typically require use of more than one manifest to effectively track
and closeout the original manifest. There are several variations of
complex manifests, some of which \16\ are detailed as possible
candidates for fee premiums.
---------------------------------------------------------------------------

    \16\ EPA did not include imports or exports, as we do not
believe that completing the Item 16 data for international shipments
introduced significant processing costs. Also, continuation sheets
were not included as a candidate for a premium, as each sheet
submitted as a continuation sheet would be charged a separate per
manifest fee.
---------------------------------------------------------------------------

    i. Consolidated Shipments. Consolidated shipments or split loads
often require use of one or more manifests to effectively track and
closeout the original manifest for the hazardous waste shipment. For
instance, consolidated shipments require manifest users to link
individual manifests from consolidated loads to a new manifest to
present the overall description. The original manifests for such
shipments must be linked and carried forward so that they may be closed
out on receipt to the original generators. EPA has concluded that
manifest activities for consolidated shipments do not necessitate fee
premiums, because the multiple manifest nature of these transactions
will itself provide for ample fees to be collected. Therefore, the EPA
will not assess any additional fee premium for such shipments. Instead,
EPA will assess a per manifest charge for each original manifest that
is consolidated, plus an additional per manifest charge for the
``cover'' manifest that provides linkages to the original manifests and
describes the total quantities of waste that are shipped.
    ii. Split or Breakdown Shipments. This type of complex shipment
occurs when a larger shipment of waste is divided into smaller
shipments for transport, such as a rail car cargo that is off-loaded
and reshipped on several truck shipment manifests. Thus, the larger
shipment is considered to be ``split'' into or ``broken down'' into
several smaller shipments that require individual, separate tracking.
These

split shipments may occur at either permitted facilities or at non-
permitted RCRA 10-day transfer facilities.\17\ EPA has concluded that a
distinct fee premium is not needed for split or breakdown shipments.
Again, because the tracking of these shipments will itself require the
use of multiple manifests, the per manifest fees that result are ample
to cover the costs of these complex tracking transactions. At a
permitted facility, for example, the EPA would assess a fee for the
original manifest when it is closed out at the permitted facility and
also assess a separate per manifest fee for each resulting split load
that is recorded on a new manifest. Further, if split shipments occur
at a transfer facility, then the original manifest would be amended to
indicate lesser quantities for a portion of the split load while
another manifest(s) would be prepared for any remaining hazardous
wastes. Thus, EPA would assess a per manifest charge for the amended
original manifest and any additional manifests prepared for the split
waste shipments when processed at a transfer facility. In such cases,
no useful cost recovery purpose would be served by assessing any
premium fee.
---------------------------------------------------------------------------

    \17\ These types of shipments may also occur at intermodal
facilities, a specific type of permitted or transfer facility at
which waste materials are transferred between modes of
transportation, e.g., truck to rail.
---------------------------------------------------------------------------

    iii. Hazardous Waste Rejections or Regulated Residues. These
complex manifest transactions occur when a designated facility receives
a hazardous waste shipment but does not accept it, either because of
restrictions in the facility's permit, capacity limitations, or other
reasons. A partial rejection occurs if a designated facility accepts a
portion of the shipment but rejects the remainder. Container residues,
on the other hand, are hazardous wastes that remain in regulated
amounts in containers such as drums and in tank vehicles used for
transport, after most of the contents have been removed. The rejected
hazardous wastes or regulated residues often are forwarded on new
manifests that are linked to the original manifests. While the manifest
tracking procedures for these shipment are complex, the EPA has
determined that such transactions do not warrant a distinct premium
fee, because EPA will assess a per manifest charge for the original
manifest and a per manifest charge for the new manifest used to forward
the full or partial shipment, or residue shipment.
    In some instances, however, hazardous wastes rejections are
forwarded on the original manifests and do not require use of a new
manifest to forward the shipment or return it to the generator. EPA
acknowledges that that in these limited cases, the original manifest
may be used to forward or return full rejections, and that additional
data elements will need to be supplied to track such shipments. EPA,
however, has concluded for this proposal that a premium is not
necessary for such transactions. While completion of Item 18b to track
continued shipping of rejected wastes on the original form will
necessitate additional data entries, the intent of Item 18b is to
enable continued tracking without completing a new form. EPA believes
that it would be counter-productive to charge a fee premium for
continuing the original form. In addition, the EPA does not believe
significant costs to EPA would result from processing the additional
Item 18b entries.
    iv. Help Desk Encounters. A help desk will be established to assist
e-Manifest users with technical issues (e.g., password, log-on,
troubleshooting system connectivity issues) that arise in connection
with their use of electronic manifests. Currently, the proposed Fee
Formula discussed in Section III.C of the preamble includes help desk
costs among the O&M costs that will be allocated generally to each
manifest in the system. Help desk costs are a type of intervention for
which there is some rationality in charging a per encounter fee to the
users. This is particularly valid if it is found that certain users
utilize the help desk excessively, thereby obtaining more than their
``fair share'' of services, and depriving others of help desk services.
Despite the logic for charging a premium for help desk encounters, the
EPA has determined at this time that the agency will not assess fee
premiums for help desk costs. EPA intends to aggregate and apportion
help desk costs as system O&M costs on a per manifest basis, as
intended by the current fee calculation formula. Further, it is not
clear whether a per encounter charge or a charge based on time utilized
would be more equitable for any premium. Given the uncertainties of
pricing and collecting these types of fees, the EPA believes it makes
greater sense to spread help desk costs across all manifests by
aggregating these costs as part of system O&M costs.
    v. Submission and Return of Stray Documents. Based on consultations
with the states, the EPA has discovered that states frequently (about
25% of incoming mail) receive extraneous documents that are forwarded
to their tracking programs along with the required manifests for
processing. These extraneous documents can include cover letters, Land
Disposal Restriction (LDR) or other regulatory documents, and even
miscellaneous flyers or other documents of no relevance to the
manifest. While the EPA will not collect and process these documents in
the e-Manifest system, the agency has some obligation to return such
stray documents to their senders. Therefore, the Agency intends to
return stray documents (other than cover letters) to the senders
without processing their content and initially retain the envelopes to
enable their return. The effort to sort and return these documents by
mail to their senders will introduce costs that EPA believes should be
recovered by a fee premium.
    The EPA has made this determination for a couple of reasons. First,
the EPA believes that the administrative costs to the agency would be
significant for scanning or retaining envelopes, weeding out stray
documents for return, and for the postage and clerical costs of
returning these items to senders. Consequently, the EPA believes it
would be more appropriate for the agency to assess a premium fee per
stray document for such activities rather than apportion them across
all manifests by aggregating these costs as part of system O&M costs.
Second, the EPA believes a fee identified with these submissions should
help to deter these submissions from occurring prospectively. Based on
these two factors, the EPA is proposing to assess a premium fee per
stray document to TSDF users who include extraneous documents in their
submissions. The EPA also proposes to charge the fee at the time of
paper manifest submission, so stray document premium fees could be
added to the regular per manifest fee without difficulty. EPA requests
comment on this proposed fee premium and on the point in the process
for which the fee would be assessed (If submitting comments on this
issue, please use comment header: 9. Stray and Extraneous Documents).
    vi. Manifest QA and Correction Submissions. Based on consultations
with several states with relatively robust manifest programs, EPA has
learned approximately 10-20% of all manifests require corrections
following submission to the states. Each state has its own method for
conducting QA/QC with specific validation rules.
    The most common issue found during state validation is illegible
handwriting on the paper manifest, which seems to be the focal point of
each state's QA/QC process. Some states will validate the handler IDs
on the manifest against their database housing RCRA IDs. Other states
attempt to identify typos or

obvious errors with quantities, units of measure, and the handler
information. Currently, if a manifest fails the state's QA/QC process,
the state will notify the facility through official notice of
correction, phone, or email of the needed correction along with any
appropriate fines. In response, the facility will return the correction
to the state, along with appropriate payments. Some states, such as
California, have regulated processes for submitting signed correction
letters with the corrected manifest. Other states may accept
corrections verified by the handler via phone or email.
    Because EPA will collect both electronic manifests and paper
manifests that continue in use, the e-Manifest program must assume some
responsibility in the QA/QC manifest process. The states also expect
that the EPA would run some type of federal QA/QC on manifests
received, such as several basic validation rules. Following the EPA's
QA/QC process, the states would then execute their state-specific QA/
QC, as desired. Currently, the EPA is actively engaged in the
development of the EPA system, and will establish the validation rules
as part of system design. Prior to system launch, the EPA will request
input from both industry and state stakeholders on the validation rules
that would be used to identify manifest errors or share the validation
rules with industry to help mitigate invalid manifests sent to EPA.
Additionally, EPA could develop a validation engine that could be used
by industry prior to submitting manifests.
    Although EPA continues in its efforts for system planning and has
not made final decisions regarding system design, the agency believes
that that there should be some submission required by TSDF users to
execute manifest corrections in the e-Manifest data system. In section
III.V of this preamble, the Agency in fact proposes such a data
correction submission and process for initiating manifest data
corrections. The regulatory requirements for such correction submission
are proposed at Sec. Sec.  264.71(l) and 265.71(l) of this proposed
rule. In addition, the EPA anticipates that it would not receive
manifest corrections by postal mail but would instead receive all
manifest correction related submissions electronically. The section
III.V corrections process discussed later in this preamble and in the
proposed regulations would require all such corrections to be submitted
electronically by facilities.
    The Agency believes that it should not incur significant
administrative costs resulting from electronic manifest corrections.
For electronic manifests, manifest edit checks and corrections would
primarily occur prior to submission. The e-Manifest system would apply
validation rules that could be executed automatically, and the system
could alert the user of any errors. Thus, the EPA is proposing at this
time that it will not assess fee premiums for processing corrections
submissions for electronic manifests. Instead, QA/QC process costs for
electronic manifests would be spread among the O&M costs that will be
allocated generally to each manifest in the system.
    While the EPA anticipates to also use some automated validation
rules for all paper submission types (i.e., XML, postal mail, image
file), the automated QA/QC checks in some instances would occur after
manifest submission, particularly for postal mail submissions. Thus,
the EPA believes it is likely that significant administrative costs
will result to EPA for processing corrections to paper submissions.
Thus, the EPA believes the paper manifest corrections process would
involve allocable system costs in responding to the correction
submissions and re-keying data to correct previous entries made in the
system. For that reason, the EPA is proposing to assess fee premiums
for processing corrections submissions for paper manifests. The EPA
requests comment on the proposed premium fee for processing a
correction submission for paper manifests. In addition, the agency
requests comment on when in the paper processing operation such premium
fees should be assessed and collected (If submitting comments on this
issue, please use comment header: 10. Paper Manifest Corrections).
    vii. Paper Use Penalty. As discussed previously in Section III.C of
the preamble, EPA is proposing to assign a differential fee to each
manifest type (fully electronic, XML, image, paper) based on the
varying labor costs to EPA to process data from each type into the
system. In addition, should electronic manifest adoption lag (not
achieve 75% use in four years), EPA is proposing to transition to a fee
calculation formula that would allocate the paper center's operation
and maintenance costs only to the paper manifest submission types. The
cost-based approach of the proposed fee calculation formula for
allocating system development and operating costs would already result
in a higher differential fee assessed for paper manifest use than for
electronic manifests. For example, under the proposed fee formula, the
EPA now estimates paper manifests mailed to the system carry a per
manifest charge about 88% greater than electronic manifests, while the
paper manifests submitted as XML files would carry per manifest charges
about 15% greater than fully electronic manifests. Thus, there is
already a ``premium'' associated with paper manifest types, based
solely on the formula's cost considerations. Moreover, the fee formula
as proposed could become even more aggressive in elevating paper
manifest fees in four years. Therefore, the EPA at this time does not
believe that paper manifest usage necessitates a distinct or additional
fee premium. Instead the EPA will defer any additional paper manifest
premium until we see how actual implementation unfolds, and how the
proposed fee formula itself operates as an incentive for greater
electronic manifest use. The EPA requests comment on this proposal to
rely on the fee formula itself to incentivize electronic manifest use,
and not to include a distinct monetary penalty to discourage paper
manifest use (If submitting comments on this issue, please use comment
header: 11. Incentivize Electronic Manifest Use).

