[Federal Register Volume 81, Number 143 (Tuesday, July 26, 2016)]
[Proposed Rules]
[Pages 49072-49110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15845]



[[Page 49071]]

Vol. 81

Tuesday,

No. 143

July 26, 2016

Part V





Environmental Protection Agency





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40 CFR Parts 262, 263, 264 et al.





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

  Federal Register / Vol. 81 , No. 143 / Tuesday, July 26, 2016 / 
Proposed Rules  

[[Page 49072]]


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ENVIRONMENTAL PROTECTION AGENCY

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

[EPA-HQ-OLEM-2016-0177; FRL-9940-99-OLEM]
RIN 2050-AG80


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) 
proposes its user fee methodology applicable to electronic and paper 
manifests submitted to the national electronic manifest system (or e-
Manifest system) that is being established by EPA under the Hazardous 
Waste Electronic Manifest Establishment Act. After the implementation 
date for the e-Manifest system, certain users of the hazardous waste 
manifest would be required to pay a prescribed fee for each electronic 
and paper manifest they use and submit to the system in order for EPA 
to recover its costs of developing and operating the national e-
Manifest system. The final rule that EPA develops in response to public 
comments on this action's proposed fee methodology will include the 
final fee methodology. In addition, EPA will include the initial fee 
schedule and the implementation date for the e-Manifest system in the 
preamble to the final rule.
    This action also proposes several amendments to the regulations 
governing the use of electronic hazardous waste manifests and the 
completion of manifests. These amendments propose: to change EPA's 
longstanding regulations regarding transporter changes to shipment 
routing information on the manifest during transportation, to specify a 
process by which receiving facilities may submit manifest data 
corrections to the e-Manifest system, and to modify a provision of the 
current electronic manifest use requirements that precludes the use of 
mixed electronic and paper manifests by those users desiring to make 
use of electronic manifests in settings where not all users are able to 
participate electronically. This action is expected to result in net 
cost savings amounting to $34 million per year when discounted at 7% 
and annualized over 6 years. Further information on the economic 
effects of this action can be found in section VII of this preamble.

DATES: Comments must be received on or before September 26, 2016. Under 
the Paperwork Reduction Act (PRA), comments on the information 
collection provisions are best assured of consideration if the Office 
of Management and Budget (OMB) receives a copy of your comments on or 
before August 25, 2016.

ADDRESSES: For this rule, EPA is requesting comments be submitted 
electronically on a comment platform being piloted at https://epa-notice.usa.gov. Alternatively, commenters may choose to submit comments 
by postal mail or electronically through Regulations.gov. For comments 
submitted via postal mail or Regulations.gov, EPA is further requesting 
comments be submitted using comment headings. Please see SUPPLEMENTARY 
INFORMATION, section I.E. (Submitting Comments) for more information on 
the pilot, use of comment headings, and other general instructions for 
submitting comments.

FOR FURTHER INFORMATION CONTACT: For further information regarding 
specific aspects of this document, contact Richard LaShier, Office of 
Resource Conservation and Recovery, (703) 308-8796, 
[email protected], or Bryan Groce, Office of Resource Conservation 
and Recovery, (703) 308-8750, [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    The hazardous waste manifest affects approximately 80,000 federally 
regulated entities and an equal or greater number of entities handling 
state-only regulated wastes in at least 45 industries. These industries 
are involved in shipping off-site, transporting, and receiving several 
million tons \1\ annually of wastes that are hazardous under the 
Resource Conservation and Recovery Act (RCRA) or state-only regulated 
wastes that are subject to the tracking of their movements with the 
RCRA hazardous waste manifest. EPA estimates that these entities 
currently use between 3 and 5 million hazardous waste manifests (EPA 
Form 8700-22) and continuation sheets (EPA Form 8700-22A) to track RCRA 
hazardous and state-only \2\ regulated wastes from generation sites to 
receiving facilities for their management. The affected entities 
include hazardous waste generators, hazardous waste transporters, and 
owners and operators of treatment, storage, and disposal facilities 
(TSDFs), as well as the corresponding entities that handle state-only 
regulated wastes subject to tracking with the RCRA manifest.
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    \1\ The 2011 RCRA Biennial Report discloses that RCRA large 
quantity generators (LQGs) alone shipped about 6.2 million tons of 
waste in 2010. Small quantity generators and state regulated wastes 
subject to manifesting would likely produce several million more 
tons of wastes each year to be tracked with manifests.
    \2\ EPA uses the term ``state-only regulated wastes'' to refer 
to all types of wastes that are required under state law to be 
tracked with the RCRA hazardous waste manifest, though they exceed 
the coverage (i.e., beyond the scope) of the listed and 
characteristic wastes that are regulated federally as RCRA hazardous 
wastes.
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    However, as explained in section III.B.3 of this preamble, this 
proposed rule would primarily affect the several hundred commercial 
TSDFs that receive hazardous and state-only regulated wastes from off-
site for management at their permitted or interim status facilities. 
Under this proposed rule, these commercial TSDFs would be the focal 
point for the payment and collection of the user fees under the 
proposed rule. EPA has tentatively concluded that payment of this 
proposal's user fees by the several hundred commercial TSDFs is the 
most efficient and expedient means for implementing a user fee 
requirement for the national e-Manifest system. Potentially affected 
categories and entities include, but are not necessarily limited to:

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

    This table provides a guide for readers regarding entities likely 
to be regulated by this action. This table lists the types of entities 
that EPA is aware could potentially be regulated by this action. Other 
types of entities not listed in the

[[Page 49073]]

table could also be regulated. To determine whether your entity is 
regulated by this action, you should carefully examine the 
applicability criteria found in title 40 of the Code of Federal 
Regulations (CFR) parts 263, 264, and 265. If you have questions 
regarding the applicability of this action to a particular entity, 
consult the persons listed in the FOR FURTHER INFORMATION CONTACT 
section.

B. What action is the agency taking?

    The EPA is requesting comment on its proposed fee formula and 
methodology for implementing a user fee to recover costs incurred in 
developing, operating, maintaining, and upgrading a national e-Manifest 
system, including any costs incurred in collecting and processing data 
from any paper manifest submitted to the e-Manifest system after the 
date on which the system begins to operate. The EPA is also requesting 
comment on its proposed changes to modify its current regulations 
regarding transporter changes to shipment routing information on the 
manifest during transportation.

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

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

D. What is the scope of this proposed rule?

    This proposed rule addresses several key policy issues related to 
the implementation of user fees to recover and fund the costs of 
developing and operating a national e-Manifest system, including:
    1. Which users of manifests and manifest data will be charged user 
fees?
    2. What will be the transactional basis for assessing user fee 
obligations?
    3. How will users be expected to pay their owed fees?
    4. What model or formula will EPA rely upon for the determination 
of users' fees?
    5. How will the rule address fee trajectory and fee schedule 
revisions?
    6. Which, if any, manifest transactions warrant a fee premium?
    7. What sanctions are being proposed to induce prompt payment of 
user fees?
    8. How will EPA conduct the financial tracking and reporting 
functions essential to the proper calculation and determination of fees 
and to the oversight of the e-Manifest fee program?
    In addition, the proposed rule addresses several regulatory 
amendments related to the use of electronic manifests and the 
completion of manifests. These additional regulatory proposals are not 
user fee related, and address these issues: (1) A proposal that would 
allow certain changes to the routing of a hazardous waste shipment 
indicated on the manifest, while the shipment is in transportation; (2) 
a proposal that would allow hazardous waste receiving facilities to 
make corrections electronically to previously submitted manifest data; 
and (3) a proposal that would allow a manifest user, in certain 
instances, to execute and use a hazardous waste manifest that combines 
the use of a paper manifest with the use of an electronic manifest.

E. Submitting Comments

1. Notice and Comment Pilot
    EPA partnered with the General Services Administration's 18F Team 
to pilot a platform for submitting comments on this rule. The new 
platform is designed to assist readers in understanding the rule and 
proposed regulatory changes, as well as to assist EPA in collecting 
structured comments. EPA is requesting commenters to use the new 
comment platform, which can be found at https://epa-notice.usa.gov. The 
pilot comment platform is a federal application supporting the EPA in 
its rulemaking process. Comments filed through the pilot comment 
platform are filed to the official docket for this rule. EPA will 
process comments submitted through the pilot using the same rules and 
restrictions (https://www.epa.gov/dockets/commenting-epa-dockets#rules) 
that apply to comments received from any other method. If a comment 
meets the aforementioned requirements, then the comment will be 
publically posted to Regulations.gov. Commenters, that use the pilot to 
submit comments, do not need to submit duplicative comments through 
another method (e.g., Regulations.gov or postal mail).
    The use of the pilot comment platform is optional; Commenters may 
still choose to submit comments by postal mail or electronically 
through Regulations.gov.
2. Comment Headings
    For comments not submitted through the pilot comment platform, and 
instead submitted via postal mail or Regulations.gov, EPA is requesting 
commenters to identify their comments on specific issues by using the 
appropriate number and comment heading listed below. If your comment 
covers multiple issues, please use all the heading numbers and names 
that relate to that comment. As an example of this optional method, 
where one individual comment relates to issue #1 and a second 
individual comment pertains to issues #2 and #3, a set of comments 
would be submitted as follows, where the number and comment headings 
are underlined:

1. Data Access Services
Your comment here. . .
2. Billable Event; 3. Fee Methodology
Your comment here. . .

    The list below also contains the proposed rule section numbers with 
which you can find more information on each issue. Similarly, 
throughout the proposed rule, parentheticals in italics have been added 
to identify the heading number and name to be used when commenting on 
the specific issues. The description following each comment heading 
summarizes the individual issues. More detailed descriptions of the 
issues and issue-specific questions can be found in the indicated 
sections of the rule.
    Although submission of your comments using the aforementioned 
format is not required at this time, it is encouraged so as to not only 
assist the Agency in efficiently and effectively considering and 
responding to comments received, but also provide commenters more 
effective means of informing environmental decision making.
Comment Headings
    1. Data Access Services--EPA requests comment on the proposal for 
TSDF user fees to cover cost of public data access services. (See 
Section III.A.2)
    2. Billable Event--EPA requests comment on the proposal to use the 
final manifest submission by the TSDFs as the billable event for 
purposes of assessing user fees. (Section III.B.3)
    3. Fee Methodology--EPA requests comment on the proposed fee 
formula, alternative fee formulas, transition period for application of 
different formulas, amortization period for costs, possible omitted 
costs, incentivizing material management behavior through the fee 
methodology, and other fee formula related issues. (Section III.C.6)
    4. Disallow Postal Mailed Manifests--EPA requests comment on 
another approach under which TSDFs would be

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restricted to submitting their paper manifest data to EPA by electronic 
means only, that is, by uploading image files to EPA, or by uploading a 
data file (e.g., XML file) of manifest data accompanied by an image 
file. (Section III.C.6)
    5. Inflation Adjuster--EPA requests comment on the proposal for an 
inflation adjustment factor predicated on the use of the CPI-U, for all 
items, not seasonally adjusted, as a sufficiently representative 
inflationary index and a means to adjust e-Manifest user fees for 
inflation between the first year and second year of the two-year fee 
schedules. (Section III.D.3.a and Section III.D.4)
    6. Revenue Recovery Adjuster--EPA is requesting comment on the 
inclusion of a revenue recovery adjuster in the proposed fee trajectory 
methodology and on the emphasis on inflation, manifest usage estimates, 
and uncollectable manifests as the key sources of revenue instability 
that the adjusters should address in the trajectory methodology. 
(Section III.D.3.b and Section III.D.4)
    7. Two-Year Fee Schedule Revision Cycle--EPA is requesting comment 
on the proposed two-year fee schedule revision cycle. (Section III.D.4)
    8. 90-Day Lead Time for Fee Schedule Changes--EPA is requesting 
comment on the proposal to have EPA publish the fee schedule changes to 
the e-Manifest Web site 90 days prior to the effective date of fee 
schedule changes. (Section III.D.4)
    9. Stray and Extraneous Documents--EPA is requesting comment on 
proposed fee premiums for processing stray and extraneous documents. 
(Section III.E.2.a.v)
    10. Paper Manifest Corrections--EPA is requesting comment on 
proposed fee premiums for processing a correction to a paper manifest. 
(Section III.E.2.a.vi)
    11. Incentivize Electronic Manifest Use--EPA is requesting comment 
on a 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. (Section III.E.2.a.vii)
    12. Payment Options--EPA requests comment on the proposed monthly 
invoicing approach and the alternative options. (Section III.F.6)
    13. Fee Dispute Resolution--EPA requests comment on the proposed 
informal fee dispute resolution and appeals process. (Section III.G)
    14. Financial Sanctions--EPA requests comment on the proposal to 
incorporate the financial interest and penalty charges set out in the 
Federal claims collection statutes as the first and second tier of e-
Manifest fee payment sanctions. (Section III.H.2.a)
    15. Delinquent Payors List--EPA requests comment on the inclusion 
of a Delinquent Payors List among the sanctions that would be available 
to the Agency in the event of serious, continued delinquency of e-
Manifest user fee payments. (Section III.H.2.b)
    16. Denial of Service Sanction--EPA 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. (Section III.H.2.d)
    17. Suspension of Facility Authorization--EPA requests comment on 
possible authorization sanctions on facilities that are delinquent on 
e-Manifest payments. (Section III.H.2.d)
    18. Changing Transporters en Route--EPA requests comment on the 
proposal to modify its current regulations regarding transporter 
changes to shipment routing on the manifest. (Section IV.B)
    19. Submission of Manifest Data Corrections--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. (Section V.C)
    20. Hybrid Approach--EPA requests comment on the proposal for mixed 
paper and electronic manifest transactions. (Section VI.B)
    21. RIA--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. (Section VII.C)
    22. ICR--EPA requests comments on the Agency's need for information 
under ICR 0801.21, the accuracy of the provided burden estimates and 
any suggested methods for minimizing respondent burden to the EPA. 
NOTE: You may also send your ICR-related comments to OMB's Office of 
Information and Regulatory Affairs via email to 
[email protected], 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 30 days 
after publication in the Federal Register. (Section IX.B)
    23. OTHER--any comments not falling under one of the preceding 
categories should be identified using `OTHER' as the comment header.
3. General Information for Submitting Comments
    Comments submitted through Regulations.gov (at http://www.regulations.gov) or submitted by postal mail should be identified 
by Docket ID No. EPA-HQ-OLEM-2016-0177. For comments submitted through 
Regulations.gov, follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or removed from 
Regulations.gov. The EPA may publish any comment received to its public 
docket. Do not submit electronically any information you consider to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Multimedia submissions (audio, 
video, etc.) must be accompanied by a written comment. The written 
comment is considered the official comment and should include 
discussion of all points you wish to make. For the full EPA public 
comment policy, information about CBI or multimedia submissions, and 
general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    Please note the Agency will not accept comments submitted via email 
or fax.

II. Background

A. Enactment of Electronic Manifest Legislation

    In 2012, Congress enacted the Hazardous Waste Electronic Manifest 
Establishment Act, Public Law 112-195 (hereafter, the e-Manifest Act or 
Act). The goal of this legislation was to provide the users of the 
hazardous waste manifest with a much more efficient and modern option 
to the 6-copy paper manifest forms that have been used for more than 30 
years to track hazardous waste shipments from ``cradle-to-grave.'' The 
e-Manifest Act directed EPA to establish a national electronic manifest 
system that would enable users, at their option, to obtain and submit 
electronic manifests to track waste shipments involving either RCRA 
hazardous wastes or certain state-only regulated wastes subject to 
manifesting requirements under federal or state law. It was the intent 
of the Act that a data repository would be established within the e-
Manifest system, and that this national data repository would collect 
and retain waste shipment data from the electronic manifests obtained 
from the system, as well as from processing the data from any paper 
manifests that continued in use after the deployment of the e-Manifest 
system.

