the program from imprecise
estimates of manifest numbers used to determine fees in the fee
formula. The fees calculated under the fee formula, and therefore the
revenue to be collected from e-Manifest user fees, are highly sensitive
to the numbers of manifests actually in use each year. Over time, as
EPA obtains data from the system showing precisely how many manifests
are submitted to the national system, the program should be less
vulnerable to losses from imprecise estimates. But particularly in the
initial years of implementation, when our fee formula will work off of
estimates of manifest usage developed from economic analyses rather
than actual experience, imprecise estimates of manifest numbers are an
area of revenue vulnerability. Therefore, EPA included the revenue
recapture adjuster so that we could compare our estimated manifest
usage numbers for each fee cycle with the numbers actually submitted,
and then recapture the revenues lost from inaccuracies in the
subsequent fee cycle. In this manner, the fee methodology would become
self-correcting for any such revenue losses.
    Third, EPA proposed a third adjuster that we referred to as the
uncollectable fee adjuster. Like the above revenue recapture adjuster,
this proposed adjuster also sought to recover revenue losses from the
previous two-year cycle. This adjuster, however, was focused on revenue
losses that arose from fees that proved to be uncollectable after being
billed to facilities. Thus, the effect of this proposed adjuster was to
track how much revenue the program lost from unpaid and uncollectable
fees billed to facilities, and then recover those revenues in the next
fee cycle by increasing user fees sufficiently to recoup those losses.
All the proposed adjusters were aimed at accomplishing full cost
recovery, and providing a means for the fee system to be durable and
self-correcting, where possible.
2. Comment Analysis
    The majority of industry and state agency commenters supported the
proposal to refresh fee schedules at two-year intervals, with informal
publication of the revised fees to the program's website 90 days in
advance of their effective date. Several commenters objected to certain
aspects of the proposed informal fee revision process. An industry
trade association objected to the 90-day lead time for new fee
schedules as too short, and suggested a 180-day lead time was more
appropriate, especially if there were large (>10%) fee increases. Two
industry commenters objected to EPA making any fee changes without
conducting a rulemaking, while a state agency commenter asserted that
new fee schedules should be developed annually.
    Other commenters requested clarification of points raised in the
proposal. One comment asked the Agency to clarify if it was the intent
of the proposed rule that fees would be identical for both years of a
fee cycle, or, would they change between years. Another commenter
requested clarification about the effective date of fee revisions, and
whether a fee would be charged based on the date of initiation of a
manifest, or on the date of receipt at the receiving facility.
    For the proposed fee adjusters, there was general agreement among
both industry and state agency commenters in support of the inflation
adjuster based on the CPI-U as the measure of the inflationary impact.
However, a minority of commenters stated that an inflation adjuster did
not seem necessary, if user fees were to be refreshed as frequently as
every two years. There also was support expressed by several commenters
for the proposed adjuster to recover losses from imprecise manifest
usage estimates. There were strong and general objections expressed by
both industry and state agency commenters to the proposed uncollectable
manifest fee adjuster. Nearly all these commenters expressed the view
that it was unfair to charge responsible users who were paying their
fees on time additional amounts to compensate for non-paying users.
However, one generator did submit a comment in support of the
uncollectable fee adjuster.
3. Final Rule Decisions
    For the final rule, EPA is affirming the proposed fee revision
process to be conducted at two-year cycles by refreshing the fee
formula with the most recent e-Manifest program cost numbers and
manifest usage numbers. We also affirm that the process will be
conducted informally rather than through notice-and-comment rulemaking,
as long as the Agency is using the same fee setting methodology
promulgated in this rule. Thus, the final rule will provide that the
new fee schedules developed every two years

from re-running the fee formula will be published to users via the e-
Manifest program's website, at least 90 days prior to their effective
date. While the Agency appreciates that an annual fee revision process
would be even more responsive to program cost and manifest number
changes than the final rule's two-year cycle, the Agency is persuaded
that any such advantage is overwhelmed by the additional administrative
burden to EPA in conducting a nearly constant, annual fee refresh
process. Also, we believe there are advantages to users in having
access to a stable fee schedule of two years' duration, rather than
having to anticipate and react to a more frequent fee revision process.