F. How will fee payments be made?

1. Background
    The e-Manifest Act provides EPA the authority to collect fees for
both electronic manifests and paper manifests that continue in use. The
Act also granted EPA broad discretion to collect such fees in advance
or as reimbursement services. Because Congress intended that the fees
fully fund the e-Manifest system, EPA must institute a fee collection
process that facilitates prompt payment of fees to ensure that the
agency produces a stable revenue stream that will fully recover program
developmental and operational costs. The EPA has considered several
options to address how the e-Manifest system can most effectively and
efficiently collect a large number of small value fees from TSDFs.
    Specifically, EPA examined existing user programs within the agency
to ascertain how these programs determine and revise their fee
schedules, and to identify features or experiences in these programs
that are takeaways for e-Manifest. For instance, the Toxics Substance
Control Act (TSCA) authorizes fees for the Office of Chemical Safety
and Pollution Prevention's (OCSPP's) lead abatement program. TSCA
section 402(a)(3) authorizes fees for the accreditation of lead
contractor training programs and certification of contractors engaged
in activities that disturb lead-based paint during painting,
renovation, remodeling, and repair of target

housing. The original fees for the Lead-based Paint Activities program
(the lead abatement program) were established in 1999.
    The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
amendments passed by Congress in 2004 authorized a registration fee
program to defray EPA's costs in reviewing and approving applications
for specific pesticide registrations, amended registrations, and
associated tolerance actions. The goal of this fee system is to create
a more predictable evaluation process for affected pesticide decisions
and to couple the collection of individual fees with specific decision
review periods. The 2004 amendments are also known as the Pesticide
Registration Improvement Act of 2003 (PRIA).
    Section 217 of the Clean Air Act authorizes EPA to collect fees to
recover Agency costs related to various activities (i.e. new vehicle or
engine certifications, compliance monitoring, testing, etc.) incurred
by the Office of Air and Radiation to administer its motor vehicle and
engine compliance program (MVECP). Unlike the e-Manifest program, these
programs receive additional appropriated funds, unrelated to the fees,
to fund their program operations.
    In addition, EPA consulted with the ETC, a trade association of
commercial environmental firms that recycle, treat and dispose of
industrial and hazardous waste. EPA conferred with ETC and its members
in April 2015 to gather feedback on several of the fee collection
issues and options discussed in this proposed rule, as its members
would be primary users of the system and responsible for fee payments.
Based on examination of existing fee programs and our consultations
with ETC, EPA is considering several fee collection approaches for e-
Manifest. Specifically, the Agency is considering pre-payment options
based on projected or historic use, and an invoicing option under which
users would be invoiced for fees based on their actual manifest usage
during the previous billing cycle.
2. Payment Collection Options Under Consideration
    a. Pre-payments Based on Projected or Historic Use. EPA examined
two variations of advance payments. Under the first approach, TSDF
users would pay in advance one lump sum annual fee for their projected
manifest usage for an entire year. Under the second approach, TSDFs
would make monthly recurring payments of an advance, fixed amount.
There is precedent for advance payments of user fees in several of
EPA's existing user fee programs. For example, the EPA's Office of
Chemical Safety and Pollution Prevention and Office of Air and
Radiation fee programs typically require advance payment prior to
administering program services involving the review of applications for
the various certifications and registrations administered by those
programs. Under the first advance payment approach, TSDFs would pay a
one-time annual fee for the entire year. TSDFs users would self-declare
on a fee calculation form provided by EPA the number of manifests they
expect to use based on the prior year's usage amounts. In addition,
TSDFs would be expected to apportion manifest usage between electronic
and paper manifests. EPA would charge and collect the lump sum fee
based on these projections. EPA would either credit TSDFs for
overpayment (if their actual usage was less than predicted by previous
year's usage), or invoice facilities at the end of the year for a
reconciliation payment for any actual underpayment, should actual usage
exceed the estimates based on the previous year's usage.
    Under the second pre-payment approach, EPA would charge TSDF users
a fixed one-twelfth payment amounts on the first of each month, with
the payments occurring as a pre-authorized Automated Clearinghouse
(ACH) debit from a facility's commercial account. Like the lump sum
advance payment option, TSDFs would be expected to self-declare the
number of manifests they expect to use (based on prior year's usage) on
a fee calculation form provided online by EPA. Facilities would also
apportion their manifest usage between electronic manifests and paper
manifests. In addition, the TSDFs would then divide their annual use
projections by twelve to calculate the number of electronic and paper
manifests projected per month. The appropriate monthly fee for
electronic and paper manifests would be calculated, and from this
calculation, the amount of the recurring monthly debit would be
determined. The EPA would either credit TSDFs for overpayment (if their
actual usage was less than predicted by previous year's usage), or
invoice the facilities at the end of the year for a reconciliation
payment for any underpayment, should actual usage exceed the estimates
based on the previous year's usage.
    b. Invoicing Users Monthly for Actual Usage. Under this approach,
EPA would allow TSDF users to use manifests for a monthly period and
then electronically invoice users for their actual manifest use over
that billing month. Precedent exists at EPA for invoicing user fees,
particularly in the Office of Pesticide Program's pesticide maintenance
fee program, which invoices holders of active pesticide registration
each year for the fees necessary to maintain their registrations.
    The invoice for e-Manifest services would provide the following
information:
     The TSDF's name, address and EPA ID Number;
     The total number of paper and electronic manifests
transactions during the billing cycle;
     The manifest ID numbers and dates of service for each
paper and electronic manifest used during the billing cycle;
     The billing cycle dates and invoice due date; and
     Any premium fees assessed during the billing cycle.
    Unlike the aforementioned pre-pay options, the fees collected under
this option in the first year and beyond are not based on projections
from previous year's usage data, and are more precise in matching fee
liability to a facility's actual manifest usage.
3. What methods of payment will be accepted?
    TSDF users could use any payment method of their choice supported
by the Department of the Treasury's Pay.gov \18\ electronic payment
collection services (or any applicable alternative or successor to
Pay.gov developed by Treasury) as long as EPA's financial tracking
systems are able to obtain and process the selected method of payment.
Specifically, TSDFs would be expected to create payment accounts in
Pay.gov and use one of the electronic payment methods currently
supported by Pay.gov (e.g., Automated Clearing House debits (ACH) from
bank accounts, credit card payments, debit card payments, or PayPal or
Dwolla). Because Pay.gov does not accept paper checks as an approved
method of payment, EPA will not accept paper checks as payment for e-
Manifest services.
---------------------------------------------------------------------------

    \18\ The URL for Pay.gov is http://www.pay.gov.
_____________________________________-

    EPA will either develop with e-Manifest system activity data an
invoice based on manifest usage, or, the Agency will transmit usage
information to Pay.gov, which will generate electronic bills for
facilities using Pay.gov's e-Billing Service. Thus, either EPA or
Pay.gov will send notifications regarding bills electronically to
facilities, and not by postal mail. Regardless whether the e-Manifest
system or Pay.gov sends the electronic bill notification, it will
direct the TSDF users to go to the Pay.gov payment site to obtain their
invoices, and to make

their electronic payment using one of the aforementioned electronic
payment methods.
    In the case of advanced payments, TSDF users would have to
authorize EPA to debit their commercial banking accounts automatically,
for the amount of the one lump sum payment in advance for the entire
year of projected manifest usage. EPA would then invoice the TSDF user
for a second or reconciliation payment, or credit its account for
overpayment, at the end of the year.
    Similarly, under the monthly pre-payment approach, TSDF users would
have to pre-authorize EPA to debit their commercial banking accounts
for the amount payable to EPA through Pay.gov automatically so that the
recurring one-twelfth fixed payment amount could be debited each month.
EPA would invoice a final reconciliation payment to a TSDF user, or
credit its account for overpayment, at the end of the year so that
actual usage and fee obligations could be squared with the projected
usage figures used to generate the advance fee payments.
4. Analysis of Payment Collection Options
    EPA believes the pre-payment options as well as the monthly
invoicing (reimbursement for services) option detailed peviously are
authorized by statute, attractive and implementable for e-Manifest.
However, each option has distinct characteristics that create risks or
complexities for either EPA or industry stakeholders. As mentioned
previously, the user fees are intended to provide the resources
necessary to enable full funding of the e-Manifest program without the
need for additional sources of funding.
    On an administrative level, the pre-payment options are
advantageous, as they allow for the collection of fees in advance of
manifest services, which is administratively efficient on the front-end
of the collection process. Such an approach could also provide a more
stable revenue stream to cover system costs throughout the year,
because of the nearly automatic, scheduled nature of the payments. This
feature of the advanced payment option could also generate revenue more
promptly for the initial year of system operations, facilitating EPA's
ability to pay promptly its system related expenses, and also reduce
the revenue stability risks posed by late or non-payments. However, the
advance payment options would entail a greater administrative burden on
the back-end of the collection process, because of the necessity to
bill or invoice users at the end of the year for a reconciliation
payment to square actual usage with estimated payments, or to process a
credit in the case of overpayments. If users do not monitor their
monthly payment records and track closely their actual manifest usage
levels over the course of the year, disparities could develop that
might produce unexpected billing amounts or possibly disputes at the
end of the year. Finally, the monthly advance payment option has the
advantage of harmonizing with the fixed, recurring electronic payment
option supported by Treasury through Pay.gov. Currently, a recurring
monthly payment to Pay.gov can occur as an ACH electronic payment, but
only if the recurring monthly payment is for a fixed amount. EPA has
aligned the advance monthly payment option, with its estimated monthly
payment calculation, with the Pay.gov fixed recurring payment approach
in order to take advantage of the nearly automatic nature of this
specific electronic payment process.
    Under the monthly invoicing (reimbursement) option, developing and
executing invoices each month for several hundred facilities will
entail more of an administrative burden on the front-end of the
collections process, as EPA would need to process and each facility
would receive and respond to 12 monthly invoices each year, rather than
one reconciliation invoice at the end of each year. However, this
option would eliminate the need for an annual reconciliation process at
the end of the year, and any billing surprises that might arise if
estimated payments and actual usage should diverge during the year. For
users, the monthly invoicing option also avoids the necessity for TSDFs
to complete their application at the start of each year that computes
the amount of their monthly fixed payment amount. Finally, the monthly
invoicing (reimbursement) option is advantageous for users, as it bills
facilities based on their actual manifest usage and their actual
involvement with electronic and paper manifests. This approach does not
raise issues of imprecision in revenue collection, as it would bill
facilities for exactly the amounts due from the actual numbers and
types of manifests submitted. However, the flipside of this advantage
is that it potentially creates some revenue vulnerability to the e-
Manifest program if payments are not made regularly and on time. In
that event, EPA would be forced to engage in collection activities and
pursue sanctions against delinquent fee payers, entailing additional
administrative costs to the Agency.
    In consultations with the ETC, the Agency learned that ETC members
generally favor the invoicing approach to the advance payment options.
ETC members advised that there are variations in manifest usage from
year to year, and billing for actual usage avoids the imprecision of
trying to estimate fees based on a previous year's usage. ETC members
did indicate that with respect to advance payments, that option could
be more attractive if the advance payments were paid monthly rather
than as a lump sum, and if there were incentives (e.g., cost savings)
tied to using this method.\19\
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    \19\ In a preliminary analysis of potential cost savings
performed by EPA's Research Triangle Park Finance Center, it was
estimated that an advance monthly payment option might result in
cost savings to EPA of several hundred thousand dollars, primarily
because of lesser staffing (FTE) needs for the reduced invoicing
effort associated with this option. If these cost savings were
distributed across all manifests, user fees under the advance
monthly payment option could be reduced by perhaps 10 to 20 cents
per manifest.
---------------------------------------------------------------------------