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    Of particular significance to this proposed rule are the funding 
provisions of the e-Manifest Act. While section 2(i) of the Act 
authorized Congress to appropriate funds to cover start-up activities 
and costs, Congress intended that the e-Manifest system would 
ultimately be self-sustaining once deployed. Under section 2(c) of the 
Act, EPA was authorized to impose and collect reasonable service fees 
(user fees) necessary to pay the costs of developing, operating, 
maintaining, and upgrading the e-Manifest system, including any costs 
incurred in collecting and processing paper manifests submitted to the 
system. Section 2(d) of the Act further authorized the establishment of 
a special System Fund in the U.S. Treasury for the deposit of collected 
service fees. By the terms of sections 2(d)(2) and 2(c)(4) of the Act, 
funds deposited in the System Fund could be transferred from Treasury 
to EPA at the Administrator's request and spent for system related 
costs to the extent of and in the amount provided in advance in 
appropriations Acts. The fees collected and deposited in the System 
Fund would be used to fund the system's operating costs and other 
system related costs, as well as to offset any appropriated funds 
authorized under section 2(i) of the Act to seed the start-up 
activities and system development costs.
    In particular, section 2(c) of the Act confers broad discretion to 
EPA to determine the user fees to be imposed on users of the system. 
This provision states that EPA ``may impose on users such reasonable 
service fees as the Administrator determines to be necessary to pay 
costs in developing, operating, maintaining, and upgrading the system, 
including any costs incurred in collecting and processing data from any 
paper manifest submitted to the system after the date on which the 
system enters operation'' (emphasis supplied).
    On the issue of timing of fee collections, section 2(c)(2)(A) of 
the Act provides EPA discretion to collect fees from users either in 
advance of services being provided, or, as reimbursement for the 
provision of system-related services by EPA.
    The user fee provisions of the Act further speak to the matter of 
fee adjustments. Under section 2(c)(3)(B) of the Act, EPA shall, in 
consultation with the Board,\3\ increase or decrease the amounts of the 
fees so that the amounts collected and aggregated in the System Fund 
are sufficient (and not more than reasonably necessary) to cover 
current and projected system costs, including necessary upgrades. 
Moreover, the fees should be maintained at levels that minimize, to the 
maximum extent practicable, the accumulation of unused amounts \4\ in 
the Fund. Where the timing of fee adjustments is concerned, section 
2(c)(3)(B)(iii) of the Act specifies that the fee schedule shall be 
adjusted initially when start-up costs have been recovered, and 
periodically thereafter, whenever an annual audit report on the 
system's finances discloses a significant disparity between fees 
collected in a fiscal year, and expenditures made for system related 
services during that fiscal year.
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    \3\ ``Board'' refers to the e-Manifest System Advisory Board, a 
9-person Federal Advisory Committee of stakeholders that EPA must 
establish pursuant to the Federal Advisory Committee Act to advise 
EPA on the effectiveness of the system, to consult with EPA on 
service fee adjustments, and to make recommendations relating to the 
system.
    \4\ The Act provides an exception whereby a revenue surplus not 
exceeding $2 million may be accumulated in the Fund over the initial 
3-year period of system operations.
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B. Issuance of First e-Manifest Regulation in February 2014

    In response to the e-Manifest Act's mandate \5\ to issue 
regulations authorizing electronic manifests within one year of 
enactment of the statute, EPA issued its first final regulation 
pertaining to e-Manifest on February 7, 2014 (79 FR 7518-7563). Because 
of the mandate to issue this final regulation within one year of the 
statute, EPA refers to this regulation as the e-Manifest One Year Rule.
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    \5\ This mandate appears in section 2(g)(1)(A) of the Act, which 
directs EPA to promulgate final regulations to carry out the Act 
within one year of enactment of the Act, after consultation with the 
Secretary of Transportation. EPA consults regularly with the 
Department of Transportation (DOT) on its manifest requirements and 
other transportation related actions, since the manifest is a 
shipping paper that is grounded on the joint authority of RCRA Sec.  
3002(a)(5) and DOT's hazardous materials regulations or HMRs.
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    The purposes of the One Year Rule were to codify key provisions of 
the Act touching upon the scope of users and manifests eligible to 
participate in e-Manifest, to codify the provisions of the Act 
requiring consistent implementation of electronic manifests in all the 
states, to finalize EPA's decision to establish a national electronic 
hazardous waste manifest system, and to announce policy decisions 
related to using and implementing electronic manifests. Fundamentally, 
the One Year Rule provides clarity with respect to the validity of 
electronic manifests. The Rule explains that the electronic manifest 
format obtained from and supported by the national e-Manifest system 
shall be the one electronic manifest format authorized for national 
use, that electronic manifests obtained from and submitted to the e-
Manifest system in accordance with the One Year Rule are the legal 
equivalent to paper manifests in all relevant respects, and that all 
authorized states must respect the validity of the national electronic 
manifest and revise their authorized programs to allow the use of 
electronic manifests. The One Year Rule also clarified that manifest 
data could not be subject to confidential business information claims 
or protections, and explained how e-Manifest and the recommended 
electronic signature methods discussed in the Rule's preamble would 
comply with EPA's electronic reporting policies as articulated in the 
Agency's Cross Media Electronic Reporting Rule or CROMERR (70 FR 59848, 
October 13, 2005). Thus, the One Year Rule announced the legal and 
policy framework governing the authorization and use of electronic 
hazardous waste manifests within EPA's national e-Manifest system.
    While the One Year Rule addressed fundamental scope and policy 
issues related to the use of electronic manifests, it did not speak to 
user fees to any significant extent. When developing the One Year Rule, 
EPA realized it would not be in a position to determine in that rule's 
timeframe all the various components of the e-Manifest information 
technology system and their costs, and thus would not be able to 
determine the program's initial schedule of user fees as a part of the 
One Year Rule. Moreover, the issues raised and determined in the One 
Year Rule had been noticed for public comment in previous proposals and 
regulatory notices, while the content of the Fee Rule had not yet been 
scoped out and noticed for public comment. Therefore, EPA concluded 
that the development of an e-Manifest user fee methodology and fee 
schedules would be undertaken as a separate rulemaking. This proposed 
rule is thus the means by which EPA will solicit comment from the 
public on our proposed Fee Rule methodology, suggest the likely range 
of fees that will result, identify our economic models and assumptions, 
and propose for comment the related scope and other policy issues 
related to determining and collecting e-Manifest user fees.

C. Federal User Fee Design Guidance

    The development of this action was influenced greatly by two 
federal guidance documents that apply to user fee design and 
implementation by executive department agencies. They

[[Page 49076]]

are: (1) OMB Circular A-25, a Memorandum for Heads of Executive 
Departments and Establishments addressing the subject of ``User 
Charges,'' and (2) the United States Government Accountability Office 
(GAO) Report No. GAO-08-386SP, Federal User Fees, A Design Guide, (May 
2008).
1. OMB Circular A-25
    The purpose of Circular A-25 is to establish federal policy 
regarding user charges or fees assessed for government services under 
the Independent Offices Appropriations Act or IOAA, 31 U.S.C. 9701, and 
31 U.S.C. 1111. It explains for executive agencies the scope and type 
of activities subject to user charges and the basis on which user 
charges should be set. It also provides guidance for agencies on the 
implementation of user charges or fees and on the disposition of fee 
collections. The guidance presented in Circular A-25 applies to user 
fees implemented generally under the IOAA, as well as to 
implementations of user fees that are governed specifically by a 
statute, such as the e-Manifest Act, to the extent that Circular A-25 
is not inconsistent with the e-Manifest Act.
    The Circular A-25 guidance that is most relevant to this action 
includes the following points:
     User charges should be assessed against identifiable 
recipients that receive special benefits derived from federal 
activities beyond those received by the general public.
     When the provision of special benefits to identifiable 
recipients also results in an incidental benefit to the general public, 
an agency need not allocate any costs to the public and should seek to 
recover the cost of providing the services from the identifiable 
recipients of special benefits.
     User charges should be set so as to recover the ``full 
cost'' to the Federal Government of providing the good or service, 
where ``full cost'' includes all direct and indirect costs to any part 
of the government of providing the good or service.
     The relevant direct and indirect costs to be recovered by 
user charges include, but are not limited to, an appropriate share of:
    [cir] Direct and indirect personnel costs, including salaries and 
fringe benefits such as medical insurance and retirement costs,
    [cir] Physical overhead, consulting, and other indirect costs 
including material and supply costs, utilities, travel, and rents or 
imputed rents on land, buildings, and equipment,
    [cir] Management and supervisory costs, and
    [cir] Costs of enforcement, collection, research, establishment of 
standards and regulations, including environmental impact statements.
     It is general policy that user charges will be instituted 
through the promulgation of regulations.
     In their implementation of user charges, agencies should:
    [cir] Review all sources of statutory authority, in addition to the 
IOAA, that may authorize the implementation of user charges; \6\
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    \6\ The e-Manifest Act clearly authorizes user charges, and the 
Act's provisions on user fees must be accommodated with Circular A-
25 policies.
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    [cir] Make every effort to keep the costs of collection to a 
minimum;
    [cir] Initiate and adopt user charge schedules consistent with the 
policies of the Circular;
    [cir] Review the user charges for agency programs biennially, to 
provide assurance that existing charges are adjusted to reflect 
unanticipated changes in costs or market values;
    [cir] Ensure that internal control systems and appropriate audit 
standards are applied to collection; and
    [cir] Maintain readily accessible records of the information used 
to establish charges, the specific methods used to determine them, and 
the collections from each user charge imposed.\7\
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    \7\ Circular A-25, Section 8(g), provides that this information 
should be provided on request to OMB in accordance with OMB Circular 
No. A-11.
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2. The GAO Federal User Fees Design Guide
    The May 2008 GAO User Fees Design Guide presents a very useful 
analytical framework for addressing the equity, efficiency, and cost 
allocation issues posed by setting user fees. The User Fees Design 
Guide identifies and discusses at length four key design questions, and 
sub-questions for each, that agencies should address when establishing 
user fees for a good or service provided by the government:
     How are user fees set? What total program costs are 
considered and allocated among beneficiaries? Does the beneficiary pay 
principle apply, or are there special considerations, such as 
particular beneficiaries' ability-to-pay, that affect the setting of 
fees? If exemptions are established for one class of beneficiaries, how 
are their costs recovered?
     How are user fees collected? How is the proper balance 
struck between ensuring compliance with fees and minimizing 
administrative costs?
     How are user fees used by the government? What is the 
balance between Congressional oversight/appropriations controls and 
agency flexibility? Are fees dedicated only to the related agency 
program, or, are they deposited in the general fund of the Treasury?
     How are user fees reviewed and updated? Are the fee rates 
aligned with actual program costs and activities, and how are they 
adjusted for changes in program costs? What opportunities are there for 
stakeholder input in fee reviews and how does this affect acceptance?
    In addressing the key design questions, the GAO Guide explains that 
the design of user fees typically involves a balancing of several 
outcomes, including:
     The economic efficiency of user fees, including a 
consideration of the alignment of users' costs with the social costs of 
providing the services, and any incentives for reducing costs;
     The equity of the fee system, which may involve trade-offs 
between the principle that all beneficiaries of services should ``pay 
their fair share,'' and considerations of ability-to-pay;
     The adequacy of resulting revenues, insofar as revenues 
being sufficient to cover all known program related costs (direct and 
indirect) as well as to keep pace with inflation and other increases to 
program costs, and
     The administrative burden of the fees, which requires a 
consideration or balancing of the compliance burden imposed by fee 
administration and collection, as well as the costs of collection and 
enforcement of fees.
    Circular A-25 and the GAO User Fees Design Guide contain a wealth 
of information that is relevant to the administrative processes of 
setting, revising, collecting, and reporting fees. As EPA discusses its 
rationale for setting e-Manifest fees in the remainder of this 
preamble, the Agency will rely heavily on the policies and principles 
identified in these two federal guidance documents.

III. Detailed Discussion of the Proposed Rule

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

1. Background
    Under Circular A-25 policy, user fees should be designed to recover 
all system related costs that arise from the development and operation 
of the e-Manifest system. EPA recognizes that there are two distinct 
classes of entities that might be considered as users with respect to 
the e-Manifest system: (1) The class of users who represent the waste 
handlers that must actually use the

[[Page 49077]]

waste manifest in connection with tracking wastes that they generate, 
transport, or receive as RCRA designated facilities; and (2) the class 
of data consumers who do not use the manifest for regulatory 
compliance, but who might wish to access e-Manifest to obtain data on 
others' waste movements or activities. The latter class could include 
members of the general public, law firms, trade associations, and 
research organizations. This class of data users also includes state or 
tribal officials that may not have access to an internal tracking 
system for manifest data. While EPA believes that the preponderance of 
system related costs would arise in connection with the provision of 
manifest services to those using the manifest for waste shipment 
tracking or regulatory compliance purposes, there would likely be 
additional costs associated with providing members of the public with 
access to manifest data. For example, EPA might develop a public facing 
module within the e-Manifest system for the very purpose of 
distributing manifest data to the general public, or, EPA might expend 
resources distributing such data to the public through another data 
distribution service, such as the Envirofacts data warehouse or similar 
service. How should these costs be recovered under a user fee system?
    Of relevance to this issue is the statutory definition of ``user'' 
included in the e-Manifest Act. In section 2(a)(5), the Act defines 
``user'' to mean a hazardous waste generator, a hazardous waste 
transporter, an owner or operator of a hazardous waste treatment, 
storage, recycling, or disposal facility, or any other person that:
     Is required to use a manifest to comply with any Federal 
or State requirement to track the shipment, transportation, and receipt 
of hazardous waste or other material that is shipped from the site of 
generation to an off-site facility for treatment, storage, disposal, or 
recycling, and
     Elects to use the system to complete and transmit an 
electronic manifest format, or submits to the system for data 
processing purposes a paper copy of the manifest (or data from such a 
paper copy) in accordance with such regulations as the Administrator 
may promulgate to require such a submission.
    EPA incorporated this statutory definition of ``user'' within the 
terms of the February 2014 One Year Rule, which included in 40 CFR 
260.10, a definition of ``user of the electronic manifest system'' that 
is consistent with the statutory definition. Both the statutory and 
regulatory definitions focus on the members of the regulated community 
that are required to use the manifest to comply with a federal or state 
requirement to track the generation, transportation, and receipt of 
waste shipments.
2. What is EPA proposing on this issue?
    As a threshold issue, EPA is proposing to limit the imposition of 
user fees to only the members of the regulated community that must use 
the manifest as a matter of regulatory compliance for tracking the 
generation, transportation, or receipt of hazardous waste or other 
regulated waste shipments (e.g., state-only regulated wastes or special 
wastes) that are subject to a manifest requirement under federal or 
state law. EPA is not proposing to charge members of the general 
public, nor officials from federal, state, or tribal agencies, any 
service fees for their accessing manifest data from the e-Manifest 
system.\8\
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    \8\ EPA notes that public requests for information that are 
submitted to EPA pursuant to the Freedom of Information Act or FOIA 
may give rise to distinct FOIA imposed fees under FOIA requirements.
---------------------------------------------------------------------------

    This proposal is based on the Agency's belief that by defining the 
term ``user'' with reference only to the members of the regulated 
community who must use the manifest for regulatory compliance with 
waste shipment tracking requirements, Congress similarly intended that 
the imposition of user fees would be limited to the class of ``users'' 
as defined under the Act.
    EPA also believes that this proposal is supported by OMB Circular 
A-25 policy, as well as by principles of the GAO User Fees Design 
Guide. While the establishment of e-Manifest will provide significant 
benefits to waste handlers, the EPA believes the general public should 
also benefit from e-Manifest. These benefits, however, will likely be 
incidental to those afforded to the regulated waste handlers. Thus, 
under section 5.A.3 of Circular A-25, it would not be appropriate to 
allocate system costs to the public by charging members of the public a 
user fee to access e-Manifest data.
    Therefore, EPA is proposing to limit the imposition of user fees to 
the class of hazardous or other regulated waste handlers who must use 
the manifest for tracking waste shipments. User fees will not be 
assessed against members of the general public for their access to 
manifest data. As a result, the costs of providing the public with 
access to manifest data will be recovered through user fees applicable 
to the members of the regulated community who are defined as ``users'' 
under the e-Manifest Act. There will be a small, incremental increase 
in the resulting user fees to cover the cost of the incidental 
provision of data access services. EPA requests comment on this 
proposal (If submitting comments on this issue, please use comment 
header: 1. Data Access Services).