    In finalizing the rule with this informal fee revision process, EPA
rejects the comments suggesting that all fee revisions require a new
rulemaking. While we acknowledge that OMB Circular A-25 requires
agencies to promulgate user fees by regulation, EPA concludes that this
requirement is met by developing this Fee Rule announcing our durable
fee methodology through the regulatory process. By developing our
durable fee methodology through rulemaking, EPA is providing the user
community with notice and opportunity to comment on the information and
process EPA will rely on in setting e-Manifest user fees, including
those factors that will be used to adjust fees to align them with
changes in program costs. EPA is aware that other fee programs follow
similar processes in determining and revising their fees. EPA believes
the durable fee methodology and informal fee refresh process announced
in this rule meets all applicable legal requirements and OMB Circular
A-25 policy. Otherwise, the result would be a prohibitively burdensome
administrative process were EPA to constantly develop regulations for
every fee revision. In addition, while EPA understands the desire to
have more lead time to understand and budget for user fee revisions,
EPA concludes that a 90-day lead time should be workable, as it will
enable EPA to base the new fees on the latest cost and manifest usage
trends, while still affording users reasonable time to plan for the
revised fees. Also, by refreshing the fees at two year intervals, it
would seem unlikely that fee changes will be so significant between
cycles that facilities will need six months or more to prepare for
their implementation.
    Based on the public comments and the necessity of full cost
recovery and stable revenues, EPA is finalizing the rule to include the
inflation adjuster based on the CPI-U, and the revenue recovery
adjuster for revenue losses from imprecise manifest usage estimates.
The inflation adjuster will operate to adjust fees between the first
and second year of a fee cycle, so it is likely that fees will not be
identical for both years of a cycle, but differ somewhat to reflect the
inflation adjustment. The revenue recovery adjuster for imprecise
manifest numbers will operate between fee cycles, to adjust fees in the
new cycle to account for revenue losses during the previous cycle.
Since the billable event for e-Manifest fees is the submission of the
final manifest by the receiving facility, the fee charged will be
determined based on the date of submission by the receiving facility,
and not the date of initiation by a generator.
    Finally, EPA is not including the proposed uncollectable manifest
fee adjuster in Sec. Sec.  264.1313(c) and 265.1313(c) of the final
rule. While such an adjuster might help to stabilize program revenues
in the event of significant non-payment incidents, EPA is persuaded by
comments objecting to the fairness of charging responsible users for
the revenue losses occasioned by delinquent payers. In addition, EPA
believes that non-payment episodes will be infrequent, and should be
resolved or moderated through the dispute process provided in the rule,
or through the deterrent effect of the rule's sanctions for non-
payment.

F. What process will be used for manifest data corrections?

1. Background
    In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
proposed a process by which receiving facilities only could submit a
certified corrections submission electronically in order to make
corrections in the data system to existing manifest records. (81 FR
49072 at 49098). The facilities could make these corrections by
accessing the web-based e-Manifest application directly, or, by
uploading a correction submission (e.g., a JSON file) affecting one or
a batch of manifest records. Every correction submission by a facility
would require a Cross-Media Electronic Reporting Rule (CROMERR)-
compliant signature certifying that the data as corrected are true,
accurate and complete. Id. The proposed rule's correction submission
would clearly identify the Manifest Tracking Number of the affected
manifest(s), the items on the manifest being altered, and set out both
the data previously entered and the data as corrected. Id.
    The proposed data correction provisions also included a fairly
detailed process by which corrections would be initiated and reviewed
by interested persons, i.e., other handlers included on the affected
manifest, and state regulators. Critical to this proposed process was
the requirement that all data corrections were to be completed within
90 days of receipt of the manifested wastes, so that the corrections
process would be completed by the date that manifest data could be
disclosed by the system to the public under existing regulations. The
proposed rule discussed one process under which the data correction was
initiated by the receiving facility and another process under which
another interested person (other waste handler or state) initiated a
correction by providing the facility with notice of a data error. In
either case, the proposed rule provided comment windows for interested
persons to respond to the facility's data correction, and the
correction process had to be completed by the facility no later than 90
days post-receipt for the waste shipment. Id. at 49099. Finally, EPA
proposed that a fee would be collected for all data correction
submissions from receiving facilities. Id.