5. What is EPA proposing for its fee collection methods?
    While EPA requests comment on both the advance monthly fixed
payment approach and the monthly invoicing approach discussed
previously, EPA is proposing to implement e-Manifest user fee payments,
at least initially, by invoicing users monthly for their actual
manifest usage activity in the prior month. EPA believes that there are
advantages to billing monthly for actual usage, rather than for
estimated usage from prior years' activities, and that this proposal
will result in revenues matching system activity by users more
precisely. The e-Manifest system will maintain records of manifest
submission activity by users, and these records should provide a solid
foundation for accurate billing and payment collections. However, the
proposed approach will entail significant administrative effort by EPA
to generate monthly invoices for all receiving facilities, and the
potential for additional effort pursuing collection activities for any
delinquent payments. These administrative efforts from invoicing
facilities for monthly payments will result in additional operational
costs that will need to be captured by the e-Manifest user fees.
Despite the administrative effort and cost of invoicing monthly, the
Agency believes that the monthly invoicing approach is a sound option
for e-Manifest to implement initially.
    While EPA is proposing the monthly invoicing option, we are also
soliciting comment on the advance monthly payment option and an
alternative option that combines these two approaches to payment
collection.

Under this alternative or combined option, EPA would initially invoice
TSDFs in the first year (or longer period) based on their actual
monthly manifest usage. EPA understands that during the initial period
of the system's operations, there might be too many uncertainties about
manifest usage rates and the numbers of electronic vs. paper manifests
in use to enable the advance payment method to be used with confidence.
However, after more is known about facilities' actual manifest usage,
these concerns could diminish. Therefore, EPA is requesting comment on
an approach to fee collections where after conducting monthly invoicing
for the initial year (or other period) of system operations, the Agency
would then transition users to the use of payment plans enabling
facilities to authorize a debit from a commercial account of a fixed,
monthly advance ACH payment. This alternative is premised on the
assumption that developing a baseline of manifest usage data from a
year or more of invoicing activity would be helpful to projecting
future manifest usage, and that such information would be sufficient to
develop estimated monthly payments under an advance fixed payment
method. As discussed earlier, this option would enable users to take
advantage of a nearly automatic monthly electronic payment that could
be scheduled and debited on the same day each month. Any deviation
between projected and actual usage and fees would be addressed by the
reconciliation process at the end of the year, resulting in an
electronic bill for the amount owed or a credit.
6. Request for Comment
    EPA requests comment on the proposed monthly invoicing approach and
the alternative options (If submitting comments on this issue, please
use comment header: 12. Payment Options). Do commenters agree that a
monthly invoicing approach based on actual manifest usage is preferred
to the other options, even though it may entail additional
administrative effort and cost to implement? If there are concerns with
the proposed approach, what are those concerns, and what payment
option(s) would commenters prefer to the proposed approach?
    With respect to the advance monthly fixed payment option, EPA
requests comments on the perceived advantages and drawbacks of this
option. Is there sufficient attractiveness to users in being able to
make a nearly automatic monthly payment rather than having to respond
to an invoice? Are the TSDF receiving facilities able and willing to
authorize automatic ACH debits, e.g., on the 1st of each month, from
their commercial bank accounts to cover a fixed, monthly e-Manifest fee
payment? Are the differential costs and savings from using advance
monthly payments sufficient as an incentive to encourage their use?
What other features or incentives could be included in this payment
approach to make it more agreeable to users? What risks might this
payment method pose to users if implemented?
    With respect to the alternative or combined option, EPA requests
comment on the merits of a transition to advance payments after an
initial period of experience with monthly invoicing. The Agency asks
also for comments whether the one year timeframe discussed previously
would provide adequate time for TSDF users to develop a reliable
baseline of manifest usage. Is there some other timeframe that would be
more suitable to support the transition to advance monthly ACH
payments? If comments should disclose significant support for advance
monthly payments, and there are cost savings under this approach,
should EPA promote or require the transition from invoicing to advance
payments?
    If EPA were to decide in the final rule to offer both an advance
monthly payment option and an option with monthly invoicing or
reimbursement for services, should EPA impose a differential fee or
premium fee reflecting the different administrative cost of processing
payments under the two approaches? The Agency solicits comment on these
matters.

G. How will EPA address user fee disputes?

    EPA recognizes that over the course of invoicing many facilities
for their manifest fee obligations, errors may occasionally be made,
and such errors may give rise to disputes concerning the amount of a
user fee payment that is due in response to an invoice. In this regard,
EPA emphasizes that the fee disputes relevant to this discussion are
instances in which a facility questions the amount of an invoice
because of an error in applying the fee formula to the facility's
reported manifest activities. These disputes are not related to
questions about the fee formula itself, or the underlying methodology
EPA is proposing in this notice to determine the fee levels that apply
to manifest related transactions. There are regulatory or judicial
processes available for participating in or challenging such regulatory
decisions. In addition, the Agency will conduct regular meetings with
the e-Manifest Advisory Board to discuss any concerns with the fee
setting process, the program's fee levels, and the financial reports of
the system's revenue collection and expenditure activities.
    Therefore, the issues that EPA considers to qualify as fee disputes
for purposes of this discussion are those that arise when a facility's
monthly invoice presents the facility with a fee amount that the
facility challenges, because the invoice does not accurately describe
the numbers of manifests submitted in the prior billing period, because
the invoice does not accurately describe the types of manifests (paper
types vs. electronic) submitted by the facility in the prior billing
period, or, because the invoice appears to have made a mathematical
error in generating the amount of fees due under the invoice.
    EPA 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 believes will be sufficient and less burdensome than a
formal process.
    EPA will post on the e-Manifest Web site a phone number and an
email address where users may take up any questions they may have about
the accuracy of a monthly user fee invoice. Whether a fee dispute claim
is asserted over the phone, or by email, EPA expects the facility to
provide sufficient information to support its claim that an invoice is
in error. At a minimum, EPA expects that fee dispute claimants will
provide the following information to the system's billing
representatives:
     The claimant's name, the facility where the claimant is
employed, the EPA Identification Number of the affected facility, the
date and/or other information to identify the particular invoice that
is the subject of the dispute, and a phone number or email address
where the claimant can be contacted;
     Sufficient supporting information or calculations to
identify the nature and amount of the fee dispute, including:
    [cir] Whether the error results from the types of manifests
submitted being inaccurately described in the invoice,
    [cir] Whether the error results from the number of manifests
submitted being inaccurately described in the invoice,
    [cir] Whether the error results from a mathematical error made in
calculating the amount of the invoice, or
    [cir] Other information described by the claimant that explains why
the invoiced amount is in error and what the fee amount invoiced should
be if corrected.

    EPA's system billing representatives will be expected to respond to
all such billing disputes within ten days of receipt of a claim. In
their response, the system's billing representative will indicate
whether the claim is accepted or rejected, and if accepted, the
response will indicate the amount of any fee adjustment that will be
refunded or credited to the facility. If the claimant is not satisfied
with the response of the EPA system's billing representative, the
claimant may appeal its claim to the Office Director for the Office of
Resource Conservation and Recovery.
    EPA further emphasizes that the assertion of a fee dispute claim
through this informal process does not excuse the requirement to make
timely electronic payments of the invoiced fee amounts. Fee adjustments
will be handled as refunds or credits of amounts paid, and the
existence of a claim does not justify withholding payment of invoiced
fees.
    Finally, EPA is clarifying that once a claim has been addressed by
the Agency under this informal dispute resolution and appeal process,
the resolution that is reached after appeal to the Office Director
concludes the matter and is non-reviewable by any other Agency official
or in any other Agency proceeding.
    EPA requests comment on the proposed informal dispute resolution
process (If submitting comments on this issue, please use comment
header: 13. Fee Dispute Resolution).