B. What will be the transactional basis for assessing user fee 
obligations?

1. Background
    Section 2(c)(1) of the e-Manifest Act provides EPA authority to 
``impose on users such reasonable service fees as the Administrator 
determines to be necessary to pay the costs incurred in developing, 
operating, maintaining, and upgrading the system.'' This authority to 
impose such fees extends to electronic manifest activities and to the 
processing of data from paper manifests that continue in use after e-
Manifest is implemented. Moreover, under section 2(c)(2) of the Act, 
EPA may collect fees from users in advance of, or as reimbursement for, 
the provision of system-related manifest services. Apart from this 
direction, however, the Act provides EPA with broad discretion insofar 
as determining the amounts of applicable fees, and determining what 
system activities should give rise to a fee.
    EPA believes that an important scoping consideration for e-Manifest 
user fees is determining what transactions should be the basis for 
manifest fees. This issue involves both the matter of what manifest-
related event should be the trigger or ``billable event'' for assessing 
a user fee, and it also involves where in the manifest business process 
this event occurs, and which user entity should thus be responsible for 
paying the fee. There is also the issue of whether the fee should be 
assessed on a per manifest basis, necessitating numerous fee payments 
of relatively small amounts, or, whether there should be a larger, 
aggregate payment paid perhaps in advance, based on recent manifest 
usage as perhaps the best indicator of likely current usage.
    In determining this issue for this proposed rule, EPA will follow 
the principles of the 2008 GAO User Fee Design Guide. The Agency will 
attempt to balance: (1) The economic efficiency of the fees so that the 
fees align with the costs of providing services; (2) the equity of the 
resulting fee system by considering ``beneficiaries pay their fair 
share'' and ``ability-to-pay'' principles; and (3) assuring adequacy of 
resulting

[[Page 49078]]

revenues, while minimizing the administrative burden of implementing 
the fee.
2. What options did EPA consider?
    EPA considered several options for determining the transactional 
basis for e-Manifest fees. Obviously, there appears to be a natural 
linkage between the system costs that accrue and the number of manifest 
transactions engaged in by the users. Thus, all options involve a 
consideration of manifest usage as a determining factor in assessing 
user fees. The options here differ in terms of what event in the 
manifest business process triggers the fee, and which entity is thus 
responsible for that fee.
    While the consideration of the transactional basis for fee 
assessments might also consider the question of whether fees should be 
collected as a lump sum payment vs. collected from multiple manifest 
transactions, that issue is addressed later in this preamble in section 
III.F, dealing with how fee payments will be made and collected. The 
remainder of this section addresses the appropriate event in the 
manifest business process for assessing fees and which of the regulated 
community users of the manifest should therefore be responsible for e-
Manifest fee payments.
    As a first option, EPA considered imposing a per manifest fee on 
the hazardous waste generators at the time they initiate their 
manifests in the system. The system would track manifest usage by each 
generator, and payments could be collected either at the time of 
provision of manifests to the generators, or, these generators could be 
billed for their usage on a monthly basis. This option would ensure 
that all manifest users, including the many generators that initiate 
the manifest and that are responsible for much of the manifest content, 
pay their fair share for the services they would use. However, this 
option would also entail establishing 100,000 or more payment accounts 
for the many hazardous waste and state-only regulated waste generators 
and engaging in invoicing and collection activities with all those 
accounts. Thus, the ``all pay their fair share'' principle must be 
balanced against the administrative efficiency of assessing fees from 
the many generators in the system.
    The alternative option considered would also impose a per-manifest 
fee, but the billable event under this option would be the submission 
of the final manifest by the TSDF to the system. While this option 
necessarily entails providing manifest services to waste handlers prior 
to the final copy submission by the TSDF, it involves the significant 
advantage that there are only a few hundred commercial or captive TSDFs 
that receive waste from off-site and that would be submitting final 
manifests to the system. Thus, there would be far fewer parties 
responsible for paying fees under this approach. Many more manifests 
would be concentrated among these several hundred TSDFs, so the fee 
collections would be far more efficient than pursuing 100,000 or more 
generators for payments of smaller amounts. Also, with the TSDFs 
primarily responsible for payment of user fees to EPA, these facilities 
would be able to pass their fee costs through to their generator 
customers as part of their waste management service charges, if so 
desired. When this option was discussed with the waste industry 
members, they appeared to accept this option as the preferred approach 
for dealing with fees and their customer relations. Industry members 
were particularly supportive of this option if it were implemented with 
a monthly billing cycle, under which they would be billed each month 
for the prior month's actual usage, rather than being assessed fees for 
estimated levels of usage.
3. What is EPA proposing on this issue?
    EPA is proposing the second option, under which the submission of 
the final manifest to the e-Manifest system by the TSDF would be the 
billable event for calculating per manifest fees. This proposal is 
driven by the far greater administrative efficiency of dealing with a 
much more manageable base of several hundred TSDFs with payment 
accounts and collection activity in the system, rather than having to 
establish and deal with 100,000 or more generator accounts and the 
attendant administrative costs of billing and collecting from so many 
more entities. This option could pose some additional revenue stability 
risk, if the EPA elects to collect fees monthly as accounts receivable 
after providing facilities with manifest services. Under this approach, 
EPA might provide TSDFs with a month of manifest services at 
significant cost prior to billing the TSDFs on a monthly cycle for 
their actual manifest usage. Thus, credible sanctions to induce prompt 
fee payments would appear to be a necessary feature to support this 
option. Such fee sanctions are discussed in section III.G of this 
preamble.
    EPA requests comments on the merits of treating the final manifest 
submission by TSDFs as the transactional basis or billable event for 
purposes of assessing user fees in e-Manifest (If submitting comments 
on this issue, please use comment header: 2. Billable Event). Do 
commenters agree with EPA's assessment that the more manageable number 
of commercial and captive TSDFs submitting manifests to the system, 
relative to the number of generators that might initiate manifests, is 
an appropriate analysis for the adoption of the policy that the final 
TSDF submission should be the billable transaction in e-Manifest? Is 
there another option available that is equally or more effective than 
this preferred option, insofar as providing a rational means for 
charging users for their manifest activity in the system, while 
minimizing the administrative costs of collection?
    In the February 2014 final regulation on electronic manifests 
(i.e., the One Year Rule), EPA codified language in parts 262, 263, and 
264/265 that would authorize the Agency to impose reasonable user fees 
on hazardous waste generators, transporters, and receiving facilities 
or TSDFs. EPA included this broad authority to impose electronic 
manifest user fees on all classes of users, as this was consistent with 
the broad grant of authority to impose such fees in the e-Manifest Act. 
In this proposal, EPA is clarifying that its preferred option would be 
to limit electronic manifest user fee payments and collections to the 
receiving facilities, thereby excluding generators and transporters 
from fee payments and collections. If the final rule adopts this 
approach, and there are no other issues presented that suggest a need 
for a broader fee collection system, EPA intends to delete the current 
parts 262 and 263 provisions that now extend fee collection authority 
to generators and transporters.

C. What model or formula will EPA use to calculate fees?

1. Background
    In this section, EPA is presenting for comment its proposed 
methodology for determining the fees that TSDFs will be assessed based 
on their usage of manifests in the system. As discussed previously in 
this proposed rule, EPA believes that assigning fees to TSDFs based on 
a per-manifest charge is the most equitable and efficient means for 
allocating system costs to users. By relying on a per-manifest charge, 
users will bear the costs of developing and supporting the system in 
proportion to their usage of it. The TSDF users would be expected to 
bear the burden and realize the benefits of the system in proportion to 
their usage, and because TSDFs can pass their fee expenses

[[Page 49079]]

through to their generator customers if desired, the system costs can 
be efficiently shared across the manifest user community.
    The proposed fee model or methodology must, of course, fully 
recover EPA's costs to design, build, operate, maintain, upgrade, and 
manage the e-Manifest system and program. This will ensure that the 
Agency can manage the e-Manifest system and program without funds from 
other appropriations, and avoid the possibility of Anti-Deficiency Act 
violations. Therefore, the development of a proposed methodology is all 
about determining first, what are all the activities related to 
developing and operating e-Manifest, and what are the costs of these 
activities? Second, once the total costs of developing and supporting 
e-Manifest have been documented, we then must determine how these costs 
will be allocated over all the manifests that will be submitted to the 
system. While at the most basic level, one might determine a per 
manifest fee by simply dividing total system costs by the total number 
of manifests in use. There are advantages to parsing the fees based on 
the type of manifest (i.e., electronic or paper types), since some 
system costs are uniquely associated with paper manifests, while others 
tend to follow electronic manifest usage. Thus, it may be possible to 
allocate system costs more equitably to the manifest types that bear 
their related costs, and perhaps incentivize electronic manifest usage 
more than would be possible if costs were simply allocated to all 
manifests equally.
2. System Related Cost Categories
    There are several categories of costs under which e-Manifest 
system-related costs may be grouped and explained. First among these 
groupings, it is important to distinguish between the System Setup 
Costs and costs that are described as Operations and Maintenance Costs.
    a. System Setup Costs. EPA considers System Setup Costs to include 
all system-related costs, intramural and extramural, prior to the time 
the e-Manifest system is fully operational. Intramural costs are those 
costs related to the efforts exerted by EPA staff and management in 
developing, operating, and managing e-Manifest. Extramural costs are 
those costs related to the acquisition of contractors to develop and 
operate the e-Manifest system. EPA will track System Setup Costs 
distinctly from post-activation Operations and Maintenance (O&M) Costs, 
since the e-Manifest Act requires that the System Setup Costs, which 
are to be funded initially by seed appropriations, be offset eventually 
by user fee collections and repaid to the Treasury. Thus, System Setup 
Costs will be tracked distinctly for the period of system development, 
which EPA anticipates will require three to five years of effort.
    EPA will amortize the System Setup Costs over an initial period of 
system operations. EPA is proposing an amortization period for System 
Setup Costs of five years, which EPA believes provides sufficient time 
to recover the System Setup Costs, while not significantly increasing 
the fees for the user community.\9\ Once the system is operational, all 
system costs will be tracked as O&M Costs in EPA's fee calculations and 
in its accounting of system expenditures. Once the five-year 
amortization period has elapsed, EPA will drop the factor in the fee 
formula representing the amortization of System Setup Costs from the 
formula, and will thereafter track all costs as O&M Costs.
---------------------------------------------------------------------------

    \9\ EPA analyzed the effects of a payback period of three, five, 
and ten years, and found that varying the amortization period had 
little effect on the total costs, resulting fee levels, or the 
efficiency of the proposed fee levels. EPA found that its total 
system costs are affected much less by the fixed costs of system 
development than by O&M costs, particularly, the marginal costs of 
processing manifests submitted to the system and the operations and 
maintenance costs for the system itself. The Agency's analysis of 
amortization options showed only a nominal effect on total fixed 
costs and on how the system's fixed costs would be collected each 
year in user fees. The impacts of amortization period on total costs 
and their recovery with the proposed rule's fee levels are 
overshadowed by the impact of other fee design elements.
---------------------------------------------------------------------------

    Within the broad category of System Setup Costs, EPA will track and 
calculate fees based on two distinct sub-categories of costs: (1) 
System Procurement Costs; and (2) EPA Program Costs dedicated to 
developing the system. The Procurement Cost sub-category is 
straightforward and includes all the IT-related contracting costs 
associated with the acquisition and development of the actual e-
Manifest IT system and all e-Manifest related IT system services (i.e., 
accounting, billing, collection, and reporting systems).
    The EPA Program Cost sub-category can be described as the EPA Full 
Time Equivalent (FTE representing EPA's staffing/labor costs) and the 
non-IT contracting costs to the Agency for developing, running, and 
managing the system. EPA Program Costs are included in either Setup 
Costs or O&M Costs based on the year they are incurred. It is the EPA 
Program Costs that are incurred before the system activation date that 
we are including in this discussion of Setup Costs. These are EPA staff 
and non-IT \10\ contract costs necessary to the design and development 
of the e-Manifest system itself and to the development of the overall 
e-Manifest program. Thus, these costs would include the costs of EPA 
staff and contracts used for the system planning and design effort, for 
development of the system architecture, for development of the program 
regulations, including this user fee regulation, for conducting program 
outreach and oversight prior to activation, for developing the Help 
Desk, for developing the FACA Advisory Committee required by the e-
Manifest Act, for conducting Capital Planning and Investment Control 
(CPIC) and other budget related activities for the program, for 
conducting program management, and other costs related to establishing 
the e-Manifest system and program prior to the system's activation. All 
of these types of costs would be EPA Program Costs and included in the 
System Setup Cost category as they are incurred prior to the system 
activation date.
---------------------------------------------------------------------------

    \10\ EPA is tracking closely its e-Manifest program costs by the 
date the costs are incurred, which is relevant to their 
classification as System Setup or as O&M costs. Likewise, EPA will 
establish distinct codes for tracking its contract tasks and their 
costs so that EPA can accurately distinguish its IT contracting 
costs (tracked either as System Procurement Costs and Electronic 
System O&M Costs depending on date incurred) from its non-IT 
contracting costs, which will be tracked in the formula as EPA 
Program Costs.
---------------------------------------------------------------------------

    b. Operations and Maintenance Costs. The Operations and Maintenance 
(O&M) Costs include all system-related costs incurred after the e-
Manifest system is activated. Important components of O&M costs are the 
costs of operating the electronic IT system to which electronic 
manifests will be submitted and all manifest data collected, and the 
costs of operating the paper manifest processing center that EPA will 
establish to meet the e-Manifest Act's and One Year Rule's requirements 
that EPA collect and process the data from any paper manifests that 
continue in use after the implementation of e-Manifest. In addition to 
the costs of running the electronic system and the paper processing 
center, O&M costs also include the same types of costs described 
previously as EPA Program Costs (EPA FTE and non-IT contract costs), 
when these costs are incurred after the e-Manifest system activation 
date. Other components of O&M Costs include Help Desk Costs necessary 
to run the e-Manifest Help Desk that will be established to provide 
technical support to system users; life-cycle enhancements to all e-
Manifest system related services, such as the services

