[Federal Register Volume 83, Number 2 (Wednesday, January 3, 2018)]
[Rules and Regulations]
[Pages 420-462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-27788]
[[Page 419]]
Vol. 83
Wednesday,
No. 2
January 3, 2018
Part II
Environmental Protection Agency
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40 CFR Part 260, 262, et al.
Hazardous Waste Management System; User Fees for the Electronic
Hazardous Waste Manifest System and Amendments to Manifest Regulations;
Final Rule
Federal Register / Vol. 83 , No. 2 / Wednesday, January 3, 2018 /
Rules and Regulations
[[Page 420]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 262, 263, 264, 265, and 271
[EPA-HQ-OLEM-2016-0177; FRL-9965-27-OLEM]
RIN 2050-AG80
Hazardous Waste Management System; User Fees for the Electronic
Hazardous Waste Manifest System and Amendments to Manifest Regulations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is
establishing by this regulation the methodology the Agency will use to
determine and revise the user fees applicable to the electronic and
paper manifests to be submitted to the national electronic manifest
system (e-Manifest system) that EPA is developing under the Hazardous
Waste Electronic Manifest Establishment Act. After the e-Manifest
system's implementation date, certain users of the hazardous waste
manifest will be required to pay a prescribed fee for each electronic
and paper manifest they use and submit to the national system so that
EPA can recover the costs of developing and operating the national e-
Manifest system. This final rule also announces the date when EPA
expects the system to be operational and available to users. EPA will
begin accepting manifest submissions and collecting the corresponding
manifest submission fees on this date.
In addition, this action announces final decisions and regulations
relating to several non-fee related matters that were included in the
proposed rule. This includes modifying the existing regulations to:
allow changes to the transporters designated on a manifest while the
shipment is en route; describe how data corrections may be made to
existing manifest records in the system; and amend the previous e-
Manifest regulation (the One Year Rule) to allow the use, in certain
instances, of a mixed paper and electronic manifest to track a
hazardous waste shipment.
DATES: This final rule is effective on June 30, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OLEM-2016-0177. All documents in this docket are listed in
the www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., confidential business
information (CBI) or other information for which disclosure is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically at www.regulations.gov or in hard copy
at the EPA Docket Center Reading Room. Please see https://www.epa.gov/dockets/epa-docket-center-reading-room or call (202) 566-1744 for more
information on the Docket Center Reading Room.
FOR FURTHER INFORMATION 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?
This rule affects those entities required to use the hazardous
waste manifest, a regulated universe that includes approximately 80,000
federally regulated entities, and an equal or greater number of
entities handling state-only regulated wastes in at least 45 industries
and is expected to result in a net cost savings for them amounting to
$66 million per year, when discounted at 7% and annualized over 6
years. Further information on the economic effects of this action can
be found in section IV of this preamble. These industries are involved
in generating, transporting, and receiving several million tons
annually of wastes that are hazardous under Subtitle C of the Resource
Conservation and Recovery Act (RCRA), or, are regulated by states and
also are subject to tracking with the RCRA hazardous waste manifest.
EPA estimates that these entities currently use between three and five
million hazardous waste manifests (EPA Form 8700-22) and continuation
sheets (EPA Form 8700-22A) to track RCRA hazardous and state-only
regulated wastes from generation sites to off-site receiving
facilities. The affected entities include hazardous waste generators,
hazardous waste transporters, and owners or operators of treatment,
storage, and disposal facilities (TSDFs), as well as the corresponding
entities that handle state-only regulated wastes subject to tracking
with the RCRA manifest.
However, the user fee obligations that are the primary focus of
this final rule will mostly affect a subset of these regulated
entities, particularly, the several hundred commercial RCRA TSDFs and
the corresponding receiving facilities for state-only regulated wastes
under RCRA manifests. As explained in section III.A. of this preamble,
this final rule focuses the payment and collection of e-Manifest
related user fees on these several hundred commercial TSDFs and state-
only waste receiving facilities because EPA concludes that this is the
most effective and efficient means for collecting user fees via the e-
Manifest system. The final rule action includes a tentative fee
schedule for the initial two years of system operations, based on the
most current projections of program costs available to the Agency at
the time of development of this final rule action. EPA will update the
tentative fee schedule with a final fee schedule for the initial two
years of system operations when we obtain more complete program cost
data, and we will publish the final fee schedule to the e-Manifest
program's website 90 days prior to the system launch. The affected
entities and categories include, but are not necessarily limited to:
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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.
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This table provides a guide for readers regarding the entities that
will be regulated by this action. The table lists the types of entities
that EPA is aware to be involved in the activities affected by the RCRA
manifest and regulated by this action. Other types of entities not
listed in this table also could be regulated by this final rule. To
determine whether your entity is regulated by this action, you should
carefully examine the applicability criteria found in title 40 of the
CFR parts 260, 262, 263, 264, and 265. If you have questions regarding
the applicability of this action to a particular entity, consult the
persons listed in the FOR FURTHER INFORMATION CONTACT section.
[[Page 421]]
B. What action is the Agency taking?
The Agency is publishing its final rule action announcing
requirements that establish the methodology and process that EPA will
use to determine and revise the e-Manifest user fees that EPA has
determined to be necessary to recover the costs of developing and
operating the national e-Manifest system. These include the costs of
processing data from both electronic and paper manifests that will be
submitted to the national e-Manifest system after the system's
implementation date. The Agency also is announcing final decisions on
several non-fee related proposals that affect the use of the manifest
and manifest data quality, including changes to designated transporters
during transportation, a process for manifest data corrections, and the
circumstances under which EPA will allow a ``hybrid'' or mixed paper/
electronic manifest to be used to track a specific shipment.
C. What is the Agency's authority for taking this action?
The authority to issue this rule is found in sections 1002,
2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act (RCRA), and as
amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901,
6906 et. seq., 6912, 6921-6925, 6937, and 6938, and as further amended
by the Hazardous Waste Electronic Manifest Establishment Act, Public
Law 112-195, section 6939g.
D. Effective Date
This final rule will be effective on June 30, 2018, the date on
which EPA plans to launch and begin the operation of the e-Manifest
system. This is the date when EPA will implement all e-Manifest Act
regulations, including the requirements of this final rule, and the
requirements of the One Year Rule that EPA issued on February 7, 2014.
This final rule is being published with an accelerated effective date
to coincide with the launch of the e-Manifest system on June 30, 2018.
On that date, EPA will begin collecting fees to recover the costs of
developing and operating the system.
Under 40 CFR 3.2(a)(2), electronic reporting of documents required
under title 40 of the Code of Federal Regulations (CFR) may occur after
EPA has first published a document in the Federal Register announcing
that EPA is prepared to receive, in electronic form, documents required
or permitted by the identified part or subpart of title 40. By this
final rule action, EPA is announcing that it is prepared to receive
electronic hazardous waste manifests, as well as certain paper manifest
copies that continue in use after the e-Manifest system's
implementation date, through the national e-Manifest system. The
electronic manifests will be accepted by e-Manifest as the electronic
document substitutes for the paper manifest and continuation sheet
forms (EPA Forms 8700-22 and 8700-22A) that are described in 40 CFR
part 262, subpart B (hazardous waste generators), 40 CFR part 263,
subpart B (hazardous waste transporters), and subpart E of 40 CFR parts
264 and 265 (owners and operators of hazardous waste treatment,
storage, and disposal facilities). The implementation and compliance
date on which EPA plans to begin receiving these electronic manifest
and related paper manifest copies is June 30, 2018. This is the date
that EPA expects to begin e-Manifest system operations, and begin both
the collection of manifests and the collection of user fees for
manifest submissions required under this final rule. EPA is also
clarifying that the June 30, 2018, implementation date for e-Manifest
is limited to the collection of domestic hazardous waste manifests and
domestic shipments of state-only regulated waste subject under state
law to the RCRA manifest. EPA will not begin the collection of export
manifests described in subpart H of 40 CFR part 262 on the June 30,
2018, e-Manifest system implementation date. EPA will announce the
implementation and compliance date for the electronic submission of
export manifests in a separate notice to be issued in the future, when
EPA is ready to collect those documents electronically and assess the
appropriate fee for their processing. Until that occurs, export
manifests should continue to be completed as paper documents.
II. Background
EPA published a detailed background discussion providing context
for the e-Manifest User Fee rulemaking in the proposed rulemaking
action. See 81 FR 49072 at 49074-76 (July 26, 2016). EPA incorporates
that detailed background discussion into this document for purposes of
this final rule, and refers readers to that proposed rulemaking rather
than reprinting all of it in this final rule document. For this action,
EPA will summarize key points from the earlier background discussion:
In 2012, Congress enacted the Hazardous Waste Electronic
Manifest Establishment Act (e-Manifest Act). The e-Manifest Act
required EPA to establish a national electronic manifest system, the
development of which would be initially funded by annual
appropriations, and ultimately funded by user fees, which would both
offset the system's development costs, as well as the costs of
operating, maintaining, and upgrading the system.
The e-Manifest Act further required EPA to develop
implementing regulations for electronic manifesting within one year of
enactment, and to establish a nine-member System Advisory Board to make
recommendations to EPA on the performance of the system.
Section 2(c) of the e-Manifest Act conferred broad
discretion to EPA to impose on users of the system ``such reasonable
service fees as the Administrator determines to be necessary'' to pay
all system related costs, including the costs of processing data from
any paper manifests that continue to be used after the system
implementation date, as the e-Manifest Act allows users the option to
continue to use paper manifests. This is the principal source of
statutory authority for this action and its user fee methodology.
Section 2(d) of the e-Manifest Act authorized the
establishment of a special System Fund in the U.S. Treasury for the
deposit of e-Manifest user fees. Funds deposited in the System Fund may
be spent by EPA for system related costs to the extent provided in
annual appropriations acts, but such funds can only be spent on e-
Manifest related costs.
EPA issued its first implementing regulation on electronic
manifesting on February 7, 2014 (79 FR 7518-7563). This regulation,
referred to as the ``One Year Rule'' because of the e-Manifest Act's
mandate to publish the regulation within one year of enactment,
established the legal and policy framework for the use of electronic
manifests, and prescribed the conditions under which electronic
manifests are the full legal equivalent of paper manifest forms for all
RCRA purposes. The One Year Rule also codified key scope and
consistency provisions included in the e-Manifest Act. The One Year
Rule did not address e-Manifest user fees, instead deferring regulatory
action on user fees until this separate e-Manifest User Fee rulemaking.
EPA relied extensively on two Federal guidance documents
on user fee design to develop its e-Manifest User Fee methodology: (1)
OMB Circular A-25, a memorandum to Executive Departments and agencies
addressing ``user charges,'' and (2) user fee design guidance found in
the United States Government Accountability Office
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(GAO) Report No. GAO-08-386SP, Federal User Fees, A Design Guide, (May
2008).