2. Comment Analysis
    EPA received a variety of comments both supporting and objecting to
the proposed data corrections process. A trade association of large
receiving facilities and several members of the industry supported the
major features of the proposed corrections process, including the
proposal that only receiving facilities could submit data changes to
the system, and the proposed requirement to submit all corrections
electronically. These industry members also supported the batch
certification process whereby one electronic signature would suffice to
certify to a batch of data record changes.
    Among members of the waste industry, there were several comments
that dissented to the proposal that only receiving facilities could
enter data changes in the system. The dissenting commenters questioned
why generators, transporters, or state agency representatives could not
also make these changes, and one objected to the idea that the proposed
rule seemed to portray receiving facilities as owners of manifest data,
when generators should be playing this role. Other industry commenters
and a state agency observed that not all facilities would be able to
submit their corrections electronically, and that the rule should
provide appropriate exceptions.
    EPA received many comments from industry and state agencies
objecting to

the proposed 90-day window for making data corrections. These
commenters provided examples of several situations where errors and the
need for corrections would not become apparent until after the 90-day
window had passed, such as errors discovered after containers placed in
storage were opened, during an audit, or while preparing an annual or
biennial report. All these commenters urged EPA to reconsider this 90-
day window, and allow data corrections to occur at any time they are
needed.
    Many industry commenters also objected to the proposed fee for data
correction submissions. Theses commenters asserted that a fee charged
for corrections would operate as a disincentive to correcting data
errors, and denigrate data quality in the system.
    The remaining comments on this topic were concerned with the
clarity of the proposed corrections process, and they suggested several
ideas for clarifying and improving the process. Within these comments
were suggestions that the final rule:
     Clarify the interested parties who can participate in the
corrections process,
     Clarify how receiving facilities will notify off-line
generators of errors, discrepancies, or proposed corrections, and how
off-line generators will notify facilities of data errors,
     Clarify how generators will be alerted to proposed
corrections and how they will be able to validate or dispute such
corrections,
     Clarify which states will receive notices of proposed
corrections,
     Clarify the data validation rules and standards that will
be followed for paper manifests, and the expectations for QA/QC and
resource implications for states, and
     Clarify how the original and corrected versions of the
manifest will be retained in the system.
    In addition, at the initial e-Manifest Advisory Board meeting
conducted on January 10-12, 2017, Advisory Board members discussed the
proposed rule's corrections process and offered suggestions to EPA
representatives. Several Board members suggested there should not be
detailed regulatory provisions or a prescriptive process for data
corrections. Instead, the Advisory Board members suggested a minimal
role for a regulation, and an open process by which any waste handler
named on a manifest could at any time make a data correction. All
interested parties should be made aware of another's proposed data
change, and the last change made in the system would stand until
corrected.
3. Final Rule Decisions
    For the final rule, EPA is accepting the many comments that
objected to the 90-day post-receipt window for making corrections, as
well as the numerous comments objecting to the collection of a fee for
correction submissions. EPA is persuaded by the comments that both of
these proposals could have the deleterious effect of discouraging data
quality.\6\ Further, EPA agrees that all interested persons (e.g.,
waste handlers named on manifests) should have the ability to submit a
data correction, whenever a data error in an existing record becomes
apparent.
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    \6\ EPA notes that the proposed 90-day window on submitting data
corrections was premised in part on the desire to produce final,
corrected manifest data in the system prior to the data becoming
publicly available by virtue of the One Year Rule's policy that
manifest data shall be made publicly available 90 days after receipt
of a shipment at the receiving facility. The result of the decision,
in this final rule, to remove the proposed 90-day corrections window
is that in some instances, the data disclosed to the public after 90
days may not be final data and may be subject to subsequent
corrections.