[[Page 49080]]

required for e-Manifest billings and collections; and the CROMERR 
Costs, which are the costs of implementing solutions for e-Manifest 
that meet the requirements for electronic reporting to EPA under the 
Agency's Cross Media Electronic Reporting Rule or CROMERR. The latter 
costs include certain registration requirements for users and 
signatories, the requirements for identity proofing (when required) e-
Manifest signatories, the costs of collecting, processing, and 
maintaining Electronic Signature Agreements executed by signatories, 
and the requirements for producing and retaining copies of record of 
electronic manifests submitted to the system.
    c. Indirect costs. Indirect costs are the intramural and extramural 
costs that are not captured in any of the previously defined cost 
categories, but that are necessary to capture because of their 
necessary enabling and supporting nature, and so that our proposed user 
fees will accomplish full cost recovery. Indirect costs typically 
include such cost items as physical overhead, maintenance, utilities, 
and rents on land, buildings, or equipment. As discussed in section 
2(c)(3)(A) of the statute, the indirect costs include the EPA costs 
incurred from the participation of EPA offices and upper management 
personnel outside of the immediate program office (the Office of 
Resource Conservation and Recovery or ORCR) that is primarily 
responsible for implementing the e-Manifest program. These other EPA 
offices and upper management personnel provide support to all aspects 
of the e-Manifest program, including promulgating the e-Manifest 
implementing and fee regulations, supporting the IT system planning and 
system acquisition, and participating in the e-Manifest Advisory Board 
and the related Federal Advisory Committee Act (FACA) processes. 
Indirect costs are disparate and more difficult to track than the other 
cost categories, because they are typically incurred as part of the 
normal flow of work (e.g., briefings and decision meetings involving 
upper management) at many offices across the Agency and cannot be 
attributed directly to the activity they support. Also, the level of 
indirect costs incurred by a particular office is also likely to change 
as the e-Manifest program develops and its needs change. For these 
reasons, it is not practical to account for indirect costs in the same 
manner as the other categories of e-Manifest costs.
    EPA will account for indirect costs in the proposed e-Manifest user 
fee formulas by the inclusion of an indirect cost factor. This rate is 
multiplied by the base fee that accounts for the program's direct 
costs. The product of the indirect cost rate and the base fee is then 
added to the base fee to determine the final, comprehensive user fee.
    The Agency-wide indirect cost rate is determined for all EPA user 
fee programs by the Agency's Office of Financial Management, according 
to that Office's indirect cost methodology, and as required by Federal 
Accounting Standards Advisory Board's Statement of Federal Financial 
Accounting Standards No. 4: Managerial Cost Accounting Standards and 
Concepts. The Office of Financial Management publishes annually an 
indirect cost rate for each of the Agency's Regional Offices and for 
each of the Assistant Administrator-level program offices within EPA 
Headquarters. An indirect cost rate customized for the e-Manifest 
program will be developed, based on consideration of the EPA's existing 
indirect cost methodology and other indirect costs required to support 
the e-Manifest program.
    Therefore, once the appropriate indirect cost rate for e-Manifest 
is developed, then the indirect costs for e-Manifest would be captured 
by our proposed fee formulas as the product of the base fee times that 
indirect cost factor.\11\ The result is that the total or comprehensive 
user fee is simply the base fee formula times the expression (1 + 
indirect cost rate).
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    \11\ The EPA is developing an indirect cost rate for the e-
Manifest Program. The FY 2015 Interagency Agreement (IA) indirect 
cost rate for OLEM is 19.74%. This rate is recalculated each year 
and is therefore subject to change and consideration regarding its 
applicability to e-Manifest. EPA will calculate the fees with the 
Final Rule using the then applicable-Manifest Program indirect cost 
rate, which will be based on a consideration of the OLEM IA indirect 
cost rate and other appropriate indirect costs attributable to e-
Manifest.
---------------------------------------------------------------------------

3. Types of Manifests and Fee Categories
    Another piece of information relevant to determining applicable e-
Manifest user fees is the type of manifest that is being submitted to 
the system. In this regard, there are electronic manifests that will be 
completed by users electronically and submitted electronically to the 
system, and there are several types of paper manifests that will be 
received and processed by the e-Manifest system's paper processing 
center.\12\
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    \12\ Unlike electronic manifests, paper manifest copies (or the 
scanned images and data from paper manifests) are to be submitted to 
the national e-Manifest system for data processing purposes only, 
and are not submitted as copies of record intended to replace paper 
manifests as valid and enforceable documents. The ink-signed paper 
manifest copies that are retained at waste handler sites remain the 
enforceable copies of record where paper manifests continue in use 
to track waste shipments. The paper copies (or scanned images and 
data from them) submitted for data processing purposes require no 
CROMERR related processes or electronic signatures to accompany 
their submission.
---------------------------------------------------------------------------

    Under the One Year Rule, EPA indicated that it would accept paper 
manifest data from final manifest copies submitted by TSDFs by several 
modes of delivery. First, paper manifests could be mailed by TSDFs 
directly to EPA's processing center, where personnel staffing that 
center would open the mail, scan the paper forms to create image files, 
and manually key in the data to the national data repository. These 
paper manifests would likely undergo a significant level of Quality 
Assurance (QA) activity as well, as the experience of EPA's state 
partners with manifest tracking systems suggests that a significant 
number of paper manifests will present legibility issues, typographical 
errors, missing data, or other errors requiring follow-up with 
submitters to clarify or correct. Also, state partners advise EPA that 
they frequently find extraneous documents or mis-directed mail included 
with manifests mailed to their systems, and these require clerical 
attention to sort and return to their senders.
    Second, the One Year Rule allows TSDFs to submit scanned images of 
paper manifests to the processing center in lieu of mailing paper forms 
to EPA. These scanned image submissions involve less clerical effort 
insofar as opening mail and returning extraneous mailings, but still 
require clerical effort to conduct QA activities and to key the data 
into the data repository.
    Third, the One Year Rule provided TSDFs with the alternative of 
submitting the data from paper manifests to EPA as an image file and 
data file (e.g., XML file) that can be uploaded into the data 
repository. The receipt of data files from the TSDFs would involve less 
processing effort for EPA, as the data could be loaded to the data 
repository and merged with e-Manifest data directly with little, if 
any, QA or manual data entry.
    Thus, for purposes of this proposed rule, EPA believes there would 
be four distinct types of manifests that may be submitted to the system 
for processing. These are electronic manifests submitted in accordance 
with the national electronic format supported by the system, and three 
possible types of manifest submissions arising from the continued use 
of paper manifests: Paper manifests mailed to the EPA system operator, 
scanned images of paper manifests uploaded to the system, and an upload 
of both an image file produced from a paper manifest and a

[[Page 49081]]

corresponding data file produced by the TSDF's data system.
    As explained in detail later in this document, EPA believes that 
the several types of manifest submissions discussed here would involve 
differing effort and burden for EPA or its system operator to process. 
Indeed, since the premise of this proposed rule is that e-Manifest user 
fees should be charged on a per manifest basis, the Agency believes 
that the varying processing burden associated with these four distinct 
types of manifest submissions would be the key differentiating factor 
insofar as determining the appropriate user fee for manifests that 
would be submitted to the system. The varying processing effort 
involves varying manual labor and other costs arising from each type of 
submission. These varying human labor and related costs can be thought 
of as the marginal costs of entering the data from each method of 
submission and ultimately merging the information into the national e-
Manifest data system. Therefore, in the several user fee formula 
options that EPA considered for this action, we focus on this differing 
marginal cost per manifest submission type as a significant factor 
distinguishing the fees calculated by the proposed formula. As further 
explained in the discussion of the proposed formula, another key factor 
distinguishing the amount of the calculated fees would be the extent to 
which the different manifest types are assumed to share in the other 
O&M costs associated with operating the electronic manifest system and 
also the paper processing center. The result would be a fee schedule 
that would announce four distinct per-manifest fee categories based on 
the four types of manifest submissions, and the varying extent to which 
marginal labor costs and other system O&M costs would be allocated to 
each of the submission types by the formula.
4. What formula options did EPA consider?
    EPA considered three distinct fee formula options, which vary by 
the extent to which they distribute the marginal manifest processing 
costs and other system O&M costs across the different manifest 
submission types. As a result, the three fee formula options vary by 
the extent to which they differentiate the applicable fees for each of 
the four manifest submission types.
    The fee formula options can be compared on the basis of three 
important characteristics: Simplicity, Equity, and Resilience. 
Simplicity refers to the presence or absence of fees differentiated by 
manifest type. Equity refers to the extent to which a fee formula 
generates fees that reflect the true costs of each manifest type. 
Resilience refers to the extent to which uncertainty in the component 
variables of a formula affects its ability to assess accurate fees, and 
by extension realize full cost recovery.
    Each fee formula option entails a different trade-off between these 
characteristics, with no formula option outperforming the other two on 
every characteristic. The first option, the average cost fee, 
prioritizes simplicity over equity and resilience. The second option, 
the marginal cost fee, prioritizes resilience and equity over 
simplicity. The third option, the marginal cost highly differentiated 
fee, is the most equitable but at the loss of resilience and 
simplicity. The three fee formula options are explained in greater 
detail in the following sections.
    a. Average Cost Fee Option. The first option is a basic ``average 
cost fee'' formula. Under this option, all the manifest submission 
types would pay the same average fee. This option first calculates a 
weighted average marginal cost for processing all manifest submission 
types. To this weighted marginal cost is added another factor which 
distributes all other system setup and O&M costs equally across all 
manifests expected to be in use. In other words, under this option, 
marginal costs are averaged, setup and O&M costs are allocated equally 
to all manifest types, and there is no attempt to use the fee formula 
to differentiate among the manifest types.
    The mathematical expression of the Average Cost Fee Option is as 
follows:
[GRAPHIC] [TIFF OMITTED] TP26JY16.003

Where:

[GRAPHIC] [TIFF OMITTED] TP26JY16.004

System Setup Cost = Procurement Cost + EPA Program Cost
O&M Cost = Electronic System O&M Cost + Paper Center O&M Cost + Help 
Desk Cost + EPA Program Cost + CROMERR Cost + LifeCycle Cost to 
Modify or Upgrade eManifest System Related Services

    This option has the advantage of simplicity, as it results in one 
average or standard fee to be paid on a per-manifest basis for all four 
of the manifest submission types. However, it is quite sensitive, 
meaning it may not collect sufficient revenue, since the use of a 
weighted average marginal cost assumes that EPA can accurately predict 
the prevalence of each manifest submission type each year. If the 
actual distribution of manifest types differs from these projections, 
then this formula will likely under- or over-collect fee revenue 
relative to program costs.
    Additionally, this option is not very equitable. There is 
simplicity in using this formula to arrive at a standard fee, but it 
results in this option permitting a portion of the costs of paper 
manifest use to be subsidized by electronic manifests. Paper manifest 
submission types will almost certainly bear greater marginal costs than 
fully electronic manifests, but this formula does not recognize such 
differential costs when it prescribes one average fee for all 
manifests. Therefore, this option would not be very helpful in 
effectuating the Agency's goal of promoting the greater use of 
electronic manifests in the system.
    b. Marginal Cost Differentiated Fee Option. The second option 
considered by EPA would attempt to differentiate among the different 
manifest submission types by focusing most on the varying marginal or 
human labor cost of processing each manifest submission type into the 
national e-Manifest data system. As a part of the economic analysis EPA 
conducted for these fee formula options, EPA

[[Page 49082]]

developed estimates of the marginal, human labor cost of processing 
paper manifests received in the mail, processing image files uploaded 
to EPA, processing data (XML) files uploaded to EPA with image files, 
and processing fully electronic manifests into e-Manifest. This option 
keys off the differing marginal cost of processing manifests as the 
factor that differentiates the resulting manifest user fees. Otherwise, 
it addresses System Setup Costs and O&M Costs in the same manner as 
Option 1, that is, by amortizing system setup costs over five years, 
and by otherwise distributing setup costs and O&M costs from overall 
systems operations equally across all manifest submission types.
    The mathematical expression of the Marginal Cost Differentiated Fee 
Option is as follows:
[GRAPHIC] [TIFF OMITTED] TP26JY16.005

Where:

System Setup Cost = Procurement Cost + Program Cost
O&M Cost = Electronic System O&M Cost + Paper Center O&M Cost + Help 
Desk Cost + EPA Program Cost + LifeCycle Cost to Modify or Upgrade 
eManifest System Related Services + CROMERR Cost

    This fee formula option is premised on our belief that the 
marginal, human labor costs of opening mail, conducting QA on paper 
submission types, and conducting data key entry on the paper submission 
types (other than XML file uploads that load directly into the system) 
are the costs that most clearly and significantly differentiate 
manifest submissions for purposes of determining fees. This option 
further assumes that since data from all manifest types will be entered 
into the e-Manifest system's data repository, it is appropriate for all 
paper submission types to contribute to the electronic system's setup 
and O&M costs. The option is the most resilient as it does not involve 
any projections of the prevalence of manifest types such as is involved 
with the calculation of a weighted average marginal cost under Option 
1, so it is less likely to under- or over-collect revenue should such 
projections not pan out. Another significant advantage of this option 
is that because it would result in higher differential fees for paper 
manifest submission types, it is consistent with our goal of promoting 
the greater use of electronic manifests.
    A potential weakness in this option is that it may not be 
sufficiently aggressive insofar as requiring paper manifest types to 
bear the full differential costs associated with managing paper 
manifest submissions. Under this option, for example, electronic 
manifests share in the costs of establishing the paper processing 
center and in the O&M costs (other than labor costs) of running the 
paper center. EPA believes that this option could represent a useful 
bridge toward the greater use of electronic manifests, particularly in 
the initial years of e-Manifest program implementation. It will likely 
require several years for the full transition to electronic manifesting 
to occur, as manifest users will need to acquire the hardware and 
capability to participate in e-Manifest, and they will need to gain 
confidence in the reliability of electronic manifests relative to the 
paper forms that are so familiar and have served the needs of the 
program for many years. When EPA discussed fee options with the 
hazardous waste management community during the development of this 
proposed rule, industry members confirmed that they anticipated a 
transition to electronic manifesting, with perhaps a period of time 
when industry members may first submit XML data file uploads to EPA 
from their customers' paper manifests, and over time, acquire the 
technology and systems to migrate to supplying fully electronic 
manifests for their customers' use. EPA heard concerns from industry 
members that the fee formula should be sensitive to the need for a 
period of transition, and that there should not be too great a premium 
fee for paper manifest use at the outset.
    Thus, EPA believes that this second fee option reflects these 
concerns, and is consistent both with encouraging electronic manifest 
use, while recognizing that a transition from paper submissions to XML 
file submissions may be the course that e-Manifest implementation 
follows on its ultimate path to electronic manifest use. However, EPA 
does remain concerned that, over time, the Marginal Cost Differentiated 
Fee Option may not be effective to promote the full transition to 
electronic manifesting, and could instead result in the interim 
arrangements--the submission of XML files produced from paper 
manifests--becoming the end result. While such an outcome would produce 
a robust data base of manifest data from designated facilities, it 
would perhaps leave in place a regime in which inefficient and 
burdensome paper manifests remain in wide circulation among all 
manifest users.
    c. Marginal Cost Highly Differentiated Fee. As a third option for 
determining the e-Manifest user fee, EPA also considered an approach 
that goes further than the previous option in requiring paper manifest 
submission types to bear more of the program costs arising from the 
continued use of paper manifests. This third fee formula option, the 
Marginal Cost Highly Differentiated Fee option, is structured similarly 
to the second option, but with one key difference. Under the third 
option, the O&M costs of running the paper processing center are 
allocated only to paper manifest submission types, and not shared 
equally with the electronic manifests. The premise of this option is 
that since fully electronic manifests will have no contacts or dealings 
with the paper processing center, then these fully electronic manifests 
should bear no part of the costs of operating the paper center. Thus, 
in addition to the marginal, human labor costs of processing paper 
manifest types that are allocated to paper manifest submissions under 
Option 2, this option more fully allocates the program costs of 
managing paper manifests to the paper submission types, by adding the 
other non-labor O&M costs of the paper center to the cost burden to be 
borne by paper submission types. This also may encourage industry users 
to migrate to electronic manifests more expeditiously, since it will 
not mask the true costs of processing paper manifests by subsidizing 
the non-labor costs of the paper processing center, as occurs with 
Option 2.
    This option does not present the simplicity of Option 1, as the 
fees it would produce clearly differentiate among several manifest 
submission types. This option would also appear to be the most 
equitable of the options, as it would require paper manifest 
submissions to bear both the labor and non-labor costs of the paper 
processing center, rather than sharing the non-labor costs with 
electronic submissions. However, the equity of this option is achieved 
at the expense of resiliency, as