The OMB Circular A-25 guidance was relied upon
substantially for the following principles used in formulating the
final rule user fee methodology: (1) The imposition of user fees on
those recipients of the special benefits from federal activities, but
not recipients of incidental benefits; (2) the requirement that user
fees should accomplish full cost recovery; (3) the explanation of the
various types of direct and indirect costs that can be recovered by
user fees; (4) the general policy that user fees be instituted through
the promulgation of regulations; and (5) the policy that user fees be
reviewed biennially, to provide assurance that fees are adjusted to
reflect changes in program costs.
The GAO Federal User Fees Design guide also was heavily
relied upon in developing the rationale for this final rule user fee
methodology, particularly with respect to: (1) Collecting fees so as to
strike an appropriate balance between ensuring compliance with fees and
minimizing administrative costs; (2) the manner of reviewing and
updating user fees so they remain aligned with actual program costs and
activities, and are adjusted for changes in program costs; and (3)
balancing several key outcomes involved in fee design, including: the
economic efficiency of the program's user fees; the equity of the fee
system in ensuring that beneficiaries pay their fair share while not
disregarding their ability to pay; the adequacy of resulting revenues
to pay all known program costs and to keep pace with inflation and
other changes to program cost; and the administrative burden of the
fees, including the balancing of the fee compliance costs with the
costs of their collection and enforcement.
III. Detailed Discussion of the Final Rule
A. Which users of manifests and manifest data will be charged user
fees?
1. Background
In addressing this issue in the proposed rulemaking, EPA
acknowledged that there were two distinct classes of users who might
become involved with the e-Manifest system. First, there are the
regulated community members, e.g., the hazardous waste generators,
transporters, and receiving facilities (e.g., RCRA TSDFs) who are
required to use the manifest in connection with tracking a hazardous
waste shipment in which they are involved and are named as one of the
handlers on the manifest. Second, there are the data consumers, e.g.,
members of the public or state and local governments that might wish to
access e-Manifest in order to obtain information about wastes and
shipments of interest to them in their capacity as a data consumer, but
not as a member of the regulated community. Since the beginning of the
planning for e-Manifest, EPA has indicated that it considered public
access and transparency important functions of an e-Manifest system.
EPA has planned to develop a public facing module in e-Manifest to
provide such data access, with certain restrictions on that access.
However, the interest in public access to data is a secondary interest,
and it is clear that the regulatory community users are the primary
community of interest served by e-Manifest, and that they obtain the
primary services and benefits from the system.
In the notice of proposed rulemaking, EPA proposed that the primary
beneficiaries of e-Manifest--the regulatory community users within the
definition of ``user'' in the e-Manifest Act--would at a threshold
level be the community of users potentially subject to user fee
obligations. Thus, for this initial level of fee eligibility, EPA
proposed to limit the imposition of user fees to the members of the
regulatory community that must use the RCRA manifest, as a matter of
regulatory compliance under federal or state law, for tracking the off-
site shipments of hazardous waste or state-only regulated waste between
generation sites and the facilities where such wastes are received for
management. EPA did not propose to impose fees on the community of data
consumers, i.e., members of the general public, accessing the system
only to obtain data about wastes and waste shipments of interest to
them. In the proposed rule, we explained that excluding the public from
user fee payments was consistent with OMB Circular A-25 policy to not
charge incidental beneficiaries of a service a user fee. We also
explained that this proposal was motivated by the desire to avoid the
large administrative burden of establishing payment accounts for all
those members of the public who might access the system, and of
processing payments for such a large and potentially diverse community.
EPA believes that the costs of providing data access to the public
would be fairly modest relative to the cost of servicing the regulatory
community. The funding result under the proposed rule would thus have
the costs of providing the public with access to data funded as an
incremental increase in the fees charged to the regulated users.
As a second proposal on the scope of fee obligations, EPA proposed
to further restrict the payment of e-Manifest fees to the approximately
400 RCRA receiving facilities (TSDFs) that receive waste from off-site,
as well as the corresponding receiving facilities of state-only
regulated wastes tracked under RCRA manifests under state law. EPA
explained in the notice of proposed rulemaking (NPR), that it
considered the submission of the final, signed manifest to the e-
Manifest system by the receiving facility designated on the manifest to
be the primary ``billable event'' in the e-Manifest system that would
give rise to a user fee obligation. The effect of this second aspect of
the proposal would be to limit fee obligations and payments to the
receiving facilities on manifests, and to generally exclude the other
regulatory community ``users'' from fee payment obligations. This
aspect of the proposed rule was premised on the goal of simplifying the
fee system, and avoiding the potentially large administrative burden of
establishing payment accounts and collecting fee payments from 100,000
or more generators or other regulated users. It was assumed that the
receiving facilities assessed these fees could choose to pass these
fees through to the generator customers as a part of their service
agreement, thus balancing the equities and burdens of the fee system
without EPA's further intervention.
2. Comment Analysis
On the issue of public access and its funding, we received numerous
comments from state agencies supporting the exclusion of states and the
general public from the requirement to pay fees, and supporting the
imposition of e-Manifest fees on the regulated users of the system.
However, there were several comments from hazardous waste TSDFs and
their trade organizations objecting to the proposed rule's approach to
funding public access through an incremental increase in these
facilities' fees. These TSDF commenters argued that the e-Manifest
Act's definition of ``user'' was intended to limit system access to the
regulated community and not afford access to the public. The TSDF
commenters suggested that EPA should be responsible for funding public
access through another means or another EPA appropriation, perhaps
treating public access requests through the Freedom of Information Act
or FOIA. As a final matter, several of these TSDF commenters also
questioned EPA's assumption that the cost of public access would be
modest.
[[Page 423]]
On the issue of the proposed ``billable event,'' all commenters
supported the proposal limiting fee obligations to the receiving
facilities designated on the manifest, and classifying the submission
of the final copy of the manifest signed by the receiving facility as
the primary billable event in the system. The states, generators, and
receiving facilities that commented on the proposed rule all supported
EPA's rationale that the balancing of administrative efficiency and
simplifying the fee payment system justified limiting the fee
obligations to the manifest's receiving facilities. To make their
support of this proposal clearer, several of these commenters suggested
that EPA remove from the existing part 262 (generator) and part 263
(transporter) regulations all vestiges of regulatory language from the
first e-Manifest rule suggesting EPA might impose user fees on
generators and transporters. Several commenters also suggested that EPA
should be consistent in drafting the final rule, and avoid using the
terms TSDF, receiving facility, and designated facility interchangeably
in the regulatory language, as these terms do not have the same scope
of coverage.
Finally, in connection with the proposed rule's discussion of the
public access issue and the proposed rule's focus on receiving
facilities for the rule's fee obligations, EPA received several
additional comments raising significant issues for the Agency to
consider.
A RCRA receiving facility and the Department of Defense submitted
comments raising the concern that unfettered public access to e-
Manifest might enable data mining from the system by those with
malevolent intent. These comments raised a concern that those
conducting data mining for illicit purposes could discern information
about particular wastes involving chemicals of concern, or about the
sites managing them, or patterns in the movement of wastes that could
be weaponized or otherwise vulnerable if diverted. One commenter
suggested there should be a homeland security basis for excluding
public access to such information, and identified the homeland security
list of chemicals of interest in 6 CFR part 27, appendix A, as a
resource that might be helpful in excluding hazardous waste and
manifest data potentially posing a Homeland Security risk. The
Department of Defense also raised a concern that generator site
information and the aggregate waste information gleaned from e-Manifest
could in some instances constitute classified information.
In addition, EPA received several helpful comments that pointed out
some weaknesses or challenges that will arise from the proposed rule
approach and its focus on the final manifest submissions by receiving
facilities as the billable event that will trigger fee obligations. As
one example of such a challenge, several industry and state agency
commenters noted that there may be significant numbers of receiving
facilities, particularly those facilities receiving state-only
regulated wastes, which lack RCRA permits and lack EPA Identification
Numbers. Examples cited in the comments were facilities managing
industrial wastes, used oil, wastes regulated as special wastes by the
states, or conditionally exempt small quantity generator (CESQG) \1\
wastes regulated more stringently by states and subject to manifests
under state law. If EPA is intending to track the billable manifests
from receiving facilities by keying on the EPA Identification Number of
the receiving facility, EPA will need to issue unique identification
numbers to these facilities or otherwise address how these receiving
facilities and their manifests will be tracked uniquely and billed for
services in e-Manifest.
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\1\ Conditionally exempt small quantity generators are now known
as Very Small Quantity Generators.
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Other helpful comments received in response to the proposed
billable event were several industry and state agency comments noting
that there were two other types of waste shipment transactions with
manifests that did not lend themselves to the proposed approach of
billing the receiving facility for the manifest. The two transaction
types cited as posing particular challenges were: (1) Rejected wastes
returned under manifests to generators, as the ``receiving facility''
for such return shipments are generators and not the conventional
permitted facilities (e.g., RCRA TSDFs); and (2) hazardous wastes
exported from the U.S., as the manifests for exported hazardous wastes
are not received by a domestic receiving facility, but are instead
received by foreign consignees that are beyond the jurisdiction of the
U.S. to compel a final manifest submission and fee payment. These
commenters questioned how EPA would address these transactions in the
final rule.
3. Final Rule Decisions
a. How will public access to data be funded?
In this final rule, EPA is sustaining the proposed rule's position
that public access is an incidental benefit of the system, and that the
regulatory community users obtain the primary and major benefits of e-
Manifest services. Since members of the public are at best incidental
beneficiaries, EPA has decided not to charge members of the public a
fee for access to manifest data from the public facing module of e-
Manifest. This decision is consistent with the policy announced in OMB
Circular A-25, which generally excludes incidental beneficiaries of
services from service charges, and instead requires the primary
beneficiaries to cover these costs. Therefore, as we proposed in the
July 2016 NPR, the regulatory community users--the primary
beneficiaries of e-Manifest--will fund the costs of public access
through an incremental increase in their user fees. EPA concludes that
this policy best effectuates the program's transparency goal with
respect to manifest data, and avoids discouraging the public's access
by the imposition of a fee on such access. EPA remains convinced that
the incremental increase in users' fees to fund public access will be
modest. This further focuses cost recovery and collections on the
several hundred receiving facilities, thereby avoiding the complexity
and administrative burden of attempting fee collections from members of
the public.
b. Which regulatory community users will pay fees?