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    EPA also is accepting the suggestion of e-Manifest Advisory Board
members that the e-Manifest data corrections process should be an open
process governed by minimal regulatory provisions, and without
regulatory limits on who, when, or how many changes are made to
manifest data records. Therefore, the final rule provisions on data
corrections are much simpler than the proposed approach, and specify
only that any interested person (e.g., waste handler named on the
manifest) may make a data correction submission at any time. Data
correction submissions must be made electronically, with electronic
notice to other interested persons shown on the manifest. The
correction submission may relate to an individual record or to an
identified batch of records, and must be accompanied by a CROMERR-
compliant certification that to the person's knowledge and belief, the
data as corrected will cause the affected data records to be true,
accurate, and complete.
    EPA emphasizes that under the final rule, the initiation of data
corrections is not limited to receiving facilities, so the proposed
rule approach under which only receiving facilities could submit
corrections (at their own initiative or in response to a notice of
error from an interested party) is not being finalized in the
regulation. Instead, the final rule will simply state that any
interested person (e.g., waste handler shown on a manifest) may submit
a data correction submission at any time, by submitting a single record
or batch correction electronically to the system; by making the
required CROMERR-compliant certification to that person's knowledge and
belief, the data records as corrected are true, accurate, and complete;
and by giving electronic notice to the other interested persons shown
on the manifest. Consistent with the proposed rule, the correction
submission must indicate the record being corrected by its Manifest
Tracking Number, must identify the Item Number of the manifest data
fields affected by the correction, and for each data field corrected,
must show the previously entered data and the data as corrected. The
final rule corrections process is therefore an open and cumulative
process under which any interested person may submit a correction
affecting the data from the original manifest record, or affecting the
data from previous corrections submitted by others. There is no limit
to the number of corrections that may be entered, and the last
submitted correction is presumed valid and accurate unless corrected by
a subsequent data correction.
    Those persons making data corrections must provide electronic
notice of the changes to other interested persons shown on the
manifest. The notice to interested persons must be provided by email or
by another system-generated electronic notice.
    With respect to data corrections from off-line generators, and
notices of corrections to these off-line generators, all generators
must provide an email address where they may be contacted, so that they
may participate in the data corrections process and receive correction
related notices. While a generator may receive notices of data
corrections by email, a generator must have system access credentials
and must enter electronically any data corrections relating to
electronic or paper manifests in the system, and must provide the
required certification of any data corrections so entered.
    Finally, EPA is clarifying that it is not the intent of the data
corrections process to produce amended or revised manifests, but rather
to produce changes only to the data records from manifests that reside
in the national data system. The role of the manifest is to serve as a
tracking document during the transportation of off-site shipments of
hazardous waste and state only regulated wastes. The function of the
manifest is complete at the time the receiving facility signs the
manifest to indicate the receipt of the waste (or a discrepancy), and
the signed copy showing the data at the time of receipt is distributed
to the other interested persons. The data from completed,

original manifests become the first representation of the manifest data
records in the data system, but these data records are subject to
revision through the final rule's corrections process, as well as
through the discrepancy reporting process. The resulting data
corrections will be made only to the data records in the national data
repository, but will not result in the original, completed manifests
being revised and redistributed. The system will retain the final
manifest copy signed by the receiving facility as the copy of record of
the completed manifest, and all subsequent corrections will be entered
in the data system records, with an auditable trail of the corrections
made and who made them retained in the system.

G. How does the final rule address fee sanctions?

1. Background
    EPA proposed several tiers of fee sanctions in the User Fee
proposed rule that would be included in the e-Manifest fee program to
induce manifest users to pay their fee obligations promptly. EPA
explained in the proposal that these sanctions are necessary because
the e-Manifest fee program would become vulnerable to revenue
instability if significant numbers of invoiced payments were not paid
promptly. Such instability would quickly put at risk the Agency's
ability to operate the e-Manifest system on a self-sustaining basis and
to meet its financial obligations in running the national system. For
the purpose of ensuring timely payment of e-Manifest user fees, EPA
proposed sanctions that would increase in their severity based on the
degree and duration of the delinquency. See 81 FR 49072 at 49094, July
26, 2016.