H. How does the Proposed Rule address fee sanctions?

1. Background
    In this section of the proposed rule preamble, EPA discusses the
sanctions that will be included in the e-Manifest fee program to induce
manifest users to pay their fee obligations promptly. Particularly
because e-Manifest fees may be collected as accounts receivable or as
reimbursement for manifest services provided, it is important that the
fee program include a set of credible and significant sanctions, so
that delinquent payments will be discouraged. Otherwise, if delinquency
or non-payments were to be commonplace,\20\ the e-Manifest fee program
would become vulnerable to revenue instability. Such instability would
quickly jeopardize our ability to operate the e-Manifest system on a
self-sustaining basis and to meet our user fee and financial
obligations.
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    \20\ EPA expects that most RCRA TSDFs will in fact stay current
with their e-Manifest fee obligations, and that delinquent or non-
payment issues involving the user community will be relatively rare.
Nevertheless, the Agency must be prudent and develop the necessary
sanction tools that will provide it with the remedies to ensure the
credibility of the e-Manifest fee program.
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    EPA finds relevant to this topic this additional federal user fee
design guidance from the GAO that speaks to the need for fee payment
sanctions as a necessary means to promote revenue stability in user fee
programs.\21\ In a section of this September 2013 report addressing
remittance compliance, the GAO noted that penalties and other tools may
be necessary to ensure timely fee remittance. GAO provided examples
that included interest charges and denial of agency services.\22\ In
addition, in another report reviewing the U.S. Customs and Border
Protection's (CBP's) international air passenger inspection program,
the GAO observed that agencies should develop fee remittance sanctions
that are ``strong enough to deter unwanted behavior, but not so severe
that they cannot practically be imposed.'' \23\ Thus, drawing from the
experience and guidance reported by the GAO, the challenge for the
Agency in proposing e-Manifest user fee sanctions is to propose a mix
of sanctions which are strong enough to ensure prompt payment of fees
and revenue stability, while avoiding sanctions that are so severe that
they are unlikely to be imposed and are thus perceived as not credible
by manifest users.
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    \21\ U. S. Government Accountability Office, Federal User Fees,
Fee Design Options and Implications for Managing Revenue
Instability, pp. 28-29, September 2013.
    \22\ The examples cited in this section by GAO included denial
of landing rights to airlines by Customs and Border Patrol (CBP) for
non- or late payments of international air passenger inspection
fees, and withholding Federal Communications Commission action on
licensing proceedings involving delinquent licensees until
arrangements made for payment of fees.
    \23\ GAO-07-1131, Federal User Fees, Key Aspects of
International Air Passenger Inspection Fees Should be Addressed
Regardless of Whether Fees are Consolidated, pp. 32-33, September
2007. GAO noted that the sanction that would deny landing rights to
airlines for delinquent or non-paid fees had only been invoked 4
times in 20 years, suggesting that the sanction was perceived as too
severe to be credible.
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2. What fee payment sanctions are being proposed by EPA?
    For the purpose of ensuring timely payment of e-Manifest user fees,
EPA is proposing a mix of financial, publication, and RCRA enforcement
sanctions, and requesting comment on denial of services and the
suspension of a facility's authority to receive wastes as other
possible sanctions. Our aim in announcing these proposed sanctions is
to develop a plausible mix of available sanctions that can be scaled to
the degree of the offense caused by delinquency or non-payment. That
is, we intend to develop sanctions that will ratchet up in their
severity based on the degree and duration of the delinquency.
    a. Financial Claims Collection Penalties. There are financial
penalties that will apply to delinquent e-Manifest fee payments, under
the authority included in existing federal claims collection statutes.
Under 31 U.S.C. 3717, there are included interest and additional
financial penalties that may be imposed on outstanding or delinquent
debts arising under a claim owed by a person to the U.S. Government.
Specifically, under 31 U.S.C. 3717(a)(1), agencies shall charge a
minimum annual rate of interest equal to the average investment rate
for Treasury tax and loan accounts for the 12-month period ending
September 30th of each year, rounded to the nearest whole percent.\24\
Under EPA's implementing Policy Number 2540-9-P2, accounts are
considered delinquent when EPA does not receive payment by the due date
specified on a bill or invoice. EPA expects and is proposing that the
due date for e-Manifest fee payments would be 30 days from the date of
invoicing. EPA is proposing that its e-Manifest fee sanctions will cite
to this federal claims interest charge authority as the first tier of
e-Manifest fee payment sanctions.
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    \24\ This rate of interest is known as the Current Value of
Funds Rate or CVFR, and is published prior to November 30th of each
year by Treasury. At the time this notice was written in 2016, the
rate was set at 1.00%.
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    Second, under 31 U.S.C. 3717(e), authority is provided to agencies
to collect an additional penalty charge of not more than 6% per year
for failure to pay any part of a debt more than 90 days past due, as
well as additional charge to cover the cost of processing delinquent
claims. Under Policy Number 2540-9-P2, the EPA Finance Centers are
responsible for issuing demand notices and conducting collection
efforts for the Agency. The EPA Finance Centers will assess interest,
handling, and penalty charges in 30 day increments for late payments,
and will assess the 6% penalty with the 3rd demand letter or
notice.\25\
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    \25\ Under EPA policy, claims that are 150 days delinquent are
referred to the Agency's Cincinnati Claims Officer, who can refer
these debts to Treasury for further collection.
---------------------------------------------------------------------------

    EPA therefore proposes to include this additional 6% financial
penalty charge for e-Manifest user fee debts that are more than 90 days
past due. This would be the second tier of sanction authority under
this proposal's set of fee payment sanctions, and would be implemented
if the first tier of interest

charges (assessed for fees 30 days past due) is not effective in
causing a delinquent fee payer to make their payments current.
    The Agency requests comment on the proposal to incorporate the
financial interest and penalty charges set out in the previously
referenced Federal claims collection statutes as the first and second
tier of e-Manifest fee payment sanctions (If submitting comments on
this issue, please use comment header: 14. Financial Sanctions).
    b. Publication of a Delinquent Payor's List. As the third tier of
proposed fee payment sanctions, this action would include a list or
registry of payors whose user fee payments remain delinquent even after
the imposition of financial penalties and opportunities to cure the
delinquency. Consistent with the policy of ratcheting sanctions, EPA
proposes that facilities would become eligible for inclusion in the
list of delinquent fee payors when the period of their delinquency
extends to 120 days or greater. EPA believes that the negative
publicity of being included on such a list would motivate payors to pay
their fees promptly. Under this proposal, the List of Delinquent Payors
would be maintained by EPA at its e-Manifest program Web site. The
listing would indicate the name of the delinquent facility, its EPA ID
Number, and the amount of the delinquency at the time of the listing.
EPA would remove such facilities from the Delinquent Payor's List once
it has been determined that the delinquency has been cured to the
satisfaction of the Agency.
    EPA requests comment on the inclusion of a Delinquent Payor's List
among the sanctions that would be available to the Agency in the event
of serious, continued delinquency of e-Manifest user fee payments (If
submitting comments on this issue, please use comment header: 15.
Delinquent Payors List). Will the publicity resulting from the
publication of a facility's delinquent payment status be an effective
inducement to pay fees promptly? Is 120 days past due an appropriate
period of time to demarcate the more serious fee delinquencies that
merit this sanction? Are there other measures that should be included
in this sanction that would cause it to be more effective as a possible
sanction?
    c. RCRA Enforcement. This proposed rule defines a fully completed
manifest as one that has been submitted to the system either as an
electronic manifest or in one of its paper submission types, and for
which the assessed fees for submission and/or correction have been paid
when due. EPA contends that if any manifests remain incomplete because
of owed fees, then the facility may be in violation for failure to
fully complete a manifest per proposed Sec.  264.1315(d) and/or Sec.
265.1315(d). EPA could enforce this violation under RCRA section 3008.
The magnitude of fees unpaid, and the duration of their delinquency,
are factors to be considered by enforcement officials in determining an
enforcement response to this proposed regulatory violation. Any
enforcement action taken would be separate from the fee collection
process under 31 U.S.C. 3717, if the enforcement action results in the
payment of a penalty rather than an order demanding the payment of fees
owed to the government.
    d. Denial of Service and Other Sanctions.
    EPA also requests comment on the appropriateness and means by which
EPA could deny access to e-Manifest services to those users who are
exceedingly delinquent in their manifest fee payments (If submitting
comments on this issue, please use comment header: 16. Denial of
Service Sanction). In those instances in which the proposed financial,
publication, and enforcement sanctions do not cure delinquent payments,
is it appropriate at some point for the Agency to mitigate its revenue
losses and cut off e-Manifest services to delinquent fee payors? Should
denial of services extend to access to and submission of electronic
manifests, to submission of paper manifests for processing by the
system, or perhaps to both? Would the ``exceedingly delinquent''
payment behavior warranting such a severe sanction be determined by the
dollar amount of the delinquency, or, by the length of time that
payments remain delinquent? What dollar amounts and time periods for
delinquencies would be appropriate conditions to impose on this type of
sanction? Would a delinquency of 150 days, 180 days, or some other
period of delinquency warrant the imposition of such a sanction? What
types of notice and opportunities to cure should be provided prior to
the imposition of a denial of service sanction? To what extent should
the cutting off of e-Manifest services be combined and announced with
the publication of the list of delinquent payors? The Agency requests
comment on these matters.
    Finally, EPA requests comment on other possible sanctions that
might be considered as we develop our final user fee regulation (If
submitting comments on this issue, please use comment header: 17.
Suspension of Facility Authorization). While the Agency has requested
comment on a denial of e-Manifest services sanction, there are other
sanctions that could be targeted more directly on a delinquent
facility's operations as an authorized facility to receive hazardous
wastes from off-site for management. At what point does the fact of
significant, delinquent payments call into question the ability of the
facility to continue as a viable commercial facility? Is there a
rational connection between non-payment of manifest fees and a
facility's being authorized to continue managing hazardous wastes? If
this is a legitimate concern for this regulation, what administrative
actions should EPA have available to mitigate the harm posed by such
facilities continuing to receive hazardous wastes? Should EPA be able
to suspend or withdraw such facilities' EPA ID numbers, so that they
cannot be listed as designated facilities on others' manifests? Are
there other means by which EPA could prevent such facilities from
receiving wastes from others during the time that they remain
egregiously delinquent in paying their e-Manifest user fees? What
amount or period of delinquency would be the appropriate trigger for
this type of sanction? If a facility wishes to dispute the invoices
presented to it for payment, how should this be done in the context of
the proposed sanctions? What administrative process (i.e., notice,
opportunity for hearing or cure) would need to be followed in
administering such a sanction and any fee dispute process? EPA requests
comment on these issues.

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

A. What is the EPA proposing to change?

    The EPA is proposing to modify its current regulations regarding
transporter changes to shipment routing on the manifest. Specifically,
the EPA is proposing to revise the manifest regulations at 40 CFR
263.21 by revising existing paragraphs (a) and (b) of that section so
that transporters that act as agents of the generator can change en
route the transporters designated on the manifest without prior,
explicit approval from the generator, provided that their contract with
the generator grants them explicit authority to make such routing
changes as agent of the generator. The Agency is limiting this change
to only allow the generator's agent to make changes on the generator's
manifest and to only allow the generator's agent to change a
transporter designated on the manifest, or to add a new transporter,
without

explicitly consulting with and obtaining prior approval from the
generator each time a change occurs. This proposed regulation does not
authorize any broader grant of agency authority to a transporter to act
``on behalf of'' generators with respect to other generator
responsibilities. For example, a transporter cannot assume broad agency
authority to substitute for the generator a different designated
facility or alternate facility, or, for exports, the receiving facility
outside the U.S designated by the generator, without consulting the
generator. Nor could a transporter assume the responsibility to
maintain a generator's manifest records and submit Exception Reports or
resolve discrepancies on behalf of the generator. These are control and
oversight functions that must remain with the generator.
    In addition, this proposed regulatory change with respect to
manifest changes during transport does not grant transporters (acting
as agents for generators) the authority to correct the waste
description data (e.g., quantities, types, shipping names, waste codes)
entered on the manifest. If such changes are necessary, then the
transporter must consult with the generator and revise the manifest
according to the generator's instructions. The EPA recognizes that data
quality could be improved if transporters corrected errors during
transport, but the agency believes that it is inappropriate for
transporters to make such changes, because the generator has already
certified with its signature that the contents of the shipment are
``fully and accurately described.'' Transporters typically have had
ample opportunity to verify the shipment data with the generator at the
time of waste shipment pick-up, and thus should have corrected any
errors in shipment data and descriptions prior to beginning transport.
Further, EPA believes the reexamination of the container contents or
shipping descriptions for accuracy of the shipment data should be
performed by the designated facility, rather than transporters, as they
are responsible by regulation to reconcile and report discrepancies
related to a generator's shipment.
    Finally, this proposed regulation also would not affect EPA's
adoption of DOT's Hazardous Materials rules and policies in the March
2005 Manifest Revisions rule pertaining to ``offerors'' and pre-
transportation functions for hazardous waste shipments. Unlike this
proposed transporter regulation, the offeror language adopted in that
rule applies only to pre-transport functions, such as preparing the
manifest and shipment for the generator. The offeror authority does not
apply to activities that occur during transport. Therefore, a
generator's transport contractor can act on behalf of the generator in
its capacity as offeror for pre-transport functions, and under this
proposed regulation, the generator's transport contractor could modify
the manifest on behalf of the generator during transportation, but only
to modify the transporter designations pursuant to authority granted by
the generator in its contract for this purpose. The transporter granted
such contract authority must note in Item 14 of the manifest that it is
authorized by the generator by contract to designate new or additional
transporters as necessary.