Second, for this final rule, EPA has decided to sustain the
proposed rule's approach of focusing the fee payment obligations of the
regulatory community users on only the receiving facilities named on
manifests. The final rule therefore refines the user fee obligation by
excluding generators, transporters, and entities other than receiving
facilities designated on manifests from the rule's user fee
requirements. The commenters on the proposed rule expressed unanimous
support for this proposal, and EPA concludes that it is much more
practical and efficient administratively to focus fee collections and
payments in the system on the several hundred hazardous waste and
state-only regulated waste receiving facilities, and to define the
``billable event'' giving rise to a fee obligation in the system as the
submission of the final manifest copy signed by these receiving
facilities.
EPA is further clarifying that with respect to the continued use of
paper manifests, the preferred means of submission to the system by
receiving facilities is a data file (e.g., JAVA Script Object Notation
(JSON) file) presenting the data from these paper manifests. Such data
file submissions will eliminate much of the manual
[[Page 424]]
processing of these manifests, including opening and sorting mail, and
the very labor intensive process of manually keying data from paper
manifests into the data system. Receiving facilities may submit their
data files from completed, ink signed paper manifests either
individually or as a batch submission. Whether submitted individually
or in a batch upload, the receiving facility must also submit an image
file of each manifest that is included in the data file upload. At the
time of submission of the individual or batch file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
and belief, the data and images submitted are accurate and complete,
and that the facility acknowledges that it is obligated to pay the
appropriate per manifest fee for all the manifests included in the
submission. These data file upload requirements are spelled out in
Sec. Sec. 264.1311(c) and 265.1311(c) in this final rule.
c. How will the rule address homeland security risks?
The Agency acknowledges the several public comments raising the
concern that unfettered public access to manifest data might enable
those with malevolent intent to obtain data from e-Manifest that might
pose a homeland security risk. EPA believes that the homeland security
risk posed by public access to e-Manifest is minimal for the majority
of manifested hazardous waste shipments, because few hazardous wastes
are likely to be found in forms and circumstances that would make them
attractive to terrorists, and because public access to data through e-
Manifest will in all cases be delayed for a period of 90 days after
receipt of hazardous wastes at the receiving facility designated on the
manifest. However, commenters indicated that the 90-day delay in public
access might not mitigate all such security risks, since even with
delayed access to manifest data, a terrorist with system access could
perhaps discern shipment patterns for particular chemical wastes of
concern and the generators and facilities handling them. Thus,
commenters suggested that EPA take a more proactive position to guard
against homeland security risks posed by data disclosures from e-
Manifest. In particular, as a means to identify RCRA hazardous waste
shipments that might pose a security risk, the commenters suggested
that EPA utilize the Department of Homeland Security's (DHS's)
Chemicals of Interest, a screening tool for chemical security risks
that DHS has published in appendix A to its 6 CFR part 27 regulations
pertaining to the security of the nation's chemical facilities.
EPA consulted with the DHS to determine if the information that
will be publicly accessible from e-Manifest poses a significant
chemical security risk, and if so, the action the Agency should take to
mitigate that risk. DHS concluded that there was a plausible chemical
security risk posed by unrestricted public access to data in e-
Manifest, and the agencies collaborated on a strategy to mitigate that
risk.
EPA believes that the appendix A Chemicals of Interest list and
screening tool can be applied to the hazardous wastes and facilities
covered by DHS's chemical security regulations to aid EPA in
identifying a solution to the security concerns raised by commenters.
Rather than duplicating the efforts of DHS in this area, or perhaps
developing a conflicting approach, EPA is relying upon the expertise of
DHS, the DHS chemical security regulations, and the DHS Chemicals of
Interest (COI) appendix to flag those manifested waste shipments and
the data that should be withheld from public disclosure by e-Manifest
to avoid the release of information that could plausibly be used to
harm the homeland.
First, it is significant that DHS has previously determined that
the security risks addressed in its 6 CFR part 27 regulations are only
potentially presented by a narrow subset of RCRA solid and hazardous
wastes. In promulgating the appendix A COI list in November 2007, DHS
determined that most RCRA solid and hazardous wastes would not be found
in forms or circumstances that would make them attractive to
terrorists, with the result that most RCRA wastes are excluded from the
COI screening process for chemical security risks. See 72 FR 65397 at
65398 (November 20, 2007). However, DHS concluded that a subset of RCRA
hazardous wastes--the so-called ``P-List'' and ``U-List'' wastes
consisting of the discarded commercial chemical products and related
wastes identified in 40 CFR 261.33--should be subject to screening as
COI for chemical security risks. DHS concluded that only these P-List
and U-List wastes are covered by the 6 CFR part 27 screening process
for COI, because the discarded commercial chemical products, off-
specification species, and other such wastes were likely to be just as
attractive to terrorists as the chemical products themselves. Id. Thus,
our consideration of homeland security risks potentially posed by
public access to manifest data should, in the first instance, be
limited to a consideration of those manifests for the P-List and U-List
wastes with chemical names that also appear on the list of COI in the
appendix A to the DHS's 6 CFR part 27 regulation.
Under the DHS chemical security regulations, the COI appendix is
used as an initial screening tool for identifying high risk chemical
facilities. The COI appendix identifies for each listed chemical
substance a Screening Threshold Quantity (STQ) and minimum
concentration that apply to each of several modes of vulnerability
(release, theft, sabotage) and the related security issues (toxic,
flammable, or explosive releases; theft enabling use of chemical
weapons or weapons of mass effect; sabotage, etc.). The purpose of the
COI list and the STQs published for the relevant security issues is to
screen for those chemicals that if released, stolen, diverted, and/or
contaminated, have the potential to create significant human life and/
or health consequences.
Moreover, the presence of a COI at a facility at quantities
exceeding the STQ is not itself a trigger for whether that facility is
a ``high risk'' or ``covered facility'' within the meaning of the part
27 DHS chemical security regulations. Rather, the presence of a COI
chemical at or above the STQ is the threshold for determining when a
facility must be evaluated further by DHS for the chemical security
risks at that facility. Exceeding an STQ triggers the requirement for
the facility to submit to DHS a Top-Screen document. Only after DHS has
gathered additional information through the Top Screen will DHS make a
determination whether the facility handling that COI chemical is a
``high risk'' facility and must comply with the substantive
requirements of the part 27 regulations. These requirements include the
preparation and submission to DHS of a Security Vulnerability
Assessment and a Site Security Plan.
While EPA would ideally have the information available to withhold
from public disclosure the manifest associated only with ``high risk''
facilities, the Agency is not in a position to determine whether
particular facilities associated with P-List and U-List wastes that are
COI are high risk for chemical security issues. However, in order to be
protective respecting any plausible chemical security risk at
facilities with manifested hazardous wastes, the Agency will apply the
COI list screening tool broadly to prevent access to information on
chemical wastes by those who might have an intent to harm the homeland.
Therefore, in this final rule, EPA is clarifying that the e-
Manifest system will withhold from public access
[[Page 425]]
specific data from those manifests related to chemical facilities that
handle P-List and U-List wastes that are also included on the appendix
A COI list. For manifests that include such chemical wastes, the e-
Manifest system will withhold from disclosure to the public-facing
module of e-Manifest the following data items: The chemical waste name
and specific P- or U-List waste code, the quantity of such wastes
included in the shipment, and the date of the shipment. The shipping
description for these chemical wastes will instead bear the generic
information ``P-List or U-List waste'' in the public facing e-Manifest
system. After consultation with DHS, the two agencies have concluded
that these measures will be effective to prevent a terrorist from
obtaining information on which facilities might possess or manage
hazardous wastes that are COI at quantities of concern, as well as
prevent such a person from ascertaining information about shipment
dates and patterns of shipments involving these chemical wastes of
interest.
While the withholding of this limited data from a limited subset of
manifests may appear at odds with the Agency's transparency goals for
e-Manifest, EPA believes that the mitigation strategy described here
represents a reasonable accommodation with homeland security interests,
and is a prudent response to the concerns raised by commenters and DHS
officials.
d. How will the rule address state regulated facilities lacking EPA
Identification Numbers?
EPA acknowledges the comments identifying the problem posed by
tracking and collecting payments from state regulated receiving
facilities that currently lack EPA identification numbers. The e-
Manifest system will be programmed to track manifest activity and bill
facilities for their activities with reference to the identification
number of the receiving facility listed on each manifest. Therefore,
prior to or at the time of system implementation, EPA will need to
identify a means by which such facilities can obtain unique identifiers
that they can list on their manifests in the EPA identification number
field.
As part of the e-Manifest system development, EPA is including a
so-called ``non-handler IDs'' initiative aimed at ensuring that each
site has its own unique ID to use with its electronic manifests.
Further, this initiative is aimed at ensuring that each receiving
facility entered in e-Manifest will have a unique identity for tracking
and billing purposes. Sites that are listed in Item 8 of manifests as
designated or receiving facilities must obtain a handler ID from their
state or EPA and be listed in the RCRAInfo data system. These efforts
will require considerable outreach and cooperation between EPA, the
states regulating these facilities, and the receiving facilities to
maximize the inclusion of these sites in the system and ensure the
proper billing of their shipments.
e. How will the rule address out-of-state shipments of non-RCRA wastes?
The e-Manifest Act extends the scope of the e-Manifest program to
wastes subject to manifest tracking under federal RCRA or under state
law. Some state programs regulate more wastes than EPA regulates
federally under its Subtitle C regulations, and these additional non-
RCRA wastes are often referred to as state-only regulated wastes or as
``broader in scope'' wastes to indicate the more extensive coverage of
the state programs. These state-only regulated, non-RCRA wastes can
present manifest implementation and tracking challenges when shipments
involving these wastes cross state lines. While any non-RCRA waste
subject to a manifest under state law in the destination state should
be accompanied by a manifest in the destination state and thus would be
required by this final rule to be submitted by the receiving facility
to the e-Manifest system, the compliance situation is not as
straightforward for other out-of-state shipment scenarios. In
particular, the manifest requirements may be less clear for waste
shipments that originate in a state with more extensive or ``broader in
scope'' coverage and that are then shipped out-of-state to a
destination facility in a state where the waste is not regulated as
hazardous and does not require a manifest under the law of the
destination state. Prior to e-Manifest, EPA was not significantly
involved in the collection of manifests, and the question of supplying
manifest copies to states was governed exclusively by state law. EPA is
aware from discussions with state regulators that it was at times
problematic for the origination states to collect manifest copies from
out-of-state receiving facilities, and that it was often difficult to
ensure compliance with copy return requirements from facilities beyond
the territorial jurisdiction of the origination state.
Under the e-Manifest Act, however, any such jurisdictional barrier
has been eliminated by the Congress. In section 2(h) of the Act,
Congress prescribed a self-implementing provision that speaks directly
to the obligation of receiving facilities to close out and return
manifests to the e-Manifest system, if the waste being shipped for
management is subject to a manifest in either the origination state or
the destination state. This provision of the Act provides that if
either state's law requires that the waste is tracked through a
hazardous waste manifest, then the designated facility, regardless of
location, shall complete the facility portion of the manifest, sign and
date (i.e. complete the facility certification), and submit the
manifest to the system.