    Specifically, EPA proposed a first tier sanction based on a
financial penalty under 31 U.S.C. 3717(a)(1), a provision of the
federal claims collection statutes that imposes an interest charge at
the Current Value of Funds Rate or CVFR on those persons who are
delinquent in paying claims owed to the federal government. EPA
considers a fee payment to be delinquent and subject to this interest
charge if payment is not received by the due date specified on an
invoice, which for e-Manifest fees, would be 30 days from the date of
the invoice. Thus, for e-Manifest users, payments received later than
30 days from the date of the invoice would be subject to this initial
interest charge measured at the currently prescribed CVFR rate.
    If the first tier interest charge at the CVFR rate were not
effective in causing a delinquent fee payer to make the outstanding
payment, then the proposed rule's fee sanctions would assess a second
tier 6% financial penalty charge for e-Manifest user fee debts that are
more than 90 days past due, that is, user fee debts that are not paid
by the date 120 days from the date of the invoice. Like the initial
interest charge at the CVFR rate, this additional 6% financial penalty
also is based on the federal claims collection statutes. 31 U.S.C.
3717(e).
    As a third tier of proposed fee payment sanctions, EPA proposed
that receiving facilities would become eligible for inclusion in a list
of delinquent fee payors when the period of their delinquency extended
to 120 days or greater. Finally, the proposal also explained that if
any manifests remained incomplete because of owed fees, then the
receiving facility could be in violation for failure to fully complete
a manifest per proposed Sec.  [thinsp]264.1315(d) and/or Sec.
[thinsp]265.1315(d), and EPA could enforce this violation under RCRA
section 3008.
    In addition to these several proposed sanctions, EPA requested
comment on additional sanctions (i.e., denial of manifest services and
the withdrawal or suspension of authority to operate (i.e., RCRA ID
numbers or permits). See 81 FR at 49094, July 26, 2016. EPA's intention
was to develop a credible mix of available sanctions that could be
scaled to the degree of the offense caused by the delinquency or non-
payment, with the expectation that this framework would minimize or
avoid delinquent payments.
2. Comment Analysis
    Industry and state comments on the proposed rule generally
supported the financial sanctions, as well as the civil enforcement
sanction for ``egregious'' cases, but several industry stakeholders
expressed concern with the proposed definition of ``incomplete''
manifests. These commenters stated that the proposed definition could
be construed to negatively impact generators, who are more generally
responsible for completing RCRA manifests. Other commenters showed
little support for the publicity sanction or denial of services as a
sanction. These commenters indicated that a publicity sanction would
not likely be effective in influencing payment behavior and would be
unprecedented in existing EPA fee programs. Other comments opposing the
denial of services sanction indicated such a sanction would be too
severe, as it would tend to penalize generators too much in their
efforts to obtain waste services, and would likely cause a backlog of
manifests in the EPA data system. Another commenter suggested that
denial of services to facilities and their customers could cause
constrictions in waste management and perhaps cause frustrated
generators to mismanage their wastes.
3. Final Rule Decisions
    After careful consideration, EPA is accepting the numerous comments
that generally supported the tiered sanction approach and that provided
particular support for the proposed financial sanctions under the
federal claims collection statutes and the availability of RCRA civil
enforcement orders to enforce non-payment of fees. Thus, EPA is
finalizing these proposed sanctions at 40 CFR 264.1315 and 265.1315
with slight modification in the rule. Specifically, the final rule
adopts the proposed sanctions detailed in paragraphs (a) and (b) at
Sec. Sec.  264.1315 and 265.1315 for financial interest and penalty
charges without change. EPA, however, is persuaded by the adverse
comments to the proposed publicity or delinquent payors list sanction
and therefore is not adopting this proposed sanction in the final rule.