B. Why is EPA proposing changes to 40 CFR 263.21(a) and (b)?

    The EPA's current regulations regarding transporter changes to
shipment routing assumes that the generator alone is responsible for
identification of the complete chain of transportation and must,
therefore, be consulted on and approve of all deviations from the
routing plan (June 26, 1991, EPA letter from Sylvia Lowrance, OSW
Office Director, to Brian Engel; RCRA Hotline Response # 13781, March
1, 1996). In accordance with the current manifest regulations at 40 CFR
263.21(a) and (b), transporters must deliver the entire quantity of
hazardous waste accepted from a generator or transporter to the
designated or alternate facility, the next designated transporter, or
the designated export destination. Transporters who cannot deliver
hazardous waste according to the generator's designation because
emergency conditions prevent delivery must contact the generator to
have them designate another facility or transporter. In each case, the
delivery options are limited to the facilities or transporters
designated on the generator's manifest unless an emergency condition
prevents delivery to the designated facility or the next transporter.
Thus, any changes to the routing plan, including changes to
transporters designated on the manifest, require generator consultation
and approval.
    More recently, however, the transporter industry has argued that
agency authority granted to transporters in contracts with their
generator customers allows them to sign or act ``on behalf of'' and
change the routing for the generator without specific consultation with
the generator on each such change. The transportation industry contends
that transportation efficiency often necessitates such changes,
particularly at transfer facilities, and that the transporters and
brokers have far more expertise than generators in arranging the
logistics of hazardous waste shipments. Thus, from the perspective of
the transporter industry, generators should be allowed to authorize
transporters or brokers, by contract, to fulfill their generator
responsibilities. According to the transporter industry, any
transporter requirement to consult with the generator regarding routing
changes is satisfied when a transporter, acting as agent of the
generator, makes a transporter substitution or addition ``on behalf
of'' the generator pursuant to such a contractual provision.
    In addition, since the enactment of the e-Manifest Act in October
2012, the EPA has conducted several outreach efforts including face-to-
face public meetings with industry stakeholders to ascertain and define
current and future manifest workflow and system requirements to help
facilitate e-Manifest adoption by current paper manifest users once the
system is established and made available for use. Based on
conversations with industry, the EPA has learned that generators rely
very heavily on transporters or brokers to prepare the shipments and
arrange shipment logistics on their behalf. In fact, many generators
have contracts with transporters or brokers, which explicitly authorize
them to:
     Identify potential transporter(s) to carry the waste
shipment;
     Schedule the transportation;
     Assist the generator in completing the manifest;
     Ensure that manifest paperwork is properly handled and
distributed during and after transportation;
     Obtain the generator's signature on the manifest or sign
it as the offeror or on behalf of the generator; and
     Assist the generator in the DOT packaging, labeling,
marking requirements.
    Based on these factors, the EPA is proposing to change its
regulations for several reasons. First, we recognize that the current
regulation is inconsistent with what appears to be common industry
practice regarding transporter changes to the routing of a shipment.
The adoption of the 1980 final manifest regulation was based on
prominent pre-RCRA incidents in which transporters and brokers often
acted unscrupulously by diverting hazardous waste shipments to
unauthorized sites involving ``roadside'' or ``midnight'' dumping.
Thus, the 1980 regulation reflected EPA's intent at that time that the
generator should bear primary responsibility for designating the
routing of its waste on the manifest and

for ensuring delivery of its waste to proper waste management
facilities. Since that time, however, EPA further understands that
brokers and transporters, not the hazardous waste generators, typically
have the greater expertise in arranging the logistics and routing of
hazardous waste shipments, and often must make certain transporter
changes for logistical purposes when the shipment is already en route.
Many hazardous waste generators, particularly small quantity
generators, are quite willing to authorize brokers and transporters,
through contracts, to act as their agents to fulfill generators'
manifest requirements. Therefore, EPA is proposing to change its
regulations related to transporter designations on the hazardous waste
manifest during transport to align it more closely with the current
industry practice that enables such changes to be made for
transportation efficiency pursuant to contractual authority granted by
the generator. Proposing this change in regulations would help to
maintain a consistent national position on the manifest, particularly
as the agency continues its efforts to establish the e-Manifest system.
EPA regulations will now more closely reflect industry practice, and
EPA can develop technical requirements for the e-Manifest system that
are consistent with this proposal.
    As a result of the proposal, changes in the description of
transporters could be made: (1) To address an emergency; or (2) to
accommodate transportation convenience or safety, e.g., to allow more
efficient transport from a transfer facility or enable the substitution
of a transporter that is the sub-contractor of the designated
transporter. In addition, as a result of this proposal, a change in
transporter designation on the manifest could be effectuated by: (1) A
consultation with the generator and generator approval of the change;
or (2) a contractual provision authorizing the transporter to make such
a change on behalf of the generator.
    The regulatory changes proposed to effectuate transporter changes
would recognize two distinct classes of transporters involved in such
changes. Proposed Sec.  263.21(b)(2) would apply to those transporters
that lack contractual (agency) authority to act on behalf of the
generator in making any transporter substitutions or additions. For
such transporters, the proposed rule would continue the prior
requirement to consult with the generator and obtain the generator's
explicit approval of the proposed changes in the shipment's routing.
Proposed Sec.  263.21(b)(3) would apply to those transporters that have
contractual authority to act as the agent of the generator with respect
to adding or substituting other transporters while hazardous waste is
in transport. The transporter making such changes must describe its
contractual authorization in Item 14 of each manifest for which such a
change is made. In addition, proposed Sec.  263.21(b)(4) would clarify
that any such grant of authority by a generator to a transporter to act
on the generator's behalf in making changes to transporter designations
does not affect the generator's liability or responsibility for
compliance with the generator requirements of RCRA Subtitle C.
    The existing provisions of Sec.  263.21(a)(1), (2), and (4),
addressing the conditions and process by which a generator must, under
an emergency situation, be consulted on and approve any change to the
designated facility, the alternate designated facility, or the place
outside the United States designated by the generator for delivery of
export shipments, are not altered by these proposed regulatory changes.
    The EPA requests comment on its proposal (If submitting comments on
this issue, please use comment header: 18. Transporter Changes en
Route).

V. Manifest Data Corrections

A. Background

    EPA is including in this action a proposal that would address the
process and requirements by which facilities may make corrections to
manifest data after the delivery of wastes to a facility under the
manifest. At the time of delivery of wastes to a facility by a
hazardous waste transporter, the facility owner or operator signs the
manifest to certify to the receipt of the waste materials shipped under
the manifest, or, to indicate discrepancies. While in many instances,
this may be the last action taken by the receiving facility with
respect to the waste shipment, the Agency is aware that there are other
instances, perhaps involving as many as 20% of received shipments,
where a correction must later be made with respect to the information
shown on a manifest that was previously signed by the receiving
facility.
    In our discussions with industry and state stakeholders, we have
heard that there are many instances where a waste handler
identification number, or a hazardous waste code, is entered
incorrectly or is interpreted incorrectly on account of legibility
issues with the manifests. Such inaccuracies may not be caught by the
waste handlers while the hazardous waste shipment is en route, but may
be flagged by the receiving facility or by state regulators after
delivery when they are keying the manifest data into their data
systems. There should be a process to correct such data in e-Manifest,
so that the appropriate generator sites, transporters, or receiving
facilities are identified with the waste shipment in the companies' and
agencies' data systems.
    There are also a variety of reasons why waste quantity and type
data entered on the manifest might require corrections after the
delivery of hazardous wastes under the manifest. As we have noted
previously, the use of the manifest in practice does not always result
in precision in determining the types and quantities of wastes
received, particularly at the time of delivery by the transporter.
Generators and offerors may provide estimates of quantities of wastes
shipped on the manifest, such as by indicating the shipment of three
drums of a hazardous waste, and indicating the quantity shipped by
using the container capacity as an estimate. Since the piece count
(i.e., number of containers) is accurate, the receiving facility could
sign for the receipt of the containers, and there would not be a
``significant discrepancy'' within the meaning of the manifest
regulations. However, several hours, days, or perhaps weeks after
receipt, the facility may discover on closer inspection that the
containers are only partially filled, and that the actual quantities of
wastes received and managed differs from the generator's estimates.
Similarly, bulk waste shipments may also be shipped under a manifest
showing the quantities estimated by the generator or offeror. However,
after receipt at the facility, it may be determined that the actual
weight or quantity of bulk waste differs from the generator's or
offeror's estimates, but not perhaps at the 10% level or greater that
would trigger a ``significant discrepancy'' that would be required to
be noted on the manifest. Even with respect to waste types,\26\ there
are instances where the types of wastes received may be found to differ
from those indicated as shipped on the manifest by the generator or
offeror, but either were not obvious at the time of receipt, or could
not be determined until well after delivery when the containers were
opened and waste analysis was performed on the container contents by
the facility. These are just several examples illustrating how
inaccuracies in data may arise in connection with the use of the
manifest

in tracking waste shipments and deliveries. However the inaccuracies
arise, the e-Manifest system should provide an orderly process for
effectuating changes to the data in the e-Manifest system post-
delivery.
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    \26\ Instances for which differences in waste types or
significant discrepancies in bulk waste receipts are not discovered
until after delivery may require discrepancy reporting as well. For
purposes of this discussion, we are focusing only on the post-
delivery process for correcting the manifest data that are found to
be inaccurate.
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B. Why is manifest data correction important?