Thus, under the Act, for shipments that cross state lines, a
designated or receiving facility that receives waste shipments
accompanied by a manifest, and that manifest is required for the
tracking the waste shipment by either the law of the origination or
destination state, then the receiving facility must attend to that
manifest, must close it out by completing the facility portion and
signing and dating the facility certification on the manifest, and must
submit the signed, final copy of that manifest to the e-Manifest system
for processing. These requirements apply to receiving facilities under
federal law even if the law of the destination state would not require
a manifest for the wastes involved, and would not require the facility
to take any action with respect to the manifest required by the
origination state. States that desire the return copies of these
manifests can therefore rely upon this federal provision that ensures
consistency in the tracking of these shipments to their completion, and
they will not be as dependent on attempts to extend their state laws in
an extraterritorial fashion to out-of-state entities. Receiving
facilities can know that their supplying one final copy to the e-
Manifest system will satisfy any and all requirements for return copies
to tracking states, wherever they may be situated.
While the provisions of section 2(h) of the e-Manifest Act are
self-implementing, EPA is including an explanation of this statutory
provision in this final rule so that regulated entities will receive
ample notice of its requirements. EPA is including this summary of
section 2(h) under this preamble topic, because the effect of this
statutory provision is to classify the out-of-state waste shipments
subject to manifest tracking in either the origination state or
destination state as a mandatory type of manifest submission to e-
Manifest, and thus another type of ``billable event'' within the
meaning of this final rule. In other words, receiving facilities
subject to this statutory provision affecting interstate waste
shipments must submit the final manifest copies to e-Manifest, and pay
[[Page 426]]
the fee required by this final rule, based upon the type of submission.
The Agency is codifying the exact terms of section 2(h) of the Act
at 40 CFR 260.4. EPA has chosen to codify the statutory provision in
the general applicability subpart of part 260, because we expect that
many of the state-regulated facilities that will be affected by the
copy submission requirement of section 2(h) are not RCRA-permitted
TSDFs, and thus it would not be appropriate to include the codified
text of section 2(h) of the Act in the part 264 or part 265 regulations
that prescribe the unit location and management standards for RCRA
TSDFs. Part 260 is reserved for regulatory provisions of general
applicability, so EPA has chosen to codify the manifest copy return
requirement affecting interstate waste shipments at new Sec. 260.4.
f. How will the rule address hazardous waste exports and return
shipments of rejected hazardous wastes?
The commenters who identified these two atypical shipment types
raised valid points that the proposed rule approach of billing the
receiving facilities upon submission of the final signed manifest did
not lend itself well to the processing of hazardous waste export
manifests and manifests for rejected hazardous wastes that are being
shipped as returns to the generators of those wastes.
With respect to hazardous waste export shipments, EPA is not
including the tracking of export manifests described in subpart H of 40
CFR part 262 in the initial phase of e-Manifest system implementation.
As EPA is not accepting the submission of export manifests to the
system at this time, the Agency also is not requiring the payment of a
fee in connection with export manifests. EPA's system planning and
development efforts to date have been focused on the domestic manifest,
as the domestic shipments are the dominant use case for the hazardous
waste manifest.\2\ Moreover, EPA has not yet determined who in the
export shipment chain of custody (i.e., primary exporter vs.
transporter moving waste from U.S. or other entity) is best suited for
making the submission of the export manifest to the system and paying
the requisite processing fee; nor have we provided notice-and-comment
opportunities for the exporters or other handlers involved with these
shipments. Therefore, these determinations on export manifest
submissions and the payment of e-Manifest fees for export manifests
must await a future rulemaking connected with the planning for the next
phase of e-Manifest implementation. EPA plans to consult the Advisory
Board on future e-Manifest system enhancements and expansions, and the
future inclusion of export manifests is a topic that the Advisory Board
can help us address in our regular meetings with the Board. Until then,
current arrangements for handling export manifests and tracking
information on exports in other Agency tracking systems will continue.
---------------------------------------------------------------------------
\2\ EPA estimates that there are 3 to 5 million domestic
manifests produced each year for tracking waste shipments within the
U.S., whereas the export trade produces only about 23,000 manifests
annually.
---------------------------------------------------------------------------
With respect to rejected hazardous waste shipments, EPA has
addressed commenters' concerns in this final rule. With rejections,
there are generally two possible outcomes: (1) The rejected wastes are
re-shipped under a manifest that forwards the rejected wastes from the
rejecting facility to an alternate receiving facility (typically,
another RCRA TSDF) for management, or (2) the rejected wastes are re-
shipped under a manifest from the rejecting facility as a return
shipment back to the original generator of the waste.
The first outcome discussed previously--the forwarding of rejected
wastes to an alternate facility--is not unlike the conventional
manifested shipment of a waste to a permitted facility for management.
The key difference is that the rejected waste shipment originates with
the rejecting facility rather than the generator. Otherwise, forwarded
rejections are tracked through off-site transportation to another
receiving facility (typically another permitted TSDF), which completes
the tracking of the shipment by signing the manifest to certify to the
receipt of the wastes at the designated facility. Since forwarding
rejected wastes to an alternate facility is tracked on the manifest
like conventional waste shipments to a receiving facility, EPA can
treat them like conventional shipments insofar as the submission of the
final copy to the system and the payment of the fee. Therefore, for
rejected wastes that are forwarded to an alternate facility for
management, the alternate facility that signs the manifest to certify
the receipt of wastes must submit that final, signed copy to the system
and pay the applicable per manifest fee for that submission.
The unique circumstances surrounding the tracking of return
shipments requires a different treatment in this final rule. For return
shipments to generators, the rejecting facility is typically listed as
the generator on the return manifest, while the original generator of
the waste receiving its waste as a return is shown as the designated or
receiving facility. EPA's billable event approach of charging the
receiving facility of conventional shipments is premised on efficiency
and avoiding the inclusion of hazardous waste generators in the e-
Manifest payments system. It would conflict with this policy objective
if the return shipments were then to implicate generators in the fee
payment system, because they appear to be the receivers of return
shipments. Therefore, in the final rule, EPA is announcing a different
outcome applicable only to the return shipment scenario. For return
shipments to generators, the rejecting facility is responsible for the
payment of the fee for the return manifest, and the billable event for
this fee obligation is the rejecting facility's submission of the
original manifest signed by the facility to indicate the rejection and
the submission of a copy of the return shipment manifest that will
accompany the return shipment to the generator. Each rejection
resulting in a return shipment must therefore include the submission by
the rejecting facility of the original manifest signed by the rejecting
facility and a copy of the return shipment manifest. Thus, the
rejecting facility is paying the fee for the processing of the return
manifest when it submits the return manifest, as the return manifest
and its processing fee will not be collected by the system from the
generator.\3\ By handling return shipments in this manner, the fee
payments required in the system can be confined to the intended class
of conventional, permitted receiving facilities. While it may seem
irregular to charge the rejecting facility the e-Manifest fee for
return shipments of rejected wastes, a chargeback by the facility to
its generator customer is an option to balance the equities of the
resulting fees. EPA concludes that this decision allocates the fees for
rejected wastes most fairly, as the rejecting facility is charged the
fee only in the exceptional circumstances of return shipments to a
generator, while the alternate receiving facility will pay the fees for
the more conventional scenario of wastes being re-shipped and forwarded
to another receiving facility for management. Therefore, Sec. Sec.
264.1311(a)(3) and 265.1311(a)(3) of the final rule will include among
the manifest transactions that are subject to
[[Page 427]]
fees the submission by receiving facilities of manifests indicating a
rejected waste and a return shipment to the generator of that waste.
---------------------------------------------------------------------------
\3\ EPA notes that in those cases of a facility partially
rejecting wastes on the original manifest, with a return of rejected
wastes to a generator, the rejecting facility will be charged both
the processing fee for the original manifests for processing data on
the wastes received, as well as the fee for the return manifest to
the generator.
---------------------------------------------------------------------------
g. What other changes are being made in response to comments?
EPA accepts the comments asking for the removal of all vestiges in
the existing regulations that suggest EPA could impose e-Manifest fees
on generators under part 262 regulations or on transporters under part
263 regulations. These provisions were added during the promulgation of
the One Year Rule, which codified quite generally the authority
conferred under the e-Manifest Act to impose reasonable fees on all
classes of manifest ``users,'' a term which included hazardous waste
generators, transporters, and owners or operators of facilities
receiving wastes under manifests for management. Thus, EPA included in
the One Year Rule provisions in parts 260, 262, 263, 264/265, and 271
so that the codified authority to impose user fees could reach all the
possible users of the manifest. In the proposed User Fee Rule, 81 FR
49071, July 26, 2016, EPA stated that if the proposed rule's approach
to charging only receiving facilities user fees were to be adopted in
the final rule, EPA intended to eliminate from parts 262 and 263 those
provisions that would appear to extend user fee authority to generators
and transporters. (81 FR 49072 at 49078). Based on the supportive
comments in the docket, and the Agency's continued belief that
restricting fee collections to receiving facilities is sound policy,
EPA is finalizing this policy and thus removing all references in parts
262 and 263 to user fee obligations for generators and transporters of
hazardous waste. The result is the removal from the regulations of
existing Sec. Sec. 262.24(g) and 263.20(a)(8) addressing the
imposition of user fees on generators and transporters, respectively.
EPA also is accepting the comment noting that EPA had used the
terms TSDF, designated facility, and receiving facility interchangeably
in the proposed rulemaking, even though those terms do not have the
same scope of coverage. The term TSDF connotes a facility having a RCRA
treatment, storage, or disposal permit (or interim status), a class of
facilities that is narrower than the scope intended by the e-Manifest
Act. The commenter is correct in pointing out that the e-Manifest Act
intends broader coverage than RCRA TSDFs, since it is clear that many
receiving facilities of state-only regulated wastes lack RCRA permits,
and yet are facilities that could receive manifested wastes under state
law and thus be included in the coverage of the e-Manifest Act and the
e-Manifest system. The commenter also is correct that EPA should rely
on a term that expresses the intended scope of the e-Manifest Act, and
use that term consistently in the final rule. In response, EPA is
clarifying in this final rule that ``receiving facility'' is the term
with the proper breadth that will capture all facilities regulated by
the final User Fee Rule. The final rule will therefore focus on
receiving facilities, and not TSDF or designated facility, as both of
the latter terms are defined by current federal regulations more
narrowly to include only the RCRA permitted facilities. The term
receiving facility is sufficiently broad to include every type of
federally regulated or state regulated facility that could receive a
hazardous or state-only regulated waste covered by the e-Manifest Act.