[[Page 49083]]

this option would require that EPA estimate with precision the number 
of electronic manifest and the number of paper-variant manifests in 
order to properly assign non-labor paper center O&M costs to paper 
manifests. Thus, as a result of uncertainties affecting the numbers of 
electronic and paper submission, this fee option is more likely to 
over- or under-recover revenue than Option 2. Moreover, because this 
option is somewhat more aggressive than the second option in allocating 
program costs to paper manifest types, it could be more effective than 
Option 2 in promoting the greater use of electronic manifests. However, 
this option could be perceived by users as imposing initially too great 
of a premium fee on paper manifest types, before electronic manifesting 
is widely available to and embraced by users.
    Mathematically, the Marginal Cost Highly Differentiated Fee option 
can be expressed as follows:
[GRAPHIC] [TIFF OMITTED] TP26JY16.006

Where:

System Setup Cost = Procurement Cost + Program Cost
O&M fully electronic
    = Electronic System O&M Cost + EPA Program Cost
    + CROMERR Cost
    + LifeCycle Cost to Modify of Upgrade eManifest System Related 
Services
O&M all other
    = Electronic System O&M Cost + Paper Center O&M Cost + Help Desk 
Cost
    EPA Program Cost + CROMERR Cost
    + LifeCycle Cost to Modify or Upgrade eManifest System Related 
Services

5. What fee formula is EPA proposing?
    EPA's preferred option for this proposed rule is actually a 
combination of the second and third options discussed earlier. In other 
words, EPA is proposing that it would initially implement the Marginal 
Cost Differentiated Fee Option (2nd option), but would reserve the 
ability to transition to the Marginal Cost Highly Differentiated Fee 
Option (3rd option), should a triggering condition included in this 
rule be actuated, suggesting that a more aggressive fee formula is 
needed to promote greater levels of electronic manifest use.
    By proposing this combined or hybrid option, EPA acknowledges that 
the second option represents a useful compromise between promoting 
electronic manifest use initially, while recognizing that a transition 
from paper submissions, to XML submissions, to fully electronic 
submissions may be a useful path for industry and the e-Manifest system 
to pursue. EPA believes that the Marginal Cost Differentiated Fee 
Option is consistent with such a transition approach. Indeed, if the e-
Manifest option is fully adopted by most hazardous waste handlers, the 
fee formula represented by this option may be the only fee formula 
necessary to determine fees for the e-Manifest program.
    However, EPA is concerned that after the desired transition period 
has run, that it may require some additional incentives to effectuate a 
fuller migration to electronic manifest usage. Under the second formula 
option, the fee differential between electronic manifests and those 
paper manifest submissions uploaded by TSDFs as XML files is not very 
great, with the XML submissions bearing fees that are perhaps only 15% 
greater than the electronic manifests. Paper manifests mailed to EPA 
for processing would incur a per-manifest fee about 88% greater than 
the fee for electronic manifests. Thus, there is a possibility that the 
transition to XML file submissions from paper manifest use could become 
a plateau in the program implementation that is difficult to move 
beyond without greater fee incentives. So, upon an appropriate 
triggering condition, EPA believes it would be useful to change the fee 
formula to the third formula option, so that the paper submission types 
bear a fuller share of the program costs related to using and 
processing paper manifests.
    Another issue for this proposed rule, therefore, is what is the 
appropriate condition that should trigger the implementation of the 
Marginal Cost Highly Differentiated Fee Option after a transition 
period? For several years, EPA has indicated to stakeholders and to the 
program's overseers that the Agency believed that it could accomplish 
significant paperwork burden reductions and cost savings if 75% 
electronic manifest usage could be attained after program 
implementation. Based on very preliminary estimates of possible program 
adoption rates, EPA further postulated that under favorable conditions, 
adoption of electronic manifesting by some of the larger manifest user 
companies might bring about a 75% use rate after a period of about five 
years. That being the estimate or goal previously announced, EPA 
believes that this stated goal, with a slight modification to comport 
with our proposed two-year cycles \13\ for reviewing and revising our 
fee schedules, could represent a useful trigger condition for this 
proposed rule. Therefore, EPA is proposing that the e-Manifest user fee 
schedule would be initially developed using the second option's 
Marginal Cost Differentiated Fee formula for the base fee. EPA is also 
proposing that if, however, EPA finds after four years of e-Manifest 
system operations that electronic manifest usage has not yet reached 
our goal of 75% penetration, then EPA will thereafter use the third 
option's Marginal Cost Highly Differentiated Fee formula for developing 
the applicable user fee schedules.
---------------------------------------------------------------------------

    \13\ The proposal to publish revised fee schedules at two-year 
intervals is discussed in the following section III.D, of this 
preamble. Because we propose to revise the fee schedules at two-year 
intervals, it makes sense to examine whether electronic manifest use 
has reached a 75% adoption rate after four years, rather than five 
years.
---------------------------------------------------------------------------

6. Request for Comment
    EPA requests comment on its preferred option that would initially 
calculate per-manifest fees based on the Marginal Cost Differentiated 
Fee formula, and then transition to the Marginal Cost Highly 
Differentiated Fee formula should electronic manifests not attain a 75% 
usage rate after four years of system operations (If submitting 
comments on this issue, please use comment header: 3. Fee Methodology). 
Do commenters agree that the combination of these two formula options 
is superior to the other options alone? Do commenters agree with EPA's 
strategy of starting with the less aggressive fee formula in the 
initial years of program implementation, to foster a smoother 
transition from paper manifest use to electronic manifesting? Do 
commenters agree that after an initial period of transition, it makes 
sense to adopt a fee formula that more aggressively allocates paper 
manifest management costs to the paper manifest submission types that 
remain in use? Has EPA proposed a sensible trigger condition for 
shifting between the fee formulas? Is the goal of 75% electronic

[[Page 49084]]

manifest penetration a reasonable goal, and if not, why not? Would some 
other period be preferable for EPA to measure electronic manifest 
implementation progress? If so, what is that period of time and why 
would it be preferable? Is the third fee formula option sufficiently 
aggressive to accomplish this purpose, and will it likely promote the 
adoption of higher levels of electronic manifest usage?
    In addition, EPA would appreciate comments addressing these fee 
formula questions (If submitting comments on any of the questions in 
the following seven bullets, please use comment header: 3. Fee 
Methodology).
     Is the proposed fee formula sufficiently clear insofar as 
identifying the program costs that will be allocated among manifests, 
and explaining how the fee amounts will be determined? How can the 
clarity of the fee formula be improved?
     Do commenters agree with the general premise of the fee 
formula that per-manifest fees should be charged to manifests based on 
the type of manifest submission, and that the marginal cost (human 
labor cost of data key entry and QA activities) should be a significant 
factor in determining the appropriate fees? What other bases are there 
for differentiating manifest fees?
     Do commenters agree with the proposed fee methodology that 
first determines the marginal human labor cost for processing each 
manifest submission type, and then adds to that cost estimate a factor 
that distributes setup and O&M costs over the numbers of manifest in 
use? Are there other fee models that would more effectively and 
equitably allocate program costs to users and determine appropriate 
fees for the various manifest submission types?
     Do commenters agree that a five-year amortization period 
is an appropriate period of time over which to recover system setup 
costs? Is there another amortization period that EPA should adopt for 
this purpose, and if so, why?
     Do commenters agree with EPA's analysis of the options 
considered, and that EPA has selected the most desirable fee option? 
Does the proposed fee approach promote EPA's goals of accomplishing 
full program cost recovery and promoting electronic manifest use?
     Has EPA omitted any program costs that should be included 
in our determination of e-Manifest user fees?
     In developing its fee methodology, EPA has not proposed 
any specific fee or other incentives to promote desirable materials 
management behaviors, such as waste minimization or recycling of 
hazardous secondary materials. In many instances, our hazardous waste 
regulations provide manifest exemptions for hazardous secondary 
materials, so in one sense, the user fee costs that this action would 
impose on shipments subject to the manifest may provide some additional 
incentive for recycling or waste minimization. Are there other 
incentives that could be included in this user fee regulation that 
would promote greater recycling of these materials? If such incentives 
would involve fee discounts or monetary incentives, how should EPA 
allocate the revenue effects of such incentives among the manifest 
users who would pay fees under this action? Are there other incentives 
that EPA could consider for this user fee regulation? EPA welcomes 
comments on these matters.
    Finally, EPA emphasizes that this proposal addresses the submission 
of paper manifests by adopting a fee approach that assigns fees to 
paper manifest submissions from TSDFs based upon the difference in 
marginal costs of processing the various paper manifest types. The 
submission of paper forms to EPA by mail would bear the highest fees, 
while submission of image files, or data and image files, would involve 
less processing effort and thus reduced fees under the proposed fee 
methodology.
    EPA has heard from TSDFs that they generally would prefer to submit 
data files from their paper manifests to EPA, rather than incurring the 
costs of mailing paper forms to EPA for full processing. However, EPA 
has consulted primarily with a trade association (the ETC) that is 
comprised of larger TSDFs, so we do not know whether mid-size or 
smaller TSDFs would be similarly inclined to submit data files and 
scanned images of manifests to EPA and avoid mailing paper forms to EPA 
for processing. The differential fee approach we propose should itself 
discourage TSDFs from submitting large numbers of manifests by mail. 
However, it is difficult for EPA to project with confidence how many 
paper manifests will be mailed to the Agency in the initial years of e-
Manifest operations. This is a concern for EPA, as the processing of 
mailed forms could involve significant personnel and contractor costs 
for opening and screening mail, for data key entry, document archiving, 
and for QA activities related to resolving data quality issues. Paper 
processing costs could dominate the O&M costs in the early years of 
operation, and if mail submissions occur in unexpectedly large numbers, 
EPA may need to increase fees or consume more of its appropriated funds 
than anticipated to process mailed manifests. Therefore, EPA is 
requesting comment on another approach under which TSDFs would be 
restricted to submitting their paper manifest data to EPA by electronic 
means only, that is, by uploading image files to EPA, or by uploading a 
data file (e.g., XML file) of manifest data accompanied by an image 
file (If submitting comments on this issue, please use comment header: 
4. Disallow Postal Mailed Manifests). Would TSDFs support an option 
that precluded their mailing paper manifest forms to the Agency, as 
this would reduce EPA's processing costs and the associated user fees? 
Are there TSDFs that would find this approach objectionable, because it 
requires the capacity to scan documents and upload data to EPA, or for 
other reasons? Is the proposed differential fee approach for paper 
manifest types sufficient to regulate the number of mail submissions to 
EPA, or is a more forceful approach (i.e., restricting paper copy data 
submissions to digital methods only) necessary to keep the paper 
processing costs and fees in check? Are the processing efforts related 
to mailed paper manifests that different from the effort related to 
processing image files sent to the Agency? \14\ EPA requests specific 
comments on the merits of an approach that would restrict TSDFs to 
submitting their paper manifest data to the Agency by digital methods 
only, and not by mailing hard copies to the EPA system.
---------------------------------------------------------------------------

    \14\ EPA anticipates that fees for processing mailed manifests 
will be about 20-25% greater than for scanned images, because 
manifests delivered by mail will need to be opened, sorted for 
errant submissions, logged, stored and retrieved prior to 
processing, scanned by paper center personnel, and then disposed of 
after scanning.
---------------------------------------------------------------------------

7. Illustrative Range of User Fees Using the Proposed Fee Formula
    EPA has developed illustrative ranges of user fees based on varying 
the system development costs and allocating such costs across a large 
range of possible manifest usage numbers. These illustrative ranges are 
intended to show the relative difference in possible fee amounts among 
the various manifest submission types. The illustrative ranges also 
suggest generally the users' possible exposure to fees, and show the 
effect on fees of varying the overall system-related costs and the 
numbers of manifests that will share in these costs when fees are 
assessed. The result is a possible or illustrative range of user fee 
estimates that are displayed in the following tables. Since EPA's fee 
determination model was based on the varying marginal cost of 
processing the

[[Page 49085]]

several types of manifest submissions, we have included a distinct 
table presenting illustrative fee ranges for fully electronic manifests 
and each of the three paper manifest submission types.