    EPA considers the correction of manifest data to be an important
system objective for a couple reasons: (1) Our state partners need
accurate waste handler and waste receipt data in order to assess
accurate waste management fees from the generators and receiving
facilities that may be subject to such fees in the states; and (2) EPA
needs quality waste receipt information from manifests in order to
comply with the-Manifest Act's mandate that EPA integrate e-Manifest
with waste receipt reporting for the RCRA Biennial Report.
    As regards the state interest in waste management revenues, EPA is
aware that there are about 23 states that currently maintain state-
specific manifest tracking programs. While these manifest tracking
programs are useful for a variety of program management and compliance
monitoring functions, many of these states depend on the data from
hazardous waste manifests to support their assessment of taxes or fees
related to waste management activities in their states. Several of
these states impose taxes or fees on waste generators based on the
amount of hazardous or other state-only regulated wastes that these
entities generate in the states. Additional states with tracking
programs impose such taxes or fees on their receiving facilities based
on the amount of hazardous or other state-only regulated wastes that
they receive for management at facilities within these states. In
either case, the accuracy of these tax or fee assessments is dependent
on the quality of the manifest data available to the state tracking
programs. As e-Manifest will assume manifest collection functions now
performed by these states, with EPA sharing the data collected by e-
Manifest with these states, EPA believes it has a responsibility to the
states and industry submitters to ensure that the system retains data
of sufficient quality to support this function. The e-Manifest Act, in
section 2(e)(3), states that a primary measure of a successful e-
Manifest system is the development of a system that ``meets the needs
of the user community, including States that rely on data contained in
manifests.''
    As regards the EPA's interest in the Biennial Report, EPA's efforts
here are governed by section 2(e)(3)(iv) of the Act, which states that
an additional measure of a successful e-Manifest effort is the
development of a system that ``provides the waste receipt data
applicable to the biennial reports required by [RCRA] section
3002(a)(6).''
    Manifests are by their nature records of off-site shipments of
wastes and their receipts at authorized receiving facilities. Thus,
manifest data are a good starting point for any effort to determine
biennially what waste types and quantities were received at particular
waste management facilities for disposition. The manifest collects for
each off-site shipment the information on the quantities and types of
wastes shipped, information identifying by site ID the particular
generator and receiving facility, and the management method codes
describing the intended management process for each waste. However, as
suggested earlier, there are known issues surrounding the quality of
the data entered on manifests, and these data quality issues touch upon
data related to the accurate identification of generator sites and
receiving facilities, and to the data related to the accuracy of waste
type and quantity information. In scoping out the effort of integrating
e-Manifest and the waste receipt reporting functions of the biennial
report, EPA understands that a fundamental task that must first be
accomplished is an orderly and consistent correction or clean-up
process for the data entered on manifests. The objective of such
manifest data correction must be to produce final data points that have
been sufficiently vetted by the receiving facilities and other
interested persons, so that the receiving facility would be satisfied
with supplying the corrected manifest data as accurate and complete
waste receipt data for biennial reporting purposes.

C. What is EPA proposing for manifest data corrections?

    EPA is proposing that all manifest corrections will be submitted by
facilities (TSDFs) electronically, regardless whether the data
undergoing correction arises from a paper or electronic manifest. Only
the receiving facilities would be permitted to make manifest data
corrections in the e-Manifest system. Such corrections or changes could
be made by the facility on its own initiative after conducting its own
Quality Assurance (QA) activities, or, after notice from another waste
handler, or notice from EPA or a state, of an apparent data quality
issue with one or more manifests.
    Under the approach proposed, facilities would be able to make
corrections on-line directly via the e-Manifest system web-based
application, or, the facilities could make corrections by uploading a
correction submission using a submission format (e.g, XML file)
prescribed by the Agency relating to one or a batch of previously
submitted manifests. For those corrections made directly via the e-
Manifest system web application, EPA would require the person
responsible for the correction to execute a CROMERR-compliant
electronic signature prior to completing their correction submission
(i.e. clicking on the ``submit'' button). Likewise, for those
corrections made through a correction submission relating to one or a
batch of manifests, the submission would include and require the
execution of a CROMERR-compliant electronic signature. The electronic
signatures associated with manifest correction submissions would have
the facility's representative certify, under penalty of law, that to
the best of their knowledge and belief, the corrections that are
included in the submission will cause the manifest data for each
affected waste shipment and receipt to be true, accurate, and complete.
In the case of batch corrections, only one certification need be
executed for all the manifests and corrections involved in the batch
submission.
    The web application or the prescribed format for correction
submissions would collect information from the facility that includes
the Manifest Tracking Number and Date of Facility Receipt of the
original manifest that is being corrected, the Item #s of the original
manifest that are subject to correction, and for each Item # corrected,
the data previously entered and the corresponding data as corrected by
the correction submission. Items from the original manifest that are
not subject to correction should be omitted from the correction
submission, and will be presumed to be unchanged.
    EPA is also proposing that all corrections to manifest data in e-
Manifest must be completed by the date 90 days from the date of receipt
by the facility of the waste shipments recorded on the original
manifest. EPA previously determined in the One Year Rule of February,
2014, that the e-Manifest system would not disclose any manifest data
to the public until 90 days after the date of receipt of manifested
wastes, unless otherwise required by federal law. EPA further explained
that the reason for delaying public disclosure for 90 days was the
Agency's recognition that manifests are frequently corrected after
waste receipts occur, and that EPA considered manifests to be ``in
process'' and excluded from public disclosure until the 90-day window
for dealing

with discrepancies, exceptions, and other corrections had elapsed.
Consistent with this determination, EPA is now proposing that this 90-
day window would be the general deadline for correcting and thus
finalizing manifest data. Thus, after the 90-day window of the One Year
Rule has elapsed, this proposal would clarify that not only would EPA
consider manifest data to be open to disclosure to the public, but also
to be presumptively final and complete data for all regulatory
purposes, including the compilation of waste receipt reports per the
RCRA biennial report.
    Finally, EPA believes that there should be an orderly process in
place for completing all manifest data corrections within the proposed
rule's 90-day window. EPA is proposing that all initial correction
related notices, whether a voluntary correction submission by the TSDF,
or a notice of a data error from another interested person (i.e., other
waste handler, EPA, or a state), must be provided no later than 60 days
from the date of receipt of the wastes shipment under the affected
manifest(s).
    For corrections initiated by the facility, once the initial
correction submission is entered by the TSDF, other waste handlers and
appropriate states would be notified of the facility's corrections, and
these persons would have 15 days to respond to the TSDF's corrections.
If a facility's correction should elicit a response from one or more of
these persons, then the facility must reconcile by day 90 any responses
it receives by either altering the corrected data accordingly, or
affirming the correction as initially made by the facility.
    For corrections initiated on account of notice received by day 60
from another waste handler or from EPA or a state, the facility would
have 15 days to respond to such notice by either entering a correction
submission responding to the notice given, or, by affirming that the
data originally entered is accurate and needs no correction. While
other interested persons, may respond to the TSDF's initial response to
the request for data corrections, the reconciliation of all such
comments and responses must be concluded by the facility by day 90.
    EPA previously indicated that it was proposing a user fee charge
for the Q/A and data key entry effort that necessarily would accompany
the submission of corrections to the system. Since the proposed
approach would rely upon either a direct web application entry of
corrections by the TSDF or an XML-based batch upload of corrected data,
EPA believes that the per manifest fee that would be charged for XML-
based manifest submissions is a fair approximation of the cost and
therefore the appropriate fee to charge for manifest data corrections.
Thus, this fee would be assessed for each manifest affected by a
correction submission, EPA requests comments on the proposed approach
for the submission of manifest data corrections to the system, and the
fees to be assessed for such corrections (If submitting comments on
this issue, please use comment header: 19. Submission of Manifest Data
Corrections).

VI. Mixed Paper and Electronic Manifest Transactions

A. Background

    In the One Year Rule, EPA determined not to allow mixed paper and
electronic manifest transactions. This decision was codified in 40 CFR
262.24(c), which addresses restrictions on the use of electronic
manifests. The final regulation at Sec.  262.24(c) states that a
hazardous waste generator may prepare an electronic manifest for
tracking waste shipments ``only if it is known at the time the manifest
is originated that all waste handlers named on the manifest participate
in the electronic manifest system.''
    In developing the One Year Rule, EPA initially considered allowing
some types of mixed electronic and paper manifests, in the interest of
maximizing the number of manifests that could be executed
electronically, and thereby leveraging additional paperwork burden
reductions. For example, EPA considered an option under which the
generator and receiving TSDF might participate and transmit shipment
data electronically, with perhaps intermediate transporters being
allowed to continue to carry paper forms and execute ink signatures, if
such transporters were not able to participate electronically. However,
after fleshing out further what steps would be required to maintain a
complete log of the custody chain and the entire record of the waste
shipment using mixed manifests, EPA rejected the mixed manifest option.
See 79 FR 7518 at 7549 (February 7, 2014). EPA explained this decision
by observing that there would be too many manual processing steps
required of receiving facilities to maintain a complete record of the
shipment and sustain a mixed process, and that these additional manual
steps (i.e., noting the details of manual signatures on electronic
manifests and merging the electronic and paper manifest data in the
system) would likely overwhelm any paperwork burden reductions that
might otherwise result from using electronic manifests. Id. We also
noted that such mixed electronic and paper manifest transactions could
pose significant enforcement challenges, as the enforceable record
would consist of both paper and electronic components. Id.

B. Discussion

    EPA is reevaluating whether there are instances in which a mixed
electronic and paper manifest might be beneficial, particularly in the
early years of e-Manifest implementation. Such a mixed or ``hybrid''
electronic manifest might be one means to overcome initially the
challenges posed by implementing electronic manifesting at certain
hazardous waste generator sites that lack the means to participate
electronically.
    For a variety of practical and administrative reasons, the use of
electronic manifests by waste generators poses special challenges for
EPA in implementing e-Manifest. First, many waste generators ship small
quantities of wastes, and may ship such wastes infrequently. These
smaller, occasional generators may operate from sites that lack a live
network connection, thus necessitating support for off-line manifest
completion. Moreover, these smaller, occasional generator sites may
find password-based electronic signatures to be particularly
challenging to execute, as they may not only be off-line at the sites
where manifest signatures must be executed, but they may not be able to
recall or locate their passwords or challenge question responses when
they encounter e-Manifest infrequently. Second, as there are tens of
thousands of generator sites within the RCRA universe, and each such
site may employ several individuals with manifest responsibilities,
there will be substantial administrative requirements related to
registering generator personnel as authorized users and signatories,
identity proofing each such generator signatory, supporting CROMERR
copy of record processes that involve individual signatories in
responding to post-signature notifications, and otherwise meeting the
CROMERR electronic reporting standards as they relate to generators.
    After consideration of these challenges at generator sites, EPA is
reevaluating whether the current restriction on mixed electronic and
paper manifests is an appropriate policy for e-Manifest. Our concern is
that the current restriction allows no exceptions,