Consistent with the broad scope of coverage intended by the e-
Manifest Act, the Agency is adding new authority in 40 CFR 260.5 to
cover the receiving facilities of state-only regulated wastes that are
not RCRA TSDFs. Under the final rule's Sec. 260.5, facilities
receiving state-only regulated wastes must comply with the requirements
of Sec. 264.71 on use of the manifest, the requirements of Sec.
264.72 on manifest discrepancies, and the requirements of subpart FF of
part 264 addressing the fee determination methodology, fee payment
methods, fee dispute procedures, and other fee requirements. EPA is
subjecting the state-only regulated waste receiving facilities to these
requirements under Sec. 260.5 so as to clarify the applicability of e-
Manifest Act requirements to these state regulated facilities that are
not RCRA TSDFs subject to part 264 or part 265.
EPA is also revising the manifest printing specification by adding
a Sec. 262.21(f)(8) that will require all printed manifests and
continuation sheets to bear a prominent notice to these facilities in
the bottom margin of the designated facility copy. This notice will
refer the facilities to the manifest instructions that explain their
requirements to complete and sign all manifests so received, to submit
these manifests to the e-Manifest system, and to pay to EPA the
appropriate fee for the processing of these manifests.
B. What other transactions will be subject to user fees?
1. Background
In the discussion earlier on the billable event in e-Manifest, EPA
clarified that the primary transaction in e-Manifest that will give
rise to a user fee obligation is the submission by the receiving
facility of the final copy of the manifest signed by the receiving
facility to certify to the receipt of the wastes or to any
discrepancies related to the shipment.\4\ However, in the proposed
rule, EPA proposed several additional types of manifest-related
transactions that might warrant a fee, and solicited comment on others
that might warrant a fee because of the complexity of some transactions
(e.g., rejections, split loads, consolidations), or to deter activities
that might incur large labor costs, such as a paper manifest premium or
a charge for help desk encounters. EPA explained in the proposed rule
that the several complex transactions did not warrant any premium fees,
because these transactions--rejected waste shipments, consolidated
shipments, or split shipments--tend to require additional manifests to
be completed and submitted, so the fees related to the additional
manifests would be collected as a matter of course without any premium
fees. For help desk encounters, EPA concluded that a per encounter fee
would discourage users from seeking assistance, and that it was more
appropriate to aggregate help desk costs and recover these as
operations and maintenance costs of the system to be shared by all
manifests.
---------------------------------------------------------------------------
\4\ As noted in section III.A.3.e in this preamble, another
billable transaction for receiving facilities is the submission of a
manifest showing in Item 18a a return shipment to a generator, where
a fee is charged for the return manifest.
---------------------------------------------------------------------------
In footnote 16 at 81 FR 49088 July 26, 2016, proposed rulemaking,
EPA stated that it intended to impose a per page transactional fee for
manifest continuation sheets. EPA believed the per page continuation
sheet fee was justified, as these continuation sheets were separate
forms styled similarly to manifest forms, and with many of the same
data elements. Particularly when submitted as paper forms for
processing, these continuation sheets could require the same sorts of
manual processing steps and quality assurance/quality control measures
as paper forms. Therefore, EPA stated in the proposed rule footnote
that each page of a continuation sheet would generate the same fee as
an individual manifest form.
Also, in the preamble section of the proposed rule addressing
possible fee premiums, EPA proposed a distinct transactional fee for
sorting and returning certain types of extraneous documents that
handlers might submit to the paper processing center with their
manifests, and for correction submissions sent to the system by
receiving facilities to enter corrections
[[Page 428]]
in the data-base of existing manifest records. See 81 FR 49072 at
49088, July 26, 2016. EPA proposed the extraneous document fee, because
EPA had learned from several state agency partners that such extraneous
documents were frequently encountered by states with tracking programs,
and their sorting and return, if required, would incur considerable
manual processing steps and resulting labor costs. It was believed that
a premium fee charged for extraneous documents might deter these
submissions and recover their related costs to the system.
EPA proposed the corrections submission fee, because the proposed
corrections process included in the proposed rulemaking action would
require a certified submission by TSDFs to effectuate a change to
previously entered manifest records. The proposed rule included a
fairly structured submission requirement that would have required the
receiving facility submitter to identify the data elements being
corrected, to list both the data item as previously entered and as
corrected, and then to certify that the data as corrected are complete
and accurate. Such submissions would result in system-related costs
being incurred, and it was believed that a corrections fee might induce
facilities to improve the data quality of their initial submissions so
as to avoid the costs of later correction submissions.
2. Comment Analysis
EPA received many comments in response to the proposal regarding
which transactions might warrant additional fees. Numerous industry and
state commenters agreed that continuation sheets should not be charged
a separate or per page fee. These commenters contend that most
continuation sheets simply add additional waste streams or an
additional transporter to the original manifest. Since continuation
sheets carry the same tracking number as the original manifest to which
they are appended, the commenters believed that only one fee should be
charged for the original manifest and any continuation sheets attached
to it.
EPA received many comments from industry and state commenters
contesting the proposed fee for sorting and returning stray or
extraneous documents. Nearly all of these comments suggested that EPA
should not be spending time and resources sorting extraneous documents
and attempting to return them to senders, but should simply discard
them. Commenters suggested that discarding the stray documents with no
additional effort expended on them would not necessitate a separate
fee. Several such commenters did question what the term ``extraneous''
meant in connection with non-manifest documents submitted to the
system. For example, commenters asked if polychlorinated biphenyl (PCB)
continuation sheets and land disposal restriction (LDR) certifications
would be treated as extraneous, even though other EPA regulations may
require them to be attached to manifest forms.
Commenters generally agreed with EPA's assessment that help desk
encounters should not be charged separate per encounter fees. These
commenters agreed with EPA's statement in the proposed rulemaking that
the help desk costs should be aggregated and shared by all manifests as
operations and maintenance costs. Similarly, commenters agreed with
EPA's assessment that a premium fee for paper manifest use was not
warranted at this time, as the differential fee approach in the
proposed rule would already assess higher fees for paper manifest
submissions, because of their higher processing and labor costs.
Commenters said that the differential fee proposal already created the
appropriate incentives against the continued use of paper manifests
without an additional premium fee.
Many industry commenters and several state agency commenters
submitted comments objecting to the proposed data correction fee,
although a few commenters stated they would support a corrections fee
focused on paper manifest submissions only. The commenters objecting to
the proposed corrections fee, particularly RCRA TSDFs and their trade
associations, argued that a separate fee levied on correction
submissions would deter corrections being made, and would result in
disincentives for data quality in the system. These commenters
suggested that the system should encourage, not discourage, data
corrections from the user community.
3. Final Rule Decisions
EPA accepts the numerous comments objecting to a separate
transactional fee for manifest continuation sheets. EPA is persuaded
that most continuation sheets add minimal additional data to a
manifest, typically several additional waste streams or an additional
transporter, and that processing these additional data items will not
incur significant costs to the system. Also, as these continuation
sheets will be tracked by the same manifest tracking number displayed
on the original manifest, it will not be practical to track and invoice
users separately for continuation sheets. Any marginal costs that
result in the aggregate from the processing of continuation sheets will
be added to the system's operating and maintenance costs. Thus, the
policy of charging a per sheet fee for continuation sheets, as
suggested in the proposed rulemaking, 81 FR 49072 at 49088, footnote
16, July 26, 2016, will not be adopted in the final rule.
EPA also accepts the numerous comments criticizing the proposal to
charge a separate transactional fee for sorting and returning
extraneous documents submitted to the system's processing center with
paper forms. Commenters all expressed alarm that EPA would spend time
and resources sorting and returning extraneous documents, and EPA
accepts the commenters' reasoning that the proper outcome should be to
simply discard, and not return, any such stray or extraneous items that
are not in fact manifest related. Thus, under the final rule, there
will be no fee assessed for processing extraneous documents, and any
nominal costs from sorting and discarding these documents will be added
to the system's operating and maintenance costs. Thus, in this final
rule, EPA is not finalizing proposed Sec. 264.1311(b)(1) or Sec.
265.1311(b)(1), which would have assessed fees for the processing of
extraneous documents submitted with paper manifests to EPA's paper
processing center.
In relation to this issue, EPA will treat all documents that are
not manifest related, i.e., a hazardous waste manifest form or a
manifest continuation sheet, as extraneous and discard them under this
rule's policy. PCB continuation sheets will be considered manifest
related, as they are required to be attached to PCB manifests under
federal law and contain specific details related to tracking specific
PCB waste items that are being shipped off-site. However, EPA is not
planning to process LDR certifications at the e-Manifest processing
center, and any plans to process LDR-related documents in e-Manifest
will await a later phase of system implementation. Such LDR
certifications are currently intended to be delivered to the RCRA
receiving facility the first time LDR-restricted wastes are shipped to
a particular facility for management. Therefore, these LDR
certifications should remain at these facilities and be kept among
these facilities' records, and not submitted with manifests to the e-
Manifest system. Until such time as EPA decides to process LDR-related
documents in e-Manifest, EPA will discard any LDR certifications that
are received by the system under this rule's
[[Page 429]]
policy of discarding extraneous documents.
EPA also is accepting the comments objecting to the proposed rule's
fee for data correction submissions. EPA is persuaded that a fee for
such corrections might have the unintended effect of discouraging
corrections and data quality. Moreover, as the great majority of
correction submissions will be made electronically, their processing
should entail nominal system costs, which EPA can include among the
system's operation and maintenance costs to be shared by all manifests.
Therefore, the final rule action does not finalize proposed Sec. Sec.
264.1311(b)(2) and 265.1311(b)(2), which would have assessed fees for
manifest data correction submissions by facilities. Other changes to
the proposed data corrections process are discussed in section III.F of
this preamble.
Finally, the Agency acknowledges the general support in the
comments for EPA's proposed rule rationale for not charging any
additional transaction based fee for help desk encounters nor charging
an additional premium fee for the use of paper manifests. EPA concluded
in the proposed rule that the cost of help desk support should be
aggregated and funded as an operating and maintenance costs shared by
all manifests. EPA further explained that the proposed differential fee
approach (see section III.C of this preamble) already included
appropriate fee disincentives to discourage paper manifest use, without
a premium fee being necessary or appropriate at this time. As
commenters agreed with both of these proposals, and EPA believes both
are backed by sound policy, EPA is affirming in this final rule that no
transactional fee will be charged for help desk encounters. In
addition, no premium fee (beyond the higher differential fee under the
rule's fee formula) will be charged for the continued use of paper
manifests.