              Per Manifest Fee, Fully Electronic Manifests
------------------------------------------------------------------------
                                              System procurement costs
                                                    (millions $)
      Number of manifests  (millions)      -----------------------------
                                               10        15        20
------------------------------------------------------------------------
5.........................................      9.00      9.00      9.50
4.5.......................................     10.00     10.00     11.00
4.........................................     11.50     11.50     12.00
3.5.......................................     13.00     13.00     14.00
3.........................................     15.00     15.50     15.50
2.5.......................................     18.00     18.50     19.00
2.........................................     23.00     23.50     24.00
------------------------------------------------------------------------


         Per Manifest Fee, XML Submissions From Paper Manifests
------------------------------------------------------------------------
                                              System procurement costs
                                                     (millions )
      Number of manifests  (millions)      -----------------------------
                                               10        15        20
------------------------------------------------------------------------
5.........................................     11.50     11.50     12.00
4.5.......................................     12.50     12.50     12.50
4.........................................     14.00     14.00     14.50
3.5.......................................     15.00     15.50     15.50
3.........................................     17.50     18.00     18.00
2.5.......................................     20.50     21.00     21.50
2.........................................     24.50     25.00     25.50
------------------------------------------------------------------------


      Per Manifest Fee, Image File Submissions from Paper Manifests
------------------------------------------------------------------------
                                              System procurement costs
                                                     (millions )
      Number of manifests  (millions)      -----------------------------
                                               10        15        20
------------------------------------------------------------------------
5.........................................     17.00     17.00     17.50
4.5.......................................     18.00     18.00     18.50
4.........................................     19.00     19.00     20.00
3.5.......................................     20.50     21.00     21.50
3.........................................     23.00     23.50     23.50
2.5.......................................     25.50     26.50     27.00
2.........................................     30.50     31.00     31.50
------------------------------------------------------------------------


                 Per Manifest Fee, Postal Mail Manifests
------------------------------------------------------------------------
                                              System procurement costs
                                                     (millions )
      Number of manifests  (millions)      -----------------------------
                                               10        15        20
------------------------------------------------------------------------
5.........................................     21.00     21.00     21.50
4.5.......................................     22.00     22.00     22.00
4.........................................     23.50     23.50     24.00
3.5.......................................     24.50     25.00     25.00
3.........................................     27.00     27.50     27.50
2.5.......................................     30.00     30.50     31.00
2.........................................     34.00     34.50     35.50
------------------------------------------------------------------------

D. How does the proposal address fee trajectory issues?

1. Background
    The topic of fee trajectory is concerned with the actions that EPA 
will take to adjust e-Manifest user fees to inflationary or other 
program cost changes, so that fee schedules and resulting revenues keep 
pace with program costs. In the document, Federal User Fees, A Design 
Guide, GAO emphasized the significance of this issue in ensuring that a 
user fee program is able to maintain full cost recovery. GAO noted that 
if fees are not reviewed and adjusted regularly, programs will run the 
risk of overcharging or undercharging users, while also raising equity, 
efficiency, and revenue adequacy concerns. GAO further noted that the 
questions affecting fee trajectory and revisions include:
     What are the fixed and variable costs of fee-funded 
activities?
     What are the timing and pattern of program spending?
     How quickly can the program adjust fee rates in response 
to changes in collections or costs?
     Are there other sources of funding or authority for a 
reserve that may mitigate shortfalls?
     Can the Agency update its fees more frequently by rule, 
and if so, how will the Agency enhance stakeholders' trust in its 
revision methodology?
    The e-Manifest Act does speak to several of these matters. Sections 
2(c)(1) and 2(c)(3)(B) of the Act clearly confer discretion on EPA to 
set and periodically adjust e-Manifest fees to ensure alignment with 
program costs. The latter section authorizes EPA to consult with the 
System Advisory Board on fee revisions, and to increase or decrease the 
amount of fees to a level that results in the collection of revenue 
that is sufficient, but not more than reasonably necessary, to cover 
current and projected system related costs (including upgrades). Fee 
adjustments are also required to maintain revenues at a level that will 
minimize the accumulation of unused amounts in the System Fund.\15\
---------------------------------------------------------------------------

    \15\ EPA must recover the system development costs and repay the 
Treasury for the funds advanced for system development work. EPA 
will amortize development costs over 5 years, and while the fee 
collections corresponding to these development costs may accumulate 
in the System Fund, they would not be counted toward any surplus.
---------------------------------------------------------------------------

    On the question of the timing of fee revisions, the Act provides 
that an initial adjustment to user fees shall be made at the time at 
which initial system development costs have been recovered, and 
periodically thereafter, upon receipt of information in annual 
financial accounting or audit reports, disclosing a significant 
disparity between fee collections for a fiscal year and expenditures 
made that year for program related costs. Thus, EPA does have 
discretion to revise fees as necessary to maintain balance between 
revenues from fee collections and program costs as changes occur over 
time. The e-Manifest Act authorizes EPA to accumulate a revenue surplus 
of not more than $2 million over the initial three-year period of 
operations, presumably out of recognition that there might be 
imprecision in cost estimates and revenue forecasts in the initial 
period of system operations.
    EPA attaches great significance to the role of the System Advisory 
Board in consulting with EPA on fee revisions. As the Board will be 
comprised of a cross-section of program stakeholders, EPA believes that 
this consultation role will be very important to maintaining trust in 
EPA fee setting and revision methodology. Financial reports and audits 
will be shared with the Advisory Board, and current and projected 
program budgets and their effects on proposed fee revisions will be a 
regular agenda item for EPA's discussions with the Advisory Board. 
Therefore, it is essential that these discussions, our fee setting 
methodology, and our fee revision methodology be rational and 
transparent to our stakeholders. Thus, this section of the preamble is 
intended to explain the fee revision methodology and schedule we 
propose to follow in our regular efforts to maintain balance between 
fee collections and program costs.
    Additional Federal guidance relating to fee revisions appears in 
OMB Circular A-25. In Section 8.e. of this Circular, addressing Agency 
responsibilities, OMB states that each agency will review the user 
charges for agency programs biennially to include, among other things, 
``assurance that existing charges are adjusted to reflect unanticipated 
changes in costs or market values.'' Thus, it is the objective of this 
action to propose a fee trajectory or revision methodology that 
implements the direction provided by the e-Manifest Act, as well as the 
applicable guidance in Circular A-25 and the GAO Design Guide.
2. What methodology and process is EPA proposing for e-Manifest fee 
revisions?
    EPA is proposing a fee revision methodology under which the Rule's 
fee formula would be re-run at two-year intervals, with the most recent 
program cost and manifest usage numbers being

[[Page 49086]]

used in running the fee formula to calculate the fees for each manifest 
submission type. The result would be a fee schedule that announces the 
fees for each of the next two years. EPA would publish the revised fee 
schedules at the e-Manifest program's Web site, and would also provide 
a link to users when they access the e-Manifest system so that they 
could be immediately notified of and directed to the new fee schedules. 
We would provide this type of actual notice to system users (via a link 
to the publication at the program's Web site) 90 days prior to the 
effective date of the new fee schedule. This proposal would require 
revisions to several provisions of the One Year Rule that EPA issued in 
February 2014. In the One Year Rule, EPA stated in several regulatory 
provisions that it would update e-Manifest user fees from time to time, 
and that fee schedules would be published as an appendix to 40 CFR part 
262. This proposed rulemaking would instead publish the fee schedules 
and their revisions to users at the e-Manifest program's Web site, and 
not codify the fee schedules in an appendix to part 262. Therefore, 
this proposed rule would delete the requirement to codify fee schedules 
in a part 262 appendix from the current regulations at 40 CFR 
262.24(g), 263.20(a)(8), 264.71(j), and 265.71(j).
    Thus, while EPA would develop the initial fee schedule under this 
action using notice-and-comment rulemaking procedures, it is not EPA's 
intent to issue the subsequent fee schedule revisions through notice-
and-comment proceedings. Rather, EPA is proposing its methodology for 
fee calculations and revisions in this rulemaking, and when we finalize 
this rule in response to comments, our final methodology will be 
announced and used to calculate the initial set of program fees. 
However, with each two year fee revision cycle thereafter, EPA will re-
run the fee calculations using the latest program costs and manifest 
numbers, but will not subject the revised fee schedules to notice-and-
comment proceedings, as long as the fee revision calculations are based 
on the same fee methodology that we develop with this action. Our 
intent is to develop a fee setting and revision methodology that would 
be durable and could be used repeatedly over the coming years, with 
adjustments to fees being announced consistently with the formulas and 
adjusters included in this methodology. However, if EPA alters 
significantly its methodology for calculating or adjusting fees, or the 
fees are affected by significant new program costs not anticipated in 
the formulas we include in our initial fee-setting methodology, then 
EPA would follow notice-and-comment procedures before announcing any 
revised fees based on a significantly new fee methodology.
    EPA also considered a process under which the Agency would run the 
fee formula with the most recent costs and manifest usage numbers on an 
annual basis. While this option would appear to be most responsive to 
program cost changes, it is not our preferred option for this proposal. 
EPA is instead proposing a two-year cycle for re-running the fee 
formula and publishing fee schedules, because we believe that a two-
year cycle strikes a better balance between revenue accuracy, process 
burdens, and fee program stability for users. With a two-year cycle, 
the user community will know and be able to budget for the fees that 
will be owed for each manifest submission over a more stable period of 
two years, rather than having to deal with a fee schedule that is 
constantly under revision. For EPA, there will also be advantages, in 
that the Agency will not need to incur the administrative costs of re-
issuing fee schedules and publishing them each year, and explaining the 
resulting fee changes to the Advisory Board and user community. 
Moreover, EPA believes that a two-year cycle for issuing fee schedule 
revisions is consistent with the guidance of OMB Circular A-25, which 
requires agencies to conduct biennial reviews of its user fees, 
including adjustments in fee charges.
3. What adjusters would be included in the proposed fee revision 
methodology?
    Obviously, with each re-running of the fee setting formula at our 
proposed two-year interval, the fees that are so determined will have 
been ``adjusted'' to reflect the most recent program costs from each of 
the cost categories discussed in the formula, and to reflect the number 
and type of manifest submissions. Nevertheless, we are proposing 
additional adjusters to further enhance our ability to keep fee 
revenues in balance with program costs.
    a. Inflation Adjuster. First, since fee schedules will be announced 
for each of the two years following the issuance of the new fee 
schedule, we believe it may be necessary to include an adjuster to 
account for inflationary effects between the first and second years of 
each fee schedule. While inflation has been very modest in recent 
years, and it may not seem worthwhile at existing inflation rates to 
adjust for inflation in the second year's schedule, it is not clear 
that the recent experience with marginal rates of inflation will 
continue into the future. Since EPA desires to establish a durable fee 
revision methodology that will service the program's needs for several 
years, we believe it is prudent to include an inflation based factor to 
deal with inflationary impacts to program costs between the two years 
covered by each fee schedule.
    One such inflation based adjustment would make use of the Consumer 
Price Index (CPI) or similar index of price or labor cost changes to 
represent the impact of inflation in changing the program costs to be 
recovered from user fees. It is not uncommon for the CPI that is 
published by the Bureau of Labor Statistics (BLS) to be used in fee 
programs such as e-Manifest to represent the impact of inflation on 
program costs generally. Given the manner in which the CPI is 
determined by BLS, the CPI may not be an entirely accurate measure of 
the changes in the costs of labor and IT services and commodities that 
are being purchased to support the e-Manifest project. However, absent 
a demonstration that there is another index that is more specific to 
and more representative of program costs changes for e-Manifest, the 
Agency is proposing to rely on the use of the CPI as a sufficiently 
representative index for our fee adjustment purposes.
    According to BLS, the CPI is intended as a measure of the average 
change over time in the prices paid by urban consumers for a so-called 
``market basket'' of consumer goods and services. The CPI market basket 
is determined from surveys of the purchases and spending habits by 
several thousand urban families from around the country. For this urban 
population, the CPI market basket represents goods and services 
purchased for consumption from more than 200 categories of items drawn 
from eight major groups: Food and beverages, housing, apparel, 
transportation, medical care, recreation, education and communication, 
and other goods and services. Charges for certain government services, 
such as water and sewer charges, auto registration fees, and vehicle 
tolls are also included in the calculation of the CPI. The broadest and 
most comprehensive CPI published by the BLS is known as the All Items 
Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City 
Average, 1982-84 = 100. Many other CPI indices are published, involving 
various seasonal or regional adjustments or to specifically include or 
exclude certain goods or services. However, for purposes of e-Manifest 
fee inflation adjustments, EPA proposes to rely on the CPI based on all 
items, and not seasonally adjusted.

[[Page 49087]]

    The CPI is certainly a commonly relied upon measure of inflation, 
which has been defined as a process of continuously rising prices or of 
the continuously falling value of money. The CPI is skewed toward 
consumer goods and services, so it does measure inflation as 
experienced by consumers in their day-to-day living expenses. However, 
it is not the only measure of inflation that is available as a gauge of 
inflation's possible effects on e-Manifest program costs. There is also 
a Producer Price Index (PPI) for measuring inflation at earlier stages 
of the production process; there is an Employment Cost Index (ECI) to 
measure the effects of inflation in the labor market; and there is a 
Gross Domestic Product Deflator to measure inflation experienced by 
both consumers and governments and other institutions providing goods 
and services to consumers. There are also other more specialized 
measures that could be used for this purpose as well. However, other 
federal user fee programs tend to use the CPI as the means to measure 
inflationary impacts on their program costs, and barring persuasive 
evidence that there is a more suitable index for e-Manifest, we believe 
that the CPI should be sufficient for this purpose.
    A CPI-based adjuster used to adjust the second year of e-Manifest 
fees in a two-year fee schedule could be structured as follows:

FeeiYear 2 = FeeiYear1 x 
(CPIYear2-2/CPIYear2-1),

Where

FeeiYear2 is the Fee for each type of manifest submission 
``i'' in Year 2 of the fee cycle,
FeeiYear1 is the Fee for each type of manifest submission 
``i'' in Year 1 of the fee cycle, and
CPIYear2-2/CPIYear2-1 is the ratio of the CPI 
published for the year two years prior to Year 2 to the CPI for the 
year one year prior to Year 2 of the cycle.

    Thus, by factoring the Fee for Year 1 for each manifest submission 
type by the ratio of the two most recent years' CPI's, the result would 
represent the second year fee amount corrected for inflation under this 
proposed rule.
    In summary, EPA is proposing an inflation adjustment factor 
predicated on the use of the CPI-U, for all items, not seasonally 
adjusted, as a sufficiently representative inflationary index and a 
means to adjust e-Manifest user fees for inflation between the first 
year and second year of the two-year fee schedules that EPA will 
develop and publish to the e-Manifest program Web site. We request 
comment on this aspect of the proposed rule (If submitting comments on 
this issue, please use comment header: 5. Inflation Adjuster).
    b. Revenue Recovery Adjusters. In addition to an inflation 
adjuster, EPA is proposing an additional adjuster that would be aimed 
at recapturing revenue that was lost on account of imprecision in 
estimating the numbers and types of manifest submissions that would be 
processed by the e-Manifest system. We also are proposing an adjuster 
that would recover revenue lost on account of manifest submissions that 
were uncollectable from the users that submitted manifests but did not 
pay their fees when due or in response to collection actions. Unlike 
the inflation adjuster, which operates to adjust fees between the first 
and second years of each two-year fee cycle, these two adjusters would 
be ``look back'' adjusters that would look back to the previous two-
year fee cycle, and attempt to recover revenue losses from that 
previous cycle through adjustments to the fee schedules for the new 
cycle. The revenue recaptured through these adjusters would be added to 
the O&M Costs in the fee calculation formula, so that this recaptured 
revenue would be re-allocated like other program operation costs to the 
fees charged on a per-manifest basis.
    In support of this user fee regulation, EPA has developed a model 
that provides estimates over several years of assumed adoption rates 
for each manifest type, of call center costs, of electronic system O&M 
costs, of paper center costs, of system setup costs, of EPA Program 
Costs, of CROMERR implementation costs, of e-Manifest related system 
enhancement costs, and of the marginal costs of each manifest 
submission type. These cost categories are the major elements of 
program costs that our user fees will allocate to users through the 
development of per manifest unit charges or fees. As EPA develops more 
current information on actual program and system procurement costs 
incurred in developing and operating e-Manifest, these actual cost 
figures will be inserted in the fee formulas to develop our initial and 
subsequent fee schedules. However, an area of high sensitivity for the 
accuracy of e-Manifest fees that are determined on a per manifest basis 
is the accuracy of our projections about manifest usage. Particularly 
at the outset of the e-Manifest program, when we are capturing fee 
revenue based on unproven projections about how many total manifests 
and how many manifests of each type will be submitted, there is a risk 
of revenue instability for the program if these initial projections are 
not accurate.
    To address this revenue stability risk, EPA is proposing an 
adjuster that would add to the revenues to be collected in a new fee 
cycle the revenues lost in the previous cycle on account of imprecision 
in the manifest usage numbers used as assumptions in the development of 
the previous fee amounts. This manifest number adjuster could be 
expressed as follows:

Revenue Recapturei = [(NiYear1 + 
NiYear2)Actual (NiYear1 + 
NiYear2)Est] x 
[Feei(Ave of Yrs1and2)],
Where:

Revenue Recapturei is the amount of fee revenue to be 
recaptured for each type of manifest submission ``i'';
(NiYear1 + NiYear2)Actual 
(NiYear1 + NiYear2)Est is the 
difference between actual manifest numbers submitted to the system 
for each manifest type during the previous two-year cycle and the 
numbers estimated when we developed the previous cycle's fee 
schedule; and
Feei(Ave) is the average fee charged per manifest type 
over the previous two-year cycle.