and could unnecessarily rule out implementation flexibility at sites
where a phase-in of electronic manifesting may be useful.
    For example, EPA is exploring with the user community whether there
may be merit to a mixed paper/electronic manifest option whereby some
generators may choose to complete the initial generator copy of the
manifest as a conventional paper manifest that would be signed in ink
by the generator and the initial transporter. The transporter and
receiving facility would, however, complete the remainder of the
manifest transaction electronically. This ink signed copy could then be
left with the generator as its initial generator copy, such as occurs
under the existing manifest process. The transporter would deliver the
waste to the next transporter or to the designated facility, and at
delivery could present the electronic manifest on its portable device
to the next handler for its electronic signature. Once the TSDF has
signed electronically for waste receipts, the final electronic copy
could then be distributed electronically through the e-Manifest system
to the various waste handlers and to interested state agencies. Thus,
with the exception of the initial copy that is signed in ink and left
at the generator site, the remainder of the transaction would be
executed electronically, and many of the desired efficiencies and
burden reductions from electronic manifesting could still occur across
the remainder of the manifest completion and distribution chain.
    EPA believes the scenario discussed in this example could be
particularly advantageous as an initial or interim phase of e-Manifest
implementation. From our initial planning work on e-Manifest, the
Agency believes that the implementation challenges posed at such
generator sites may be among the most vexing issues to resolve,
particularly with respect to conducting electronic manifesting off-
line, to complying with the CROMERR requirements for user and signatory
registrations, to conducting identity proofing of signatories, to
complying with copy of record processes, and to executing valid
electronic signatures. The suggested hybrid approach might circumvent
these difficult compliance issues for generators by allowing such
generators to execute and retain a paper copy bearing conventional ink
signatures.
    Therefore, EPA is proposing to amend Sec.  262.24 by modifying the
paragraph (c) restriction on mixed electronic and paper manifest
transactions. The proposed modification would leave in place the
general rule that an electronic manifest may be used only when it is
known that all waste handlers may participate electronically, but would
create an exception in proposed Sec.  262.24(c)(1) to authorize the
generator only to sign by hand and retain a paper copy of the manifest
signed by hand by the initial transporter for its records. This
proposal would thus excuse generators from participating
electronically, while still allowing others in the manifest chain of
custody to participate in the electronic manifest. EPA requests comment
on this proposal (If submitting comments on this issue, please use
comment header: 20. Hybrid Approach). Are there other scenarios that
would benefit from flexibility on this issue, in addition to the
example cited here of generator sites and the unique challenges these
sites pose to a fully electronic process? Do commenters agree that the
generator site scenario is a good candidate for a mixed or hybrid
manifest approach? Can such an approach be implemented with simplicity,
avoiding the concerns raised in the One Year Rule that mixed processes
might entail additional manual processing steps that might defeat the
benefits of electronic manifesting? If commenters believe there are
other scenarios that might benefit from a mixed manifest approach,
please explain such scenarios in detail, and discuss in your comments
how the complete chain of custody could be documented and accessed
easily, without the implementation complexities that gave rise to the
ban of mixed manifest processes that we announced in the February 2014
regulation.

VII. The Projected Economic Impacts of the Electronic Manifest

A. Introduction

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

B. Count of RCRA Hazardous Waste Manifests

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

C. Baseline Cost of the Paper Manifest System

    EPA estimated baseline costs for all aspects of the existing paper
manifest system which will be affected by electronic manifests. EPA
estimated six categories of costs accruing to: industrial users of
paper manifests, state governments that collect paper manifests, and
EPA. The six categories of costs are:
     Paper manifest costs accruing to industry for federal
manifests,
     Paper manifest costs accruing to industry for state
manifests,
     EPA burden to process paper manifests,
     State government burden to process paper manifests,
     Industry burden to comply with hazardous waste Biennial
Report requirements, and
     State government burden to comply with hazardous waste
Biennial Report requirements.

In total, discounting at 7% over six years, the annualized baseline
costs of the paper manifest system are estimated

to be $183 million. EPA would appreciate any information to improve the
accuracy of this estimate (If submitting comments on this issue, please
use comment header: 21. RIA).

D. Costs Savings and Other Benefits of Electronic Manifests

    EPA estimated both monetized cost savings and other, non-monetized,
benefits of electronic manifests. Cost savings are the difference
between the pre-rule cost of manifesting and the post-rule cost of
manifesting. They are estimated to accrue to both industrial and state
government users of electronic manifests. Over the six year period of
analysis modeled in the RIA, the annualized post-rule costs of
manifesting were estimated to be $149 million when discounting at 7%.
Since the pre-rule cost of manifesting is estimated to be $183 million,
annualized cost savings from electronic manifests are estimated to be
$34 million.
    EPA expects that electronic manifests will enhance many
stakeholders' ability to track and extract data on waste shipments by
storing and distributing this data in a central, accessible location.
EPA has identified six stakeholder groups that may benefit from better
access to manifest shipping data:
     Members of industry that use the manifest for tracking
waste shipments should know the status of their shipments faster than
under the current paper based system. They should also benefit from the
increased legibility of electronic manifest records compared to current
paper manifests.
     Federal and state government RCRA enforcement officials,
who use manifest data in the course of their investigations of RCRA
compliance should benefit from the centralized storage of manifest data
and the greater accessibility of these data under e-Manifest.
     Emergency responders should benefit from increased access
to data on the generation, shipment, and storage of hazardous wastes in
the event that a spill or other accident involving hazardous waste
occurs.
     Foreign governments of countries that ship hazardous waste
to, or receive hazardous waste from, the U.S. should benefit from the
greater availability of manifest data. They may desire this data for
safety, security, and programmatic reasons similar to those of the U.S.
federal and state governments.
     Research institutions from academia to industry may find
novel uses for manifest data.
     Communities near RCRA facilities will have better
information on the generation, shipment, treatment, storage, and
disposal of hazardous waste near their communities.
    EPA has not attempted to quantify the value of this benefit.

               Summary of Estimated Costs and Cost Savings
            [Annualized and discounted at 7% over six years]
------------------------------------------------------------------------
   Pre-rule costs  ($      Post-rule costs  ($       Cost savings  ($
        million)                 million)                million)
------------------------------------------------------------------------
              183                      149                      34
------------------------------------------------------------------------

VIII. State Implementation

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under section 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
    Prior to the enactment of the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and of the Hazardous Waste Electronic Manifest
Establishment Act, a state with final RCRA authorization administered
its hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
administer the program and issue RCRA permits. When new, more stringent
federal requirements were promulgated, the state was obligated to enact
equivalent authorities within specified time frames. However, the new
federal requirements did not take effect in an authorized state until
the state adopted the federal requirements as state law.
    In contrast, with the adoption of RCRA section 3006(g), which was
added by HSWA, new requirements and prohibitions imposed under the HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by section 3006(g)
to implement HSWA-based requirements and prohibitions in authorized
states until the state is granted authorization to do so. While states
must still adopt HSWA related provisions as state law to retain final
authorization, EPA implements the HSWA provisions in authorized states
until the states do so.
    The e-Manifest Act contains similar authority to HSWA with respect
to federal and state implementation responsibilities in RCRA authorized
states. Section 2(g)(3) of the e-Manifest Act, entitled Administration,
provides that EPA shall carry out regulations promulgated under the Act
in each state unless the state program is fully authorized to carry out
such regulations in lieu of EPA. Also, section 2(g)(2) of the Act
provides that any regulation promulgated by EPA under the e-Manifest
Act shall take effect in each state (under federal authority) on the
same effective date that EPA specifies in its promulgating regulation.
Thus, the result is that regulations promulgated by EPA under the e-
Manifest Act, like HSWA-based regulations, are implemented and enforced
by EPA until the states are authorized to carry them out.
    Authorized states generally are required to modify their programs
when EPA promulgates federal requirements that are more stringent or
broader in scope than existing federal requirements. However, as EPA
explained previously when adopting manifest form revisions to fully
standardize the RCRA manifest, the hazardous waste manifest is not
governed by these requirements. Rather, the RCRA manifest requires
strict consistency in its implementation, so that any EPA changes to
federal manifest requirements must be implemented consistently in the
states, regardless whether the change might be considered more
stringent or broader in scope than existing requirements. See 70 FR
10776 at 10810 (March 4, 2005).
    The proposed e-Manifest user fee requirements in subpart FF of 40
CFR parts 264 and 265 would be promulgated under the authority of the
e-Manifest Act. However, the user fees addressed in this proposed rule
are a uniquely federal requirement that EPA, and not states, must
administer. All e-Manifest system fees are to be paid only to EPA, to
be deposited in the e-Manifest System Fund, from which EPA may spend
such amounts that are appropriated by Congress to offset the system's
development and operation costs. Therefore, states cannot be authorized
to collect and administer these user fees in lieu of EPA.
    Although states cannot receive authorization to administer the
federal government's e-Manifest program user fees, state programs would
still be required to adopt the user fee provisions of this proposed
rule in order to

maintain consistency with the federal program. When a state adopts the
user fee provisions of this proposed rule (if finalized), the state
must not replace federal or EPA references with state references or
terms that would suggest the collection or implementation of these user
fees by the state. Again, the user fee provisions of this proposed
rule, if final, would take effect (under federal authority) in all
states on the effective date announced in the final rule, and would be
administered solely by EPA, and not by the states.
    In addition, this proposed rule includes a conforming change to 40
CFR 271.12, that would clarify that authorized state programs must
include requirements for hazardous waste management facilities to pay
user fees to EPA to recover all costs related to the development and
operation of an electronic hazardous waste manifest system (e-Manifest
system).
    Finally, EPA notes that several authorized state programs operate
manifest tracking programs that collect manifest data from the
manifests that arise in connection with waste generation or waste
receipts at sites within their states. Several of these states assess
their own fees to offset the costs of administering their state
manifest tracking programs, or they may assess waste generation or
management fees to support state programs, based on manifest data in
their state tracking systems. It is likely that some state manifest
tracking programs and related fees may continue for the foreseeable
future. However, it is likely that in the future state tracking
programs will obtain their manifest data from the e-Manifest system,
rather than directly from regulated waste handlers. EPA emphasizes that
the federal user fees that are the subject of this regulation are
solely to offset EPA's costs in developing and operating the e-Manifest
system. It is not the purpose of this regulation to suspend, reduce, or
otherwise impact the existing state fees that support states' manifest
tracking programs or the fees levied by state programs on waste
generation or management. The e-Manifest system is intended to enhance
overall efficiency. As such, state tracking programs will likely rely
on the e-Manifest system to provide the manifest data to support their
program management needs and their waste generation or management fee
collections. EPA is not now in a position to predict what, if any,
impact this federal user fee regulation may have on any such state fee
collection programs.

IX. Statutory and Executive Order Reviews

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

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

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

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the PRA. The Information Collection Request (ICR) document
that the EPA prepared has been assigned EPA ICR number 0801.21. You can
find a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
    This implementation of the e-Manifest and this Fee Rule will impose
new information collection requirements on the regulated community,
although we expect that the net effect will be to significantly reduce
the paperwork burden relative to the paper manifest system. Although
the primary effect of the e-Manifest implementation will be to replace
current paper-based information requirements with electronic-based
requirements to submit or retain the same shipment information, there
could be minor additions or changes to the information collection
requirements, such as information that may be provided to establish
user accounts and fee payment accounts, information submitted for
identity management, as well as waste profile or other information that
may be useful for the creation and submission of electronic manifests.
Additionally, EPA did not update the information collection burden
associated with the regulatory changes to the manifest system announced
in the ``One Year Rule.'' While EPA acknowledged that the adoption of
e-Manifest will change the manner in which information will be
collected and transmitted, the system was not currently available and
consequently the ``One Year Rule'' did not change the information
collected by the hazardous waste manifest, nor the scope of the wastes
that are now subject to manifesting. EPA indicated that it would update
the information collection burden and benefit estimates in this user
fee rule.
    Respondents/affected entities: Private waste handlers.
    Respondent's obligation to respond: Mandatory (RCRA 3002(a)(5)).
    Estimated number of respondents: 56,306.
    Frequency of response: On occasion.
    Total estimated burden: 2,002,841 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
    Total estimated cost: $91,674,429, includes $25,554,370 annualized
capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule (If submitting comments on this issue,
please use comment header: 22. ICR). You may also send your ICR-related
comments to OMB's Office of Information and Regulatory Affairs via
email to<EMAIL_ADDRESS>Attention: Desk Officer for the
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after receipt, OMB must receive comments no
later than August 25, 2016. The EPA will respond to any ICR-related
comments in the final rule.