C. What formula and methodology will be used to determine user fees?
1. Background
In the July 26, 2016, notice of proposed rulemaking, EPA proposed
what it described as a ``differential fee formula.'' The proposed
formula differentiated among the several types of electronic and paper-
based manifests that would be submitted to the system for processing.
The most significant feature distinguishing the processing of these
different manifest types under the proposed fee formula was the
marginal labor cost of processing the data from these manifests into
the system. EPA developed an economic model to project the marginal
labor costs for processing the several manifest types allowed to be
submitted to the system. Paper manifests mailed to the system for
sorting and manual data key entry would entail the greatest marginal
labor costs to process. Paper manifests submitted as image files (e.g.,
Adobe Portable Document (PDF) files) would have marginally lower costs
than mailed forms, but would still require manual data key entry steps.
Paper manifests submitted as data files (e.g., JSON file with an image
file attachment) would require even less manual effort to process. The
lowest cost manifests to process would be the fully electronic
manifests that originate in the system and are transmitted
electronically with no manual intervention at all. The result of the
proposed differential fee formula is thus a continuum of manifest fees,
with fully electronic manifests involving the lowest costs and fees,
with somewhat higher fees for paper manifests submitted as JSON or data
files, with moderately higher costs for the paper manifests submitted
as image files, and with the highest fees imposed on paper manifests
mailed to the system.
The key purpose of the fee formula is to determine the per-manifest
fee to be charged manifest users. In simplest terms, the formula
allocates all the system-related costs over all the manifests in use to
arrive at a per manifest fee. In the July 26, 2016, proposal, EPA
explained the nature of the several system-related cost categories that
would be included in fee determinations with the proposed formula. See
81 FR 49072 at 49079. The major cost categories identified in the
proposal were System Setup Costs, Operations and Maintenance Costs, and
Indirect costs.
The proposed rulemaking discussion of the differential fee formula
broke down the system-related costs into two key sub-categories, System
Procurement Costs and EPA Program Costs. These sub-categories are
helpful to distinguish the information technology (IT) system
acquisition and contracting costs from the other EPA Program Costs that
the Agency would incur in planning, developing, operating, and managing
the e-Manifest program, including the program's IT system and
regulatory components. The EPA Program costs extend as well to the
costs of conducting outreach, as well as establishing and operating the
e-Manifest Advisory Board.
In the fee formula methodology proposed by the Agency, the System
Setup Costs are simply the System Procurement Costs and EPA Program
Costs incurred by EPA before the e-Manifest system's operational date,
whereas the Operations and Maintenance Costs consist of the System
Procurement Costs and EPA Program Costs incurred after the operational
date of the system. Because the e-Manifest Act requires that EPA reduce
the user fees upon the recovery of all the system development costs,
the proposed rule methodology would accomplish this by simply dropping
the System Development Costs from the formula after five years, as EPA
proposed an amortization period of five years for the recovery of the
system development costs. 81 FR 49079, July 6, 2016. However, it is
possible that the cost recovery period could extend beyond the five
years, should, for example EPA find that actual O&M costs exceed
estimates. EPA will closely track the actual progress in the recovery
of system start-up costs, and will notify users accordingly when the
reduced fees will take effect.
In developing the proposed rulemaking, EPA considered three
distinct fee models or options, which were discussed in detail in the
proposed rule preamble. See 81 FR 49081-49083, July 26, 2016. All three
options focused on the marginal labor cost of processing each manifest
as the primary cost item contributing to the calculated fee, and to
this marginal cost was added the result of dividing the System Setup
and Operations and Maintenance by the numbers of manifests, with
allowance also for amortizing the System Setup Costs over five years.
The three fee models or options varied by how extensively the models
tracked costs and manifest numbers by manifest type, and by how
rigorously the models attempted to allocate the substantial paper
manifest processing costs to only the paper manifests, rather than
sharing these costs equally with the electronic manifests. Thus, the
Agency considered a very simple ``Average Cost Fee Option'' that shared
all costs equally among all manifests, paper or electronic, to arrive
at an average marginal labor cost and the same average fee for all
manifest types. A second or intermediate option was discussed as the
Marginal Cost Differentiated Fee Option, which focused on the marginal
labor cost of processing each manifest type (fully electronic, paper by
mail, paper by image file, or paper by JSON file) as the key
contributing cost item, but which allocated all other system setup and
non-labor operating costs equally across all manifests. The third and
most detailed option was the Highly
[[Page 430]]
Differentiated Fee Option, which also focused on the marginal labor
cost of processing each manifest by type, but was more particular in
tracking operation and maintenance costs and manifest numbers by their
type, and in allocating the non-labor costs of operating the paper
manifest processing center to only the paper manifests rather than
having all manifest types share in these costs.
In the July 26, 2016, proposed rulemaking, EPA proposed a
combination of the second, Marginal Cost Differentiated Fee option and
the third option, the Highly Differentiated Fee option. See 81 FR at
49083. Under the proposed fee model, EPA would initially implement the
second, Marginal Cost Differentiated Fee Option, but would shift to the
third or Highly Differentiated Fee Option if the Agency were to find
that electronic manifest usage had not reached the programmatic goal of
75% after four years. EPA rationalized the proposal on the basis that
it represented a useful compromise between promoting electronic
manifest use, while also recognizing that there likely would be a
transition from paper manifest use, to JSON data uploads from
facility's paper manifests, and finally to fully electronic manifests
and submissions. The intermediate step in the transition--receiving
facility uploads of JSON data files generated from their paper
manifests--would produce benefits and cost savings for industry and the
Agency's national data system. Thus, EPA believed that the combination
of the two fee models, with the pivot to the more aggressive fee model
if necessary after a four-year period, would facilitate this transition
and not have the potentially undesirable effect of penalizing paper
manifest usage initially. EPA had previously espoused the 75% usage
rate goal in our economic analyses for e-Manifest to project program
savings and benefits, and we believe that the 75% adoption rate within
four years for electronic manifests is a useful benchmark for measuring
the success of the program and for incentivizing the transition to
electronic manifests through this User Fee rule.
2. Comment Analysis
There was general agreement among both industry and state
commenters in support of the proposed rule's differential fee formula
and its approach keyed to the marginal labor cost of processing the
various manifest types into the national data system. The majority of
these commenters indicated that the proposed formula was well
explained, and that it provided a generally sound justification for the
variability of fees among the different manifest types, that is, fully
electronic manifests, and paper manifest submissions delivered by mail,
by image file upload, and by JSON data file upload. These commenters
also were satisfied that the proposed formula and the explanation in
the proposal of the formula's cost categories and their sources were
adequate to explain how the fees would be determined. Only one industry
commenter expressed a dissenting view, and suggested that EPA had not
substantiated the cost factors and resulting fees. This commenter
expressed alarm at the level of fees published in the preamble's table
showing the illustrative fees under the proposed formula, while another
commenter criticized the table of illustrative fees for the range of
possible fees it presented, and suggested that EPA should have been
able to pin down the costs and resulting fees more closely by now.
In addition, there was general support in the industry and state
comments for the proposed rule including the fee pivot feature, so that
fees for paper manifests would become more aggressive if electronic
manifest usage goals were not met. However, commenters representing
several large RCRA TSDFs, and their trade association, objected to the
final rule codifying the 75% electronic usage goal in four years as the
trigger for the pivot to the more aggressive fee formula. In the view
of these commenters, the 75% in four years electronic usage goal was
arbitrary and should not be locked into a regulation. Rather, these
commenters would prefer that EPA refer the matter of when and under
what conditions to raise fees to the e-Manifest Advisory Board for its
recommendation.
Few comments were received on the proposed five-year amortization
period for the recovery of system development costs and their payback
to the Treasury. One state agency commenter expressed support for the
five-year amortization period as reasonable, but emphasized that
amortized costs that accumulate in the System Fund must not be treated
as a surplus, as the e-Manifest Act places limits on surplus
accumulations in the System Fund. Another state commenter suggested the
amortization period should be set at six years, for consistency with
the Fee Rule's general reliance on a two-year cycle for publishing and
revising fees.
3. Final Rule Decisions
For this final rule, EPA is sustaining its proposed approach to the
differential fee formula. The final rule provides that EPA will
initially implement the Marginal Cost Differentiated Fee model, and
then shift to the Highly Differentiated Fee model, if electronic
manifest usage has not reached a 75% adoption rate after four years of
system implementation. However, EPA will evaluate the circumstances of
the electronic manifest adoption rate as we reach the four-year
anniversary date for the e-Manifest system. At that time, EPA will
publish a document indicating whether the 75% adoption rate has been
realized and any facts or circumstances that might explain why the goal
was met or not met. At the time EPA publishes this action, the Agency
will either state that the fee pivot will go into effect on a date
determined by EPA under the conditions of the final rule's fee pivot
provisions, or, EPA will determine then to refer the matter of the
adoption rate and fee impacts to the Advisory Board and seek the
Board's recommendations on the issue. In this manner, EPA can still
implement the more aggressive fee formula pivot under the terms of this
final rule, rather than having to wait on the Advisory Board's advice
and possibly another rulemaking. EPA believes that the more aggressive
or Highly Differentiated Fee formula is an appropriate means of
ensuring that paper manifests ultimately bear their full costs, and
this is an important principle of user fee design. EPA only proposed
the intermediate fee model to facilitate a transition to electronic
manifests, and the Agency concludes that four years is a reasonable
period of time to promote such a transition. Rather than an arbitrary
pivot condition, the inclusion of the 75% adoption rate condition with
the four-year transition period actually moderates the transition
period condition. EPA could have required the pivot to the more
aggressive formula with certainty after four years, without regard to
the electronic usage rate. As moderated by the usage rate condition, if
the 75% adoption rate is realized, the transition to the more
aggressive fees after four years is in effect canceled and the
intermediate model's fees would remain in effect. In addition, EPA
notes that the fee increases resulting under the more aggressive fee
formula are not prohibitive, e.g., about $2 more for a mailed paper
submission and only a few cents difference per manifest for a JSON data
upload from a paper form. EPA is not persuaded by comments suggesting
that the proposed rule's fee pivot is unreasonable or arbitrary under
the proposed conditions. Indeed, were the conditions not codified in
the final rule, the decision to increase the paper
[[Page 431]]
manifest fees even moderately would involve the substantial delay of
referring the issue to the Advisory Board, waiting on their report, and
then having to initiate new notice and comment rulemaking to implement
the change. The decision to raise fees under particular conditions is a
decision that only the Agency, not an Advisory Board, can make.
Therefore, EPA is issuing the final rule to include a transition to the
Highly Differentiated Fee model after four years, if electronic
manifest usage has not reached 75% by that time. However, we will
decide at that time through a separate action whether the fee model
pivot will go into effect by the terms of the final rule, or if we find
there are extenuating circumstances such that it would be helpful first
to seek the advice of the Board. In either case, EPA will announce its
decision to either allow the fee pivot to go into effect, or to consult
on the matter with the Advisory Board.