    By factoring the average fee times the difference between manifest 
numbers actually collected and the manifest numbers estimated, the 
proposed adjuster would return to the program the revenues that were 
lost to the program because our estimates of manifest usage did not 
match actual experience during the two-year fee cycle. Of course, it is 
possible that this adjuster could also result in a negative adjustment 
and reduce fee revenues in the next fee cycle, because the Agency 
underestimated manifest numbers in the prior cycle and actually 
generated surplus revenue from the greater numbers actually submitted. 
In either case, this look back adjuster would attempt to reconcile 
actual manifest usage with estimates used to develop fee schedules, so 
as to restore revenue balance. EPA requests comment on the inclusion of 
this adjuster in the proposed fee trajectory methodology (If submitting 
comments on this issue, please use comment header: 6. Revenue Recovery 
Adjuster).
    A second revenue recapture adjuster we are proposing in this fee 
regulation is an adjuster aimed at recovering revenues lost on account 
of ``uncollectable'' manifests, that is, manifests for which the fees 
were not paid by the user when due or after fee collection activities. 
While EPA expects that most TSDFs will be current with their e-Manifest 
fee obligations, there is a possibility that despite the Agency's best 
efforts at collection of fees, and despite imposition of sanctions for 
non-payment, some manifest fee obligations may remain uncollectable. 
This revenue stability risk becomes more significant should fee 
payments occur predominantly as accounts receivable

[[Page 49088]]

for reimbursement of services, rather than as advance payments for 
manifest related services. Therefore, in order for EPA to ensure that 
we are able to maintain a fee program that accomplishes full cost 
recovery, we are proposing an adjuster that would recover revenue lost 
from the previous two-year fee cycle on account of uncollectable fees.
    This proposed adjuster for uncollectable fees would be expressed as 
follows:

Uncollectable Revenuei = (NiYear1 + 
NiYear2)UNCOLLECTABLE x Feei(Ave),


Where:

(NiYear1 + NiYear2)UNCOLLECTABLE is 
the sum of the number of uncollectable manifests of each type ``i'' 
over the previous two-year cycle, and
Feei(Ave) is the average fee charged for each manifest 
type ``i'' during the previous two-year cycle.

4. Requests for Comment
    EPA requests comment on the uncollectable manifest adjuster and the 
other adjusters and processes included in the proposed fee trajectory 
methodology. In particular, EPA requests comments responding to these 
questions:
     Do commenters generally agree with the trajectory 
proposal's emphasis on inflation, manifest usage estimates, and 
uncollectable manifests as the key sources of revenue instability that 
the adjusters should address? Are there other sources of revenue 
instability that are not addressed or could be addressed better by 
another methodology? (If submitting comments on this issue, please use 
comment header: 6. Revenue Recovery Adjuster)
     Do commenters agree that a two-year fee schedule revision 
cycle is desirable and practical for keeping pace with program cost 
changes? Do commenters agree that stability and avoidance of 
administrative burden are sound reasons for not adjusting fees annually 
or at some other frequency? Should fees be adjusted less frequently 
than every two years? (If submitting comments on this issue, please use 
comment header: 7. Two-Year Fee Schedule Revision Cycle)
     Do commenters agree that EPA's publication of fee schedule 
changes to the e-Manifest site 90 days prior to the effective date of 
fee schedule changes is sufficient notice to users of fee revisions? 
(If submitting comments on this issue, please use comment header: 8. 
90-Day Lead Time for Fee Schedule Changes)
     Do commenters agree with the use of the CPI-U to measure 
inflationary impacts on program costs between the first and second year 
of each fee schedule? Is there a different index or another measure of 
cost changes that would more accurately reflect the changes in the 
labor and IT commodities and services costs that are more 
representative of our e-Manifest program costs than the ``market 
basket'' of consumer goods and services which BLS tracks with the CPI? 
(If submitting comments on this issue, please use comment header: 5. 
Inflation Adjuster)
     Do commenters agree that uncollectable manifests are 
appropriate for inclusion in a revenue adjuster to be paid for as fee 
increments by those users who are timely with their fee payments? How 
else can EPA ensure full cost recovery in the face of the instability 
posed by those who might become delinquent in their payments? (If 
submitting comments on this issue, please use comment header: 6. 
Revenue Recovery Adjuster)

E. What manifest transactions warrant fee premiums?

1. Background
    The consideration of fee premiums touches upon several of the user 
fee design principles discussed previously. Specifically, the EPA must 
balance economic efficiencies of user fees (align users' fees with the 
costs of providing services) and the equity of the fee system 
(beneficiaries pay their fair share vs. ability to pay considerations), 
while assuring the adequacy of resulting revenues and minimizing the 
administrative burden of the fee system. Consequently, EPA prefers to 
keep the fee structure as simple as possible and balance the 
desirability of any fee premiums with the resulting complexity to the 
fee system and any resulting equity issues. Therefore, the EPA does not 
strongly favor adding fee premiums to the fee structure, unless there 
is a compelling basis for such premiums. The EPA believes fee premiums 
could be appropriate to recover e-Manifest system related costs where:
     The activity benefits a particular user to a significant 
extent;
     It is more equitable to charge that user for a service 
than to have the costs shared collectively;
     The cost of the premium service can be estimated 
accurately, and is not outweighed by collection costs; and
     The premium could deter undesirable activities or produce 
other favorable policy outcomes.
2. What fee premiums has EPA considered?
    Based on the factors discussed earlier, EPA has considered the 
following as candidates for e-Manifest user fee premiums:
     Complex manifest transactions that incur greater cost 
(e.g., rejections and discrepancies, consolidated loads, split loads),
     Submission to and return of stray documents from the paper 
center,
     Help desk encounters,
     Manifest Q/A and correction submissions, and
     An additional paper manifest use penalty.
    a. Complex Manifest Transactions. Complex manifest transactions 
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

[[Page 49089]]

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

[[Page 49090]]

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

[[Page 49091]]

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.
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    \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

[[Page 49092]]

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.
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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.

[[Page 49093]]

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.

[[Page 49094]]

    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%.
---------------------------------------------------------------------------

    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

[[Page 49095]]

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

[[Page 49096]]

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

[[Page 49097]]

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

[[Page 49098]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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

[[Page 49099]]

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,

[[Page 49100]]

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

[[Page 49101]]

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

[[Page 49102]]

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 protected], 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

[[Page 49103]]

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:

[[Page 49104]]

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

[[Page 49105]]

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 
operators of facilities whose activities receiving, rejecting, or 
managing federally- or state-regulated hazardous wastes or other 
materials bring them within the definition of ``user of the electronic 
manifest system'' under Sec.  260.10 of this chapter.


Sec.  264.1310  Definitions applicable to this subpart.

    The following definitions apply to this subpart:
    Consumer Price Index means the consumer price index for all U.S. 
cities using the ``U.S. city average'' area, ``all items'' and ``not 
seasonally adjusted'' numbers calculated by the Bureau of Labor 
Statistics in the Department of Labor.
    CROMERR Costs are the sub-category of Operations and Maintenance 
costs that are expended by EPA in implementing electronic signature, 
user registration, identity proofing, and copy of record solutions that 
meet EPA's electronic reporting regulations as set forth in the Cross 
Media Electronic Reporting Rule (CROMERR) as codified at 40 CFR part 3.
    Electronic Manifest Submissions means manifests that are initiated 
electronically using the electronic format supported by the e-Manifest 
system, and that are signed electronically and submitted electronically 
to the e-Manifest system by facility owners or operators to indicate 
the receipt or rejection of the wastes identified on the electronic 
manifest.
    EPA Program Costs mean the Agency's intramural and non-information 
technology extramural costs expended in the design, development and 
operations of the e-Manifest system, as well as in regulatory 
development activities supporting e-Manifest, in conducting its capital 
planning, project management, oversight and outreach activities related 
to e-Manifest, in conducting economic analyses supporting e-Manifest, 
and in establishing the System Advisory Board to advise EPA on the 
system. Depending on the date on which EPA Program Costs are incurred, 
these costs may be further classified as either system setup costs or 
operations and maintenance costs.
    Help Desk Costs mean the costs incurred by EPA or its contractors 
to operate the e-Manifest Help Desk, which EPA will establish to 
provide e-Manifest system users with technical assistance and related 
support activities.
    Indirect Costs mean costs not captured as Marginal Costs, System 
Setup Costs, or Operations and Maintenance Costs, but that are 
necessary to capture because of their enabling and supporting nature, 
and to ensure full cost recovery. Indirect costs include, but are not 
limited to, such cost items as physical overhead, maintenance, 
utilities, and rents on land, buildings, or equipment. Indirect costs 
also include the EPA costs incurred from the participation of EPA 
offices and upper management personnel outside of the lead program 
office responsible for implementing the e-Manifest program.
    Manifest Submission Type means the type of manifest submitted to 
the e-Manifest system for processing, and includes electronic manifest 
submissions and paper manifest submissions.

[[Page 49106]]

    Marginal Labor Costs mean the human labor costs incurred by staff 
operating the paper manifest processing center in conducting data key 
entry, QA, scanning, copying, and other manual or clerical functions 
necessary to process the data from paper manifest submissions into the 
e-Manifest system's data repository.
    Operations and Maintenance Costs mean all system related costs 
incurred by EPA or its contractors after the activation of the e-
Manifest system. Operations and Maintenance Costs include the costs of 
operating the electronic manifest information technology system and 
data repository, CROMERR Costs, Help Desk Costs, EPA Program Costs 
incurred after e-Manifest system activation, and the costs of operating 
the paper manifest processing center, other than the paper processing 
center's Marginal Labor Costs.
    Paper Manifest Submissions mean submissions to the paper processing 
center of the e-Manifest system by facility owners or operators, of the 
data from the designated facility copy of a paper manifest, EPA Form 
8700-22, or a paper Continuation Sheet, EPA Form 8700-22A. Such 
submissions may be made by mailing the paper manifests or continuation 
sheets, by submitting image files from paper manifests or continuation 
sheets, or by submitting both an image file and data file (e.g., XML) 
in a format supported by the e-Manifest system's paper processing 
center.
    System Setup Costs mean all system related costs, intramural or 
extramural, incurred by EPA prior to the activation of the e-Manifest 
system. Components of System Setup Costs include the procurement costs 
from procuring the development and testing of the e-Manifest system, 
and the EPA Program Costs incurred prior to e-Manifest system 
activation.


Sec.  264.1311  Manifest transactions subject to fees.

    (a) Fees shall be assessed on a per manifest basis for the 
following manifest submission transactions:
    (1) The submission of each electronic manifest that is 
electronically signed and submitted to the e-Manifest system by the 
owners or operators of receiving or designated facilities; and
    (2) The submission of each paper manifest submission to the paper 
processing center by owners or operators of receiving or designated 
facilities;
    (b) Supplemental fees shall be assessed on a per transaction basis 
for the following manifest related transactions:
    (1) The sorting, recovery, and return to sender of extraneous 
documents or other information submitted to the paper processing center 
with mailed copies of paper manifests by owners or operators of 
receiving or designated facilities, and
    (2) The processing of manifest data correction submissions by 
owners or operators of receiving or designated facilities, for the data 
entry, QA, and other activities necessary to process corrected data 
into the e-Manifest system.


Sec.  264.1312  User fee calculation methodology.

    (a) The fee calculation formula or methodology that EPA will use 
initially to determine per manifest fees is as follows:
[GRAPHIC] [TIFF OMITTED] TP26JY16.007

System Setup Cost = Procurement Cost + EPA Program Cost
O&M Cost = Electronic System O&M Cost + Paper Center O&M Cost + Help 
Desk Cost + EPA Program Cost + CROMERR Cost + LifeCycle Cost to 
Modify or Upgrade eManifest System Related Services
Where:

Feei represents the per manifest fee for each manifest 
submission type ``i,''
Nt refers to the total number of manifests completed in a year, and

    (b) If after 4 years of system operations, electronic manifest 
usage does not equal or exceed 75% of total manifest usage, EPA will 
transition to the following formula or methodology to determine per 
manifest fees:
[GRAPHIC] [TIFF OMITTED] TP26JY16.008

System Setup Cost = Procurement Cost + EPA Program Cost
O&M fully electronicCost = Electronic System O&M Cost + Help Desk 
Cost + EPA Program Cost + CROMERR Cost + LifeCycle Cost to Modify or 
Upgrade eManifest System Related Services
O&Mall otherCost = Electronic System O&M Cost + Paper Center O&M 
Cost + Help Desk Cost + EPA Program Cost + CROMERR Cost + LifeCycle 
Cost to Modify or Upgrade eManifest System Related Services

Ni refers to the total number of one of the four manifest submission 
types ``i'' completed in a year.
O&Mi Cost refers to the differential O&M Cost for each manifest 
submission type ``i.''

Sec.  264.1313  User fee revisions.

    (a) EPA will revise the fee schedules for e-Manifest submissions 
and related activities at two-year intervals, by utilizing the 
applicable fee calculation formula prescribed in Sec.  264.1312 and the 
most recent program cost and manifest usage numbers based on fiscal 
year data for the fiscal year beginning on October 1 of odd numbered 
years.
    (1) The fee schedules will be published to users through the e-
Manifest program Web site by March 1 of each even numbered year, and 
will cover the two-year period beginning on June 1 of that year and 
ending on May 31 of the next even numbered year two years later.
    (b) Inflation adjuster. The second year fee schedule shall be 
adjusted for inflation by using the following adjustment formula:

FeeiYear 2 = FeeiYear1 x 
(CPIYear2-2/CPIYear2-1),

Where

FeeiYear2 is the Fee for each type of manifest submission 
``i'' in Year 2 of the fee cycle,
FeeiYear1 is the Fee for each type of manifest submission 
``i'' in Year 1 of the fee cycle, and
CPIYear2-2/CPIYear2-1 is the ratio of the CPI 
published for the year two years prior to Year 2 to the CPI for the 
year one year prior to Year 2 of the cycle.

    (c) Revenue recovery adjusters. The fee schedules published at two-
year intervals under this section shall include adjustments to 
recapture

[[Page 49107]]

revenue lost in the previous two-year fee cycle on account of imprecise 
estimates of manifest usage and of uncollectable manifests.
    (1) The adjustment for imprecise estimates of manifest usage shall 
be calculated using the following adjustment formula to calculate a 
revenue recapture amount which will be added to O&M Costs in the fee 
calculation formula of Sec.  264.1312:

Revenue Recapturei = (NiYear1 + 
NiYear2)Actual -- (NiYear1 + 
NiYear2)Est x Feei(Ave),

Where

Revenue Recapturei is the amount of fee revenue recaptured for each 
type of manifest submission ``i,''
(NiYear1 + NiYear2)Actual -- 
(NiYear1 + NiYear2)Est is the 
difference between actual manifest numbers submitted to the system 
for each manifest type during the previous 2-year cycle, and the 
numbers estimated when we developed the previous cycle's fee 
schedule, and
Feei(Ave) is the average fee charged per manifest type 
over the previous two-year cycle.

    (2) The adjustment for uncollectable manifests shall be calculated 
using the following adjustment formula to calculate an Uncollectable 
Revenue recovery amount, which will be added to O&M Costs in the fee 
calculation formula of Sec.  264.1312:

Uncollectable Revenuei = (NiYear1 + 
NiYear2)UNCOLLECTABLE x Feei(Ave),

Where

(NiYear1 + NiYear2)UNCOLLECTABLE is 
the sum of the number of uncollectable manifests of each type ``i'' 
over the previous two-year cycle, and
Feei(Ave) is the average fee charged for each manifest 
type ``i'' during the previous cycle.