    EPA also accepts the commenters' opposition to the ``incomplete
manifest'' terminology in proposed paragraph (d) of Sec. Sec.  264.1315
and 265.1315. EPA intended to define a regulatory violation applicable
only to the receiving facilities that have not ``completed'' their
manifest transactions by submitting their manifests to the system and
paying fees for the manifest services they have obtained from the
system. The proposed violation was not intended to cause confusion
relating to what is meant by the requirement for generators to initiate
and complete manifests to track their off-site waste shipments. EPA,
therefore, has amended the proposed ``incomplete manifest'' terminology
in the rule to keep manifest completion distinct from the financial
context intended in the proposed rule. To avoid any confusion with the
concept of manifest completion, EPA is denoting a manifest for which
fees remain unpaid by the receiving facility as an ``unperfected''
manifest. The final rule amends the proposed paragraph (d) at
Sec. Sec.  264.1315 and 265.1315 by assigning it as new paragraph (c)
and clarifying that a manifest is not fully perfected until it is both
submitted to the system and all fees for those manifests have been paid
by the receiving facility submitting it. Thus, the RCRA civil
enforcement sanction

included in this final rule would apply only to the receiving
facilities that are involved with unperfected manifests by not
submitting them to the system or by not paying the applicable fee for
their processing. This civil enforcement sanction would have no
applicability to the activities of generators in their use of the
manifest. The designation of a manifest as ``unperfected'' for purposes
of payment by a receiving facility in no way impacts the validity of a
manifest supplied by a generator for tracking its waste during its
transportation off-site to a facility.
    Finally, EPA also accepts the numerous commenters that objected to
the additional sanctions (i.e., denial of manifest services and the
withdrawal or suspension of authority to operate) discussed in the
proposal. Therefore, EPA is not promulgating these sanctions as part of
this rule. EPA concludes that the several financial and civil
enforcement sanctions adopted in the final rule create a credible mix
of available sanctions that increase in their severity based on the
degree and duration of the delinquency.

H. How does the final rule address user fee disputes?

1. Background
    In the User Fee proposed rule, EPA acknowledged that over the
course of invoicing users for their fee obligations, errors may
occasionally be made and thus may give rise to disputes concerning the
amount of a user fee payment that is due in response to an invoice. EPA
explained in the proposed rule that the Agency is not proposing a
formal dispute resolution process governed by explicit and detailed
regulatory provisions and processes. Rather, EPA intends to address e-
Manifest fee disputes through a more informal process that EPA
concludes will be sufficient and less burdensome than a formal process,
while scaled more appropriately to the nature of such disputes. EPA
requested comment on an informal fee dispute process under which users
who believe their invoice is in error (statement incorrect on numbers
or types of manifests billed, or a mathematical or other error) could
first seek resolution via the system's billing representatives by
making a claim identifying the nature and amount of the error. If not
satisfied by the handling of their claim at this initial level, the
claimant could appeal to the Office Director (OD) of EPA's Office of
Resource Conservation and Recovery (ORCR), whose decision on the claim
would be final and not subject to further Agency review. See 81 FR
49093, July 26, 2016.
2. Comment Analysis
    Industry commenters generally supported the proposed informal
process, but one industry commenter had reservations about the fairness
of the proposed appeals process. This commenter suggested that the ORCR
OD would not be as unbiased as an independent third party and suggested
that the OD's decision be subject to the Alternative Dispute Resolution
program administered by the EPA's Office of General Counsel. See 65 FR
81858, December 27, 2000. Another commenter underscored the need for
EPA to establish accessible customer support for timely resolutions.
One state commenter, however, opposed the proposed informal process,
and suggested that EPA should instead adopt a formal dispute resolution
process that affords due process and creates perhaps a stronger record
for fee dispute decisions.
3. Final Rule Decisions
    After analyzing the comments to the proposed informal process, EPA
is promulgating the proposed informal process in the final rule. EPA
acknowledges the industry commenter's apprehension about the fairness
of the appeal process under the informal process, but the Agency does
not accept the industry comment favoring an appeal of the OD's decision
to an independent third party decision maker under an Alternative
Dispute Resolution (ADR) process. EPA opposes this suggestion for a
couple of reasons. Although the ADR process offers conciliation,