EPA also is finalizing the rule with the proposed five-year
amortization period for the recovery of system development costs. EPA
received one comment supporting the proposed period as reasonable, and
only one other comment suggesting the amortization period be extended
to six years to align better with the proposal's two-year fee revision
cycles. For the final rule, EPA is retaining the proposed five-year
amortization period, and concludes that five years reasonably balances
the Government's desire to promptly recover the system's development
monies, while moderating the effect of the development costs insofar as
keeping the resulting user fees at reasonable levels. By concluding the
amortization period after the fifth year, the fee revision schedule
that EPA publishes for the two-year cycle covering the fifth and sixth
years will more palpably show the users the effect of the recovery of
start-up costs in reducing the scheduled fees for the sixth year
relative to the fifth year.
D. What indirect costs are considered by EPA in user fee
determinations?
In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
explained that the e-Manifest system related costs fall into three main
categories: (1) System Setup costs, (2) Operations and Maintenance
costs, and (3) Indirect costs. The nature and source of System Setup
costs and the Operations and Maintenance costs are explained above in
the discussion of the Fee Formula and how these costs are factored into
the determination of fees. However, indirect costs also are factored
into the Fee Formula calculation of user fees, and EPA believes this
third major category of system-related costs merits more explanation.
Indirect costs are the intramural and extramural costs that are
incurred by EPA in operating the system, but that are not captured in
the EPA Program cost and marginal labor cost sub-categories that EPA
tracks as direct costs in determining overall costs and resulting fees.
The indirect costs are part of full cost recovery, because of their
necessary supporting or enabling nature in executing the program. (81
FR 49072 at 49080, July 26, 2016). Indirect costs typically include
such items as physical overhead, maintenance, utilities, and rents on
land, buildings, or equipment. In e-Manifest, these indirect costs also
include the cost of participation by administrative EPA offices outside
of the Office of Resource Conservation and Recovery (ORCR), the lead
office at EPA for implementing the e-Manifest program, and the
participation of upper management level personnel from the EPA offices
that provide support to all aspects of the e-Manifest program. Id.
Indirect costs tend to be disparate and more difficult to track
closely than other cost categories, because they are typically incurred
as part of the normal flow of work involving many offices across the
Agency, and cannot be attributed directly to the particular activities
they support. Also, the level of participation by different offices,
and the level of indirect costs incurred by them, changes over the
course of the program's implementation. Thus, as we explained in the
proposed rule, indirect costs require a different method of tracking
and accounting than the other categories of e-Manifest costs. Id.
EPA accounts for indirect costs in its user fee determinations by
developing an indirect cost rate, and factoring that rate times the
base fees determined from the direct cost categories in the fee
formula. Typically, agency-wide indirect cost rates are determined for
EPA user fee programs by EPA's Office of the Controller, using an
indirect cost methodology that this office has developed to meet the
Federal Accounting Standards Advisory Board's Statement of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Standards and Concepts. EPA's Office of the Controller annually
publishes an indirect cost rate for each of the Regional Offices and
for each of the Assistant Administrator-level offices within EPA
Headquarters. Thus, there is an Interagency Agreement (IA) indirect
cost rate issued each fiscal year for the Office of Land and Emergency
Management (OLEM). The Fiscal Year 2015 IA indirect cost rate for OLEM,
which we discussed in the proposed rulemaking preamble and used for
purposes of the proposed rule's table of illustrative e-Manifest fees
at 81 FR 49085 of the proposed rule, was 19.74%. Id. at 81 FR 49080,
footnote 11.
In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA stated
that it intended to develop a customized indirect cost rate that we
believed would capture the indirect costs of the e-Manifest program at
a greater level of specificity than the IA indirect cost rate for OLEM.
EPA received no public comments on the issue of indirect costs. Nor did
the Agency receive any comments on its statements in the proposal
regarding its intent to develop a new custom indirect cost rate for e-
Manifest.
EPA is announcing in this final rule the custom indirect cost rate
for e-Manifest, which was based on EPA's existing indirect cost
methodology, and taking into account with more particularity other
appropriate indirect costs attributable to the ORCR program office that
were not captured by the previously used IA rate alone.
Using the new custom indirect cost rate methodology for e-Manifest,
the indirect cost rate for e-Manifest in fiscal year 2018 is 33.22%.\5\
This indirect cost rate for e-Manifest will be calculated and reissued
each fiscal year. Thus, when the Fee Formula is run to determine e-
Manifest user fees, the applicable indirect cost rate will be factored
times the base fees calculated from the direct cost categories in the
fee formula to arrive at the total user fees.
---------------------------------------------------------------------------
\5\ The custom indirect cost rate includes those indirect costs
incurred by EPA in operating and managing the e-Manifest program.
This custom rate also includes EPA Headquarters general and
administrative expenses, including OLEM's Immediate Office and the
ORCR's administrative office, which are not captured as part of the
EPA Program costs that EPA tracks as direct costs in determining the
program's overall costs and resulting fees. All costs are captured
in the Agency's financial system.
---------------------------------------------------------------------------
E. What process and factors will be used to revise e-Manifest fees?
1. Background
In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
proposed both a process and several fee adjusters that the Agency was
considering to address the so-called ``fee trajectory'' concern. Fee
trajectory provides a means to ensure that the program's user fees
remain aligned with any changes to program costs. Changes to program
costs could arise, for example, from increased labor costs for EPA's
internal staffing or for its contractors, from increases in the
[[Page 432]]
costs of licensing software or other system components, as well as from
inflation. In addition, since the calculation of e-Manifest fees is
highly dependent on accurate information about program costs and the
numbers of manifests in use, the e-Manifest user fees need to be
reevaluated regularly to ensure that the fees are based on the most
recent cost and manifest usage data.
To address fee trajectory, EPA proposed a fee revision process
under which the fee formula would be re-run with the latest program
cost and manifest usage numbers at two-year intervals. EPA based this
proposal on the perceived advantages of providing more stability to
users under a two-year fee schedule, as well as the advantage to EPA of
avoiding the administrative burden of constantly updating and
publishing fee revisions annually. Moreover, we believed that a two-
year fee refresh cycle was consistent with OMB's Circular A-25 user fee
guidance, which requires agencies of the executive branch to conduct
biennial reviews of its user fees, including any adjustments to the
fees charged. See 81 FR 49072 at 49086, July 26, 2016.
In addition, since EPA would retain the formula and merely refresh
the fee schedules to reflect the most recent program cost and manifest
numbers, the refresh and publication of the revised fee schedules under
the proposal would be conducted informally. That is, EPA would not
conduct notice-and-comment rulemaking with each fee schedule revision
cycle, but would instead publish the revised fee schedule to users
through the e-Manifest program's website, and publish the fee schedules
in this manner 90 days prior to the effective date of the new fee
schedule.
To enable a more durable fee methodology and avoid the need for
frequent regulatory amendments, EPA included several fee adjusters in
the proposed rule. The point of these adjusters was to keep the
calculated fees current with any anticipated program cost changes, and
avoid having to revise the formula and methodology by new regulations.
If the fee formula with the proposed adjusters could keep the e-
Manifest fees aligned with program cost changes, then EPA could retain
the fee formula over an extended period of time, simply by refreshing
the fees at two-year intervals with the latest budget and manifest
numbers, and applying the regulation's adjusters. This is what EPA
intended by a durable fee methodology.
EPA proposed several such adjusters. First, we proposed an
inflation adjustment factor predicated on the Consumer Price Index, for
all items not seasonally adjusted, or CPI-U. EPA believed the CPI-U was
a sufficiently representative inflationary index, and we proposed to
use that index to adjust e-Manifest fees between the first year and
second year of each two-year fee revision cycle.
Second, EPA proposed a revenue recapture adjuster to deal with
revenue losses that might result to the program from imprecise
estimates of manifest numbers used to determine fees in the fee
formula. The fees calculated under the fee formula, and therefore the
revenue to be collected from e-Manifest user fees, are highly sensitive
to the numbers of manifests actually in use each year. Over time, as
EPA obtains data from the system showing precisely how many manifests
are submitted to the national system, the program should be less
vulnerable to losses from imprecise estimates. But particularly in the
initial years of implementation, when our fee formula will work off of
estimates of manifest usage developed from economic analyses rather
than actual experience, imprecise estimates of manifest numbers are an
area of revenue vulnerability. Therefore, EPA included the revenue
recapture adjuster so that we could compare our estimated manifest
usage numbers for each fee cycle with the numbers actually submitted,
and then recapture the revenues lost from inaccuracies in the
subsequent fee cycle. In this manner, the fee methodology would become
self-correcting for any such revenue losses.
Third, EPA proposed a third adjuster that we referred to as the
uncollectable fee adjuster. Like the above revenue recapture adjuster,
this proposed adjuster also sought to recover revenue losses from the
previous two-year cycle. This adjuster, however, was focused on revenue
losses that arose from fees that proved to be uncollectable after being
billed to facilities. Thus, the effect of this proposed adjuster was to
track how much revenue the program lost from unpaid and uncollectable
fees billed to facilities, and then recover those revenues in the next
fee cycle by increasing user fees sufficiently to recoup those losses.
All the proposed adjusters were aimed at accomplishing full cost
recovery, and providing a means for the fee system to be durable and
self-correcting, where possible.
2. Comment Analysis
The majority of industry and state agency commenters supported the
proposal to refresh fee schedules at two-year intervals, with informal
publication of the revised fees to the program's website 90 days in
advance of their effective date. Several commenters objected to certain
aspects of the proposed informal fee revision process. An industry
trade association objected to the 90-day lead time for new fee
schedules as too short, and suggested a 180-day lead time was more
appropriate, especially if there were large (>10%) fee increases. Two
industry commenters objected to EPA making any fee changes without
conducting a rulemaking, while a state agency commenter asserted that
new fee schedules should be developed annually.
Other commenters requested clarification of points raised in the
proposal. One comment asked the Agency to clarify if it was the intent
of the proposed rule that fees would be identical for both years of a
fee cycle, or, would they change between years. Another commenter
requested clarification about the effective date of fee revisions, and
whether a fee would be charged based on the date of initiation of a
manifest, or on the date of receipt at the receiving facility.
For the proposed fee adjusters, there was general agreement among
both industry and state agency commenters in support of the inflation
adjuster based on the CPI-U as the measure of the inflationary impact.