C. Regulatory Flexibility Analysis

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule.
    The Regulatory Impact Analysis (RIA) conducted for this rulemaking
found that the e-Manifest rule would significantly reduce the
compliance burden associated with manifesting shipments of hazardous
waste. The RIA estimates that in the initial six years

after the e-Manifest system is operational, annualized savings from
manifest related burden reduction would equal approximately $34 million
per year when discounted at 7%. The RIA estimates that these savings
would accrue to firms of all sizes that adopt electronic manifests as
well as to firms that adopt one of the two paper manifest submission
options other than postal mail submissions. The RIA estimates that the
vast majority of manifests will be submitted electronically and
therefore concludes that savings from e-Manifest will accrue to small
and large firms. Because the e-Manifest rule will relieve regulatory
burden for small firms, the RIA concludes it will not have a
significant adverse economic impact on a substantial number of small
entities.
    As a precaution, the RIA also estimates the impacts of the e-
Manifest rule under the unlikely hypothetical scenario in which small
firms do not adopt e-Manifest but instead continue to submit paper
manifests via postal mail. As a consequence, these firms might not
realize any savings from the e-Manifest rule but could instead face
increasing costs from e-Manifest fees. Even under these unlikely and
highly conservative assumptions, the RIA finds that the rule will not
have a significant adverse economic impact on a substantial number of
small entities. The RIA, in particular Section 7.2, describes how EPA
assembled a universe of small entities, how EPA estimated the
hypothetical impacts of the e-Manifest rule under these conservative
assumptions, and the criteria EPA used in this instance to determine
significant adverse economic impacts on a substantial number of small
entities. The RIA is available in the docket for this rulemaking.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132: Federalism

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

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

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

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

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

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

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action is proposing user fees for
use of an electronic system, which will not have a significant effect
on the supply, distribution or use of energy.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

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

List of Subjects

40 CFR Part 262

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

40 CFR Part 263

    Environmental protection, Electronic reporting requirements,
Hazardous materials transportation, Hazardous waste.

40 CFR Part 264

    Environmental protection, Electronic reporting requirements,
Hazardous waste, Packaging and containers, Reporting and recordkeeping
requirements, Security measures, User fees.

40 CFR Part 265

    Environmental protection, Electronic reporting requirements,
Hazardous waste, Packaging and containers, Reporting and recordkeeping
requirements, User fees.

40 CFR Part 271

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

    Dated: June 27, 2016.
Gina McCarthy,
Administrator.

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

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
1. The authority citation for Part 262 is revised to read as follows:

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

0
2. Section 262.24 is amended by revising paragraphs (c) and (g) to read
as follows:

Sec.  262.24  Use of the electronic manifest.

* * * * *
    (c) Restriction on use of electronic manifests. A generator may use
an electronic manifest for the tracking of waste shipments involving
any RCRA hazardous waste only if it is known at the time the manifest
is originated that all waste handlers named on the manifest participate
in the use of the electronic manifest, except that:
    (1) A generator may sign by hand and retain a paper copy of the
manifest signed by hand by the initial transporter, in lieu of
executing the generator copy electronically, thereby enabling the
transporter and subsequent waste handlers to execute the remainder of
the manifest copies electronically.
    (2) [Reserved]
* * * * *
    (g) Imposition of user fee. A generator who is a user of the
electronic manifest may be assessed a user fee by EPA for the
origination of each electronic manifest. EPA shall maintain and update
from time-to-time the current schedule of electronic manifest user
fees, which shall be determined based on current and projected system
costs and level of use of the electronic manifest system.

PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

0
3. The authority citation for Part 263 is revised to read as follows:

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

0
4. Section 263.20 is amended by revising paragraph (a)(8) to read as
follows:

Sec.  263.20  The manifest system.

* * * * *
    (a)(8) Imposition of user fee for electronic manifest use. A
transporter who is a user of the electronic manifest may be assessed a
user fee by EPA for the origination or processing of each electronic
manifest. EPA shall maintain and update from time-to-time the current
schedule of electronic manifest user fees, which shall be determined
based on current and projected system costs and level of use of the
electronic manifest system.
* * * * *
0
5. Revise Sec.  263.21 to read as follows:

Sec.  263.21  Compliance with the manifest.

    (a) Except as provided in paragraph (b) of this section, the
transporter must deliver the entire quantity of hazardous waste which
he or she has accepted from a generator or a transporter to:
    (1) The designated facility listed on the manifest; or
    (2) The alternate designated facility, if the hazardous waste
cannot be delivered to the designated facility because an emergency
prevents delivery; or
    (3) The next designated transporter; or
    (4) The place outside the United States designated by the
generator.
    (b)(1) If the hazardous waste cannot be delivered in accordance
with paragraph (a)(1), (a)(2), or (a)(4) of this section because of an
emergency condition other than rejection of the waste by the designated
facility or alternate designated facility, then the transporter must
contact the generator for further instructions and must revise the
manifest according to the generator's instructions.
    (2) Transporters without agency authority. If the hazardous waste
is not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter is
without contractual authorization from the generator to act as the
generator's agent with respect to transporter additions or
substitutions, then the current transporter must contact the generator
for further instructions prior to making any revisions to the
transporter designations on the manifest. The current transporter may
thereafter make such revisions if:
    (i) The hazardous waste is not delivered in accordance with
paragraph (a)(3) of this section because of an emergency condition; or
    (ii) The current transporter proposes to change the transporter(s)
designated on the manifest by the generator, or to add a new
transporter during transportation, to respond to an emergency, or for
purposes of transportation efficiency, convenience, or safety; and
    (iii) The generator authorizes the revision.
    (3) Transporters with agency authority. If the hazardous waste is
not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter has
authorization from the generator to act as the generator's agent, then
the current transporter may change the transporter(s) designated on the
manifest, or add a new transporter, during transportation without the
generator's prior, explicit approval, provided that:
    (i) The current transporter is authorized by a contractual
provision that provides explicit authority for the transport to make
such changes on behalf of the generator,
    (ii) The transporter describes such authorization in Item 14 of
each manifest for which such a change is made, and
    (iii) The change in designated transporters is necessary to respond
to an emergency, or for purposes of transportation efficiency,
convenience, or safety.
    (4) The grant by a generator of authority to a transporter to act
as the agent of the generator with respect to changes to transporter
designations under paragraph (b)(3) of this section does not affect the
generator's liability or responsibility for complying with any
applicable requirement under this chapter.

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

0
6. The authority citation for Part 264 is revised to read as follows:

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

Subpart E--Manifest System, Recordkeeping, and Reporting

0
7. Section 264.71 is amended by revising paragraph (j) and adding a
paragraph (l) to read as follows:

Sec.  264.71  Use of manifest system.

* * * * *
    (j) Imposition of user fee for electronic manifest use. An owner or
operator who is a user of the electronic manifest format may be
assessed a user fee by EPA for the origination or processing of each
electronic manifest. An owner or operator may also be assessed a user
fee by EPA for the collection and processing of paper manifest copies
that owners or operators must submit to the electronic manifest system
operator under Sec.  264.71(a)(2)(v) of this part. EPA shall maintain
and update from time-to-time the current schedule of electronic
manifest system user fees, which shall be determined based on current
and projected system costs and level of use of the electronic manifest
system.
* * * * *
    (l) Post-receipt manifest data corrections. After facilities have
certified to the receipt of hazardous wastes by signing Item 20 of the
manifest, any post-receipt data corrections must be completed by the
owners or operators of the receiving facilities within 90 days of the
receipt of manifested shipments of hazardous waste.
    (1) Receiving facilities must enter all corrections to manifest
data by

electronic submission, either by directly entering corrected data to a
web based service provided in e-Manifest for such corrections, or by an
upload of a data file (e.g., XML file) containing data corrections
relating to one or more previously submitted manifests.
    (2) Each correction submission must include the following
information:
    (i) The Manifest Tracking Number and date of receipt by the
facility of the original manifest(s) for which data are being
corrected;
    (ii) The Item Number(s) of the original manifest that is the
subject of the submitted correction(s); and
    (iii) For each Item Number with corrected data, the data previously
entered and the corresponding data as corrected by the correction
submission.
    (3) Each correction submission shall include a statement that the
facility representative submitting the corrections certifies, under
penalty of law, that to the best of his or her knowledge or belief, the
corrections that are included in the submission will cause the
information reported about the previously received hazardous wastes to
be true, accurate, and complete.
    (i) The certification statement must be executed with a valid
electronic signature.
    (ii) A batch upload of data corrections may be submitted under one
certification statement.
    (4) Manifest data corrections initiated by the receiving facility
should be initiated by a facility's correction submission no later than
60 days from the date receipt of the hazardous wastes under the
affected manifest(s).
    (i) Upon receipt of the facility's correction submission, other
interested persons (other waste handlers on the manifests, EPA,
appropriate states) will be provided electronic notice of the
facility's proposed corrections.
    (ii) Other interested persons shall have 15 days to respond to the
facility's proposed corrections with any comments or suggested changes.
    (iii) By the date 90 days after receipt of the original manifests
for which data are being corrected, the facility must reconcile any
comments received from other interested persons, and must either alter
its correction submission accordingly, or affirm the accuracy of the
initial correction submission.
    (5) Manifest data corrections may be initiated by notice of a
suspected data error provided to the facility by other interested
persons.
    (i) Any notice of a suspected data error from an interested person
must be provided to the facility by email or other form of electronic
notice no later than the date 60 days after receipt of the original
manifests affected by the suspected errors.
    (ii) If timely notice of suspected data errors is provided to the
facility, the facility shall have 15 days to provide its response to
such notice by either submitting a correction submission with
responsive data corrections, or by affirming that the data originally
submitted are accurate and need no correction.
    (iii) The facility must finally reconcile all notices or comments
regarding data errors and corrections by the date 90 days after receipt
of the affected hazardous waste manifests.
0
8. Subpart FF is added to read as follows:

Subpart FF--Fees for the Electronic Hazardous Waste Manifest
Program

Sec.
264.1300 Applicability.
264.1310 Definitions applicable to this subpart.
264.1311 Manifest transactions subject to fees.
264.1312 User fee calculation methodology.
264.1313 User fee revisions.
264.1314 How to make user fee payments.
264.1315 Sanctions for delinquent payments.

Sec.  264.1300  Applicability.

    (a) This subpart prescribes:
    (1) The methodology by which EPA will determine the user fees which
owners or operators of facilities must pay for activities and manifest
related services provided by EPA through the development and operation
of the electronic hazardous waste manifest system (e-Manifest system);
and
    (2) The process by which EPA will revise e-Manifest system fees and
provide notice of the fee schedule revisions to owners or operators of
facilities.
    (b) The fees determined under this subpart apply to owners or