Sec.  264.1314  How to make user fee payments.

    (a) All fees required by this subpart shall be paid by the owners 
or operators of the receiving or designated facility (the facility) in 
response to an electronic invoice or bill identifying manifest-related 
services provided the user during the previous month and identifying 
the fees owed for the enumerated services.
    (b) All fees required by this subpart shall be paid to EPA by the 
facility electronically in U.S. dollars, using one of the electronic 
payment methods supported by the Department of the Treasury's Pay.gov 
online electronic payment service, or any applicable additional or 
successor online electronic payment service offered by the Department 
of Treasury.
    (c) All fees for which payments are owed in response to an 
electronic invoice or bill must be paid within 30 days of the date of 
the invoice or bill.


Sec.  264.1315  Sanctions for delinquent payments.

    (a) Interest. In accordance with 31 U.S.C. 3717(a)(1), delinquent 
e-Manifest user fee accounts shall be charged a minimum annual rate of 
interest equal to the average investment rate for Treasury tax and loan 
accounts (Current Value of Funds Rate or CVFR) for the 12-month period 
ending September 30th of each year, rounded to the nearest whole 
percent.
    (1) E-Manifest user fee accounts are delinquent if the accounts 
remain unpaid by the due date specified in the invoice or other notice 
of the fee amount owed.
    (2) Due dates for invoiced or electronically billed fee amounts 
shall be 30 days from the date of the electronic invoice or bill.
    (b) Financial penalty. In accordance with 31 U.S.C. 3717(e), e-
Manifest user fee accounts that are more than 90 days past due shall be 
charged an additional penalty of 6% per year assessed on any part of 
the debt that is past due for more than 90 days, plus any applicable 
handling charges.
    (c) Publication of delinquent payors' list. If e-Manifest user fee 
accounts remain past due for 120 days or more, EPA may include the 
facility responsible for the delinquent account on a List of Delinquent 
Payors that the Agency will maintain on the program's Web site or 
similar medium where e-Manifest program information is provided.
    (1) The information about delinquent payors shall include the name 
of the facility, the facility's EPA ID Number, and the amount of the 
delinquency at the time of the facility's inclusion on the List.
    (2) The facility shall be removed from the List of Delinquent 
Payors when it has been determined that the delinquency has been cured 
to the satisfaction of the Agency.
    (d) Compliance with manifest completion requirement. A manifest is 
fully complete when:
    (1) The manifest has been submitted by the owner or operator to the 
e-Manifest system, as either an electronic submission or a paper 
manifest submission, and
    (2) All user fees arising from the submission or correction of the 
manifest have been fully paid.

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

0
9. The authority citation for Part 265 is revised to read as follows:

    Authority:  42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, 6937, and 6939g.

Subpart E--Manifest System, Recordkeeping, and Reporting

0
10. Section 265.71 is amended by revising paragraph (j) and by adding a 
paragraph (l) to read as follows:


Sec.  265.71  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.  265.71(a)(2)(v). 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

[[Page 49108]]

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 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
11. Subpart FF is added to read as follows:

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

Sec.
265.1300 Applicability.
265.1310 Definitions applicable to this subpart.
265.1311 Manifest transactions subject to fees.
265.1312 User fee calculation methodology.
265.1313 User fee revisions.
265.1314 How to make user fee payments.
265.1315 Sanctions for delinquent payments.


Sec.  265.1300  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 
operators of facilities whose activities receiving, rejecting, or 
managing federally- or state-only regulated wastes or other materials 
bring them within the definition of ``user of the electronic manifest 
system'' under Sec.  260.10 of this chapter.


Sec.  265.1310  Definitions applicable to this subpart.

    The following definitions apply to this subpart:
    Consumer Price Index means the consumer price index for all U.S. 
cities using the ``U.S. city average'' area, ``all items'' and ``not 
seasonally adjusted'' numbers calculated by the Bureau of Labor 
Statistics in the Department of Labor.
    CROMERR Costs are the sub-category of Operations and Maintenance 
costs that are expended by EPA in implementing electronic signature, 
user registration, identity proofing, and copy of record solutions that 
meet EPA's electronic reporting regulations as set forth in the Cross 
Media Electronic Reporting Rule (CROMERR) as codified at 40 CFR part 3.
    Electronic Manifest submissions means manifests that are initiated 
electronically using the electronic format supported by the e-Manifest 
system, and that are signed electronically and submitted electronically 
to the e-Manifest system by facility owners or operators to indicate 
the receipt or rejection of the wastes identified on the electronic 
manifest.
    EPA Program Costs mean the Agency's intramural and non-information 
technology extramural costs expended in the design, development and 
operations of the e-Manifest system, as well as in regulatory 
development activities supporting e-Manifest, in conducting its capital 
planning, project management, oversight and outreach activities related 
to e-Manifest, in conducting economic analyses supporting e-Manifest, 
and in establishing the System Advisory Board to advise EPA on the 
system. Depending on the date on which EPA Program Costs are incurred, 
these costs may be further classified as either system setup costs or 
operations and maintenance costs.
    Help Desk Costs mean the costs incurred by EPA or its contractors 
to operate the e-Manifest Help Desk, which EPA will establish to 
provide e-Manifest system users with technical assistance and related 
support activities.
    Indirect Costs mean costs not captured as Marginal Costs, System 
Setup Costs, or Operations and Maintenance Costs, but that are 
necessary to capture because of their enabling and supporting nature, 
and to ensure full cost recovery. Indirect costs include, but are not 
limited to, such cost items as physical overhead, maintenance, 
utilities, and rents on land, buildings, or equipment. Indirect costs 
also include the EPA costs incurred from the participation of EPA 
offices and upper management personnel outside of the lead program 
office responsible for implementing the e-Manifest program.
    Manifest Submission Type means the type of manifest submitted to 
the e-Manifest system for processing, and includes electronic manifest 
submissions and paper manifest submissions.
    Marginal Labor Costs mean the human labor costs incurred by staff 
operating the paper manifest processing center in conducting data key 
entry, QA, scanning, copying, and other manual or clerical functions 
necessary to process the data from paper manifest submissions into the 
e-Manifest system's data repository.
    Operations and Maintenance Costs mean all system related costs 
incurred by EPA or its contractors after the activation of the e-
Manifest system. Operations and Maintenance Costs include the costs of 
operating the electronic manifest information technology system and 
data repository, CROMERR Costs, Help Desk Costs, EPA Program Costs 
incurred after e-Manifest system activation, and the costs of operating 
the paper manifest processing center, other than the paper processing 
center's Marginal Labor Costs.
    Paper Manifest Submissions mean submissions to the paper processing

[[Page 49109]]

center of the e-Manifest system by facility owners or operators, of the 
data from the designated facility copy of a paper manifest, EPA Form 
8700-22, or a paper Continuation Sheet, EPA Form 8700-22A. Such 
submissions may be made by mailing the paper manifests or continuation 
sheets, by submitting image files from paper manifests or continuation 
sheets, or by submitting both an image file and data file (e.g., XML) 
in a format supported by the e-Manifest system's paper processing 
center.
    System Setup Costs mean all system related costs, intramural or 
extramural, incurred by EPA prior to the activation of the e-Manifest 
system. Components of System Setup Costs include the procurement costs 
from procuring the development and testing of the e-Manifest system, 
and the EPA Program Costs incurred prior to e-Manifest system 
activation.


Sec.  265.1311  Manifest transactions subject to fees.

    (a) Fees shall be assessed on a per manifest basis for the 
following manifest submission transactions:
    (1) The submission of each electronic manifest that is 
electronically signed and submitted to the e-Manifest system by the 
owners or operators of receiving or designated facilities; and
    (2) The submission of each paper manifest submission to the paper 
processing center by owners or operators of receiving or designated 
facilities;
    (b) Supplemental fees shall be assessed on a per transaction basis 
for the following manifest related transactions:
    (1) The sorting, recovery, and return to sender of extraneous 
documents or other information submitted to the paper processing center 
with mailed copies of paper manifests by owners or operators of 
receiving or designated facilities, and
    (2) The processing of manifest data correction submissions by 
owners or operators of receiving or designated facilities, for the data 
entry, QA, and other activities necessary to process corrected data 
into the e-Manifest system.


Sec.  265.1312  User fee calculation methodology.

    (a) The fee calculation formula or methodology that EPA will use 
initially to determine per manifest fees is as follows:
[GRAPHIC] [TIFF OMITTED] TP26JY16.009

System Setup Cost = Procurement Cost + EPA Program Cost
O&M Cost = Electronic System O&M Cost + Paper Center O&M Cost + Help 
Desk Cost + EPA Program Cost + CROMERR Cost + LifeCycle Cost to 
Modify or Upgrade eManifest System Related Services

Where:

Feei represents the per manifest fee for each manifest 
submission type ``i,''
Nt refers to the total number of manifests completed in a year, and

    (b) If after 4 years of system operations, electronic manifest 
usage does not equal or exceed 75% of total manifest usage, EPA will 
transition to the following formula or methodology to determine per 
manifest fees:
[GRAPHIC] [TIFF OMITTED] TP26JY16.010

System Setup Cost = Procurement Cost + EPA Program Cost
O&Mfully electronicCost = Electronic System O&M Cost + Help Desk 
Cost + EPA Program Cost + CROMERR Cost + LifeCycle Cost to Modify or 
Upgrade eManifest System Related Services
O&Mall otherCost = Electronic System O&M Cost + Paper Center O&M 
Cost + Help Desk Cost + EPA Program Cost + CROMERR Cost + LifeCycle 
Cost to Modify or Upgrade eManifest System Related Services

Ni refers to the total number of one of the four manifest submission 
types ``i'' completed in a year.
O&Mi Cost refers to the differential O&M Cost for each manifest 
submission type ``i.''

Sec.  265.1313  User fee revisions.

    (a) EPA will revise the fee schedules for e-Manifest submissions 
and related activities at two-year intervals, by utilizing the 
applicable fee calculation formula prescribed in Sec.  265.1312 and the 
most recent program cost and manifest usage numbers based on fiscal 
year data for the fiscal year beginning on October 1 of odd numbered 
years.
    (1) The fee schedules will be published to users through the e-
Manifest program Web site by March 1 of each even numbered year, and 
will cover the two-year period beginning on June 1 of that year and 
ending on May 31 of the next even numbered year two years later.
    (b) Inflation adjuster. The second year fee schedule shall be 
adjusted for inflation by using the following adjustment formula:

FeeiYear2 = FeeiYear1 X (CPIYear2-2/
CPIYear2-1),

Where:

FeeiYear2 is the Fee for each type of manifest submission 
``i'' in Year 2 of the fee cycle,
FeeiYear1 is the Fee for each type of manifest submission 
``i'' in Year 1 of the fee cycle, and
CPIYear2-2/CPIYear2-1 is the ratio of the CPI 
published for the year two years prior to Year 2 to the CPI for the 
year one year prior to Year 2 of the cycle.

    (c) Revenue recovery adjusters. The fee schedules published at two-
year intervals under this section shall include adjustments to 
recapture revenue lost in the previous two-year fee cycle on account of 
imprecise estimates of manifest usage and of uncollectable manifests.
    (1) The adjustment for imprecise estimates of manifest usage shall 
be calculated using the following adjustment formula to calculate a 
revenue recapture amount which will be added to O&M Costs in the fee 
calculation formula of Sec.  265.1312:

Revenue Recapturei = (NiYear1 + 
NiYear2)Actual - (NiYear1 + 
NiYear2)Est x Feei(Ave),

Where:

Revenue Recapturei is the amount of fee revenue 
recaptured for each type of manifest submission ``i,''
(NiYear1 + NiYear2)Actual- 
(NiYear1 + NiYear2)Est is the 
difference between actual manifest numbers submitted to the system 
for each manifest type during the previous 2-year cycle, and the 
numbers estimated when we developed the previous cycle's fee 
schedule, and

[[Page 49110]]

Feei(Ave) is the average fee charged per manifest type 
over the previous two-year cycle.

    (2) The adjustment for uncollectable manifests shall be calculated 
using the following adjustment formula to calculate an Uncollectable 
Revenue recovery amount, which will be added to O&M Costs in the fee 
calculation formula of Sec.  265.1312:

Uncollectable Revenuei = (NiYear1 + 
NiYear2)UNCOLLECTABLE x Feei(Ave),

Where:

(NiYear1 + NiYear2)UNCOLLECTABLE is 
the sum of the number of uncollectable manifests of each type ``i'' 
over the previous two-year cycle, and
Feei(Ave) is the average fee charged for each manifest 
type ``i'' during the previous cycle.


Sec.  265.1314  How to make user fee payments.

    (a) All fees required by this subpart shall be paid by the owners 
or operators of the receiving or designated facility (the facility) in 
response to an electronic invoice or bill identifying manifest related 
services provided the user during the previous month and identifying 
the fees owed for the enumerated services.
    (b) All fees required by this subpart shall be paid to EPA by the 
facility electronically in U.S. dollars, using one of the electronic 
payment methods supported by the Department of the Treasury's Pay.gov 
online electronic payment service, or any applicable additional or 
successor online electronic payment service offered by the Department 
of Treasury.
    (c) All fees for which payments are owed in response to an 
electronic invoice or bill must be paid within 30 days of the date of 
the invoice or bill.


Sec.  265.1315  Sanctions for delinquent payments.

    (a) Interest. In accordance with 31 U.S.C. 3717(a)(1), delinquent 
e-Manifest user fee accounts shall be charged a minimum annual rate of 
interest equal to the average investment rate for Treasury tax and loan 
accounts (Current Value of Funds Rate or CVFR) for the 12-month period 
ending September 30th of each year, rounded to the nearest whole 
percent.
    (1) E-Manifest user fee accounts are delinquent if the accounts 
remain unpaid by the due date specified in the invoice or other notice 
of the fee amount owed.
    (2) Due dates for invoiced or electronically billed fee amounts 
shall be 30 days from the date of the electronic invoice or bill.
    (b) Financial penalty. In accordance with 31 U.S.C. 3717(e), e-
Manifest user fee accounts that are more than 90 days past due shall be 
charged an additional penalty of 6% per year assessed on any part of 
the debt that is past due for more than 90 days, plus any applicable 
handling charges.
    (c) Publication of delinquent payors' list. If e-Manifest user fee 
accounts remain past due for 120 days or more, EPA may include the 
facility responsible for the delinquent account on a List of Delinquent 
Payors that the Agency will maintain on the program's Web site or 
similar medium where e-Manifest program information is provided.
    (1) The information about delinquent payors shall include the name 
of the facility, the facility's EPA ID Number, and the amount of the 
delinquency at the time of the facility's inclusion on the List.
    (2) The facility shall be removed from the List of Delinquent 
Payors when it has been determined that the delinquency has been cured 
to the satisfaction of the Agency.
    (d) Compliance with manifest completion requirement. A manifest is 
fully complete when:
    (1) The manifest has been submitted by the owner or operator to the 
e-Manifest system, as either an electronic submission or a paper 
manifest submission, and
    (2) All user fees arising from the submission or correction of the 
manifest have been fully paid.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

0
12. The authority section for part 271 is revised to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6926, and 6939g.

0
13. Section 271.12 is amended by adding paragraph (k) to read as 
follows:
* * * * *
    (k) Requirements to pay user fees to EPA to recover EPA's costs 
related to the development and operation of an electronic hazardous 
waste manifest system.

[FR Doc. 2016-15845 Filed 7-25-16; 8:45 am]
BILLING CODE 6560-50-P