However, a minority of commenters stated that an inflation adjuster did
not seem necessary, if user fees were to be refreshed as frequently as
every two years. There also was support expressed by several commenters
for the proposed adjuster to recover losses from imprecise manifest
usage estimates. There were strong and general objections expressed by
both industry and state agency commenters to the proposed uncollectable
manifest fee adjuster. Nearly all these commenters expressed the view
that it was unfair to charge responsible users who were paying their
fees on time additional amounts to compensate for non-paying users.
However, one generator did submit a comment in support of the
uncollectable fee adjuster.
3. Final Rule Decisions
For the final rule, EPA is affirming the proposed fee revision
process to be conducted at two-year cycles by refreshing the fee
formula with the most recent e-Manifest program cost numbers and
manifest usage numbers. We also affirm that the process will be
conducted informally rather than through notice-and-comment rulemaking,
as long as the Agency is using the same fee setting methodology
promulgated in this rule. Thus, the final rule will provide that the
new fee schedules developed every two years
[[Page 433]]
from re-running the fee formula will be published to users via the e-
Manifest program's website, at least 90 days prior to their effective
date. While the Agency appreciates that an annual fee revision process
would be even more responsive to program cost and manifest number
changes than the final rule's two-year cycle, the Agency is persuaded
that any such advantage is overwhelmed by the additional administrative
burden to EPA in conducting a nearly constant, annual fee refresh
process. Also, we believe there are advantages to users in having
access to a stable fee schedule of two years' duration, rather than
having to anticipate and react to a more frequent fee revision process.
In finalizing the rule with this informal fee revision process, EPA
rejects the comments suggesting that all fee revisions require a new
rulemaking. While we acknowledge that OMB Circular A-25 requires
agencies to promulgate user fees by regulation, EPA concludes that this
requirement is met by developing this Fee Rule announcing our durable
fee methodology through the regulatory process. By developing our
durable fee methodology through rulemaking, EPA is providing the user
community with notice and opportunity to comment on the information and
process EPA will rely on in setting e-Manifest user fees, including
those factors that will be used to adjust fees to align them with
changes in program costs. EPA is aware that other fee programs follow
similar processes in determining and revising their fees. EPA believes
the durable fee methodology and informal fee refresh process announced
in this rule meets all applicable legal requirements and OMB Circular
A-25 policy. Otherwise, the result would be a prohibitively burdensome
administrative process were EPA to constantly develop regulations for
every fee revision. In addition, while EPA understands the desire to
have more lead time to understand and budget for user fee revisions,
EPA concludes that a 90-day lead time should be workable, as it will
enable EPA to base the new fees on the latest cost and manifest usage
trends, while still affording users reasonable time to plan for the
revised fees. Also, by refreshing the fees at two year intervals, it
would seem unlikely that fee changes will be so significant between
cycles that facilities will need six months or more to prepare for
their implementation.
Based on the public comments and the necessity of full cost
recovery and stable revenues, EPA is finalizing the rule to include the
inflation adjuster based on the CPI-U, and the revenue recovery
adjuster for revenue losses from imprecise manifest usage estimates.
The inflation adjuster will operate to adjust fees between the first
and second year of a fee cycle, so it is likely that fees will not be
identical for both years of a cycle, but differ somewhat to reflect the
inflation adjustment. The revenue recovery adjuster for imprecise
manifest numbers will operate between fee cycles, to adjust fees in the
new cycle to account for revenue losses during the previous cycle.
Since the billable event for e-Manifest fees is the submission of the
final manifest by the receiving facility, the fee charged will be
determined based on the date of submission by the receiving facility,
and not the date of initiation by a generator.
Finally, EPA is not including the proposed uncollectable manifest
fee adjuster in Sec. Sec. 264.1313(c) and 265.1313(c) of the final
rule. While such an adjuster might help to stabilize program revenues
in the event of significant non-payment incidents, EPA is persuaded by
comments objecting to the fairness of charging responsible users for
the revenue losses occasioned by delinquent payers. In addition, EPA
believes that non-payment episodes will be infrequent, and should be
resolved or moderated through the dispute process provided in the rule,
or through the deterrent effect of the rule's sanctions for non-
payment.
F. What process will be used for manifest data corrections?
1. Background
In the 81 FR 49072, July 26, 2016, proposed rulemaking, EPA
proposed a process by which receiving facilities only could submit a
certified corrections submission electronically in order to make
corrections in the data system to existing manifest records. (81 FR
49072 at 49098). The facilities could make these corrections by
accessing the web-based e-Manifest application directly, or, by
uploading a correction submission (e.g., a JSON file) affecting one or
a batch of manifest records. Every correction submission by a facility
would require a Cross-Media Electronic Reporting Rule (CROMERR)-
compliant signature certifying that the data as corrected are true,
accurate and complete. Id. The proposed rule's correction submission
would clearly identify the Manifest Tracking Number of the affected
manifest(s), the items on the manifest being altered, and set out both
the data previously entered and the data as corrected. Id.
The proposed data correction provisions also included a fairly
detailed process by which corrections would be initiated and reviewed
by interested persons, i.e., other handlers included on the affected
manifest, and state regulators. Critical to this proposed process was
the requirement that all data corrections were to be completed within
90 days of receipt of the manifested wastes, so that the corrections
process would be completed by the date that manifest data could be
disclosed by the system to the public under existing regulations. The
proposed rule discussed one process under which the data correction was
initiated by the receiving facility and another process under which
another interested person (other waste handler or state) initiated a
correction by providing the facility with notice of a data error. In
either case, the proposed rule provided comment windows for interested
persons to respond to the facility's data correction, and the
correction process had to be completed by the facility no later than 90
days post-receipt for the waste shipment. Id. at 49099. Finally, EPA
proposed that a fee would be collected for all data correction
submissions from receiving facilities. Id.
2. Comment Analysis
EPA received a variety of comments both supporting and objecting to
the proposed data corrections process. A trade association of large
receiving facilities and several members of the industry supported the
major features of the proposed corrections process, including the
proposal that only receiving facilities could submit data changes to
the system, and the proposed requirement to submit all corrections
electronically. These industry members also supported the batch
certification process whereby one electronic signature would suffice to
certify to a batch of data record changes.
Among members of the waste industry, there were several comments
that dissented to the proposal that only receiving facilities could
enter data changes in the system. The dissenting commenters questioned
why generators, transporters, or state agency representatives could not
also make these changes, and one objected to the idea that the proposed
rule seemed to portray receiving facilities as owners of manifest data,
when generators should be playing this role. Other industry commenters
and a state agency observed that not all facilities would be able to
submit their corrections electronically, and that the rule should
provide appropriate exceptions.
EPA received many comments from industry and state agencies
objecting to
[[Page 434]]
the proposed 90-day window for making data corrections. These
commenters provided examples of several situations where errors and the
need for corrections would not become apparent until after the 90-day
window had passed, such as errors discovered after containers placed in
storage were opened, during an audit, or while preparing an annual or
biennial report. All these commenters urged EPA to reconsider this 90-
day window, and allow data corrections to occur at any time they are
needed.
Many industry commenters also objected to the proposed fee for data
correction submissions. Theses commenters asserted that a fee charged
for corrections would operate as a disincentive to correcting data
errors, and denigrate data quality in the system.
The remaining comments on this topic were concerned with the
clarity of the proposed corrections process, and they suggested several
ideas for clarifying and improving the process. Within these comments
were suggestions that the final rule:
Clarify the interested parties who can participate in the
corrections process,
Clarify how receiving facilities will notify off-line
generators of errors, discrepancies, or proposed corrections, and how
off-line generators will notify facilities of data errors,
Clarify how generators will be alerted to proposed
corrections and how they will be able to validate or dispute such
corrections,
Clarify which states will receive notices of proposed
corrections,
Clarify the data validation rules and standards that will
be followed for paper manifests, and the expectations for QA/QC and
resource implications for states, and
Clarify how the original and corrected versions of the
manifest will be retained in the system.
In addition, at the initial e-Manifest Advisory Board meeting
conducted on January 10-12, 2017, Advisory Board members discussed the
proposed rule's corrections process and offered suggestions to EPA
representatives. Several Board members suggested there should not be
detailed regulatory provisions or a prescriptive process for data
corrections. Instead, the Advisory Board members suggested a minimal
role for a regulation, and an open process by which any waste handler
named on a manifest could at any time make a data correction. All
interested parties should be made aware of another's proposed data
change, and the last change made in the system would stand until
corrected.
3. Final Rule Decisions
For the final rule, EPA is accepting the many comments that
objected to the 90-day post-receipt window for making corrections, as
well as the numerous comments objecting to the collection of a fee for
correction submissions. EPA is persuaded by the comments that both of
these proposals could have the deleterious effect of discouraging data
quality.\6\ Further, EPA agrees that all interested persons (e.g.,
waste handlers named on manifests) should have the ability to submit a
data correction, whenever a data error in an existing record becomes
apparent.
---------------------------------------------------------------------------
\6\ EPA notes that the proposed 90-day window on submitting data
corrections was premised in part on the desire to produce final,
corrected manifest data in the system prior to the data becoming
publicly available by virtue of the One Year Rule's policy that
manifest data shall be made publicly available 90 days after receipt
of a shipment at the receiving facility. The result of the decision,
in this final rule, to remove the proposed 90-day corrections window
is that in some instances, the data disclosed to the public after 90
days may not be final data and may be subject to subsequent
corrections.
---------------------------------------------------------------------------
EPA also is accepting the suggestion of e-Manifest Advisory Board
members that the e-Manifest data corrections process should be an open
process governed by minimal regulatory provisions, and without
regulatory limits on who, when, or how many changes are made to
manifest data records. Therefore, the final rule provisions on data
corrections are much simpler than the proposed approach, and specify
only that any interested person (e.g., waste handler named on the
manifest) may make a data correction submission at any time. Data
correction submissions must be made electronically, with electronic
notice to other interested persons shown on the manifest. The
correction submission may relate to an individual record or to an
identified batch of records, and must be accompanied by a CROMERR-
compliant certification that to the person's knowledge and belief, the
data as corrected will cause the affected data records to be true,
accurate, and complete.
EPA emphasizes that under the final rule, the initiation of data
corrections is not limited to receiving facilities, so the proposed
rule approach under which only receiving facilities could submit
corrections (at their own initiative or in response to a notice of
error from an interested party) is not being finalized in the
regulation. Instead, the final rule will simply state that any
interested person (e.g., waste handler shown on a manifest) may submit
a data correction submission at any time, by submitting a single record
or batch correction electronically to the system; by making the
required CROMERR-compliant certification to that person's knowledge and
belief, the data records as corrected are true, accurate, and complete;
and by giving electronic notice to the other interested persons shown
on the manifest. Consistent with the proposed rule, the correction
submission must indicate the record being corrected by its Manifest
Tracking Number, must identify the Item Number of the manifest data
fields affected by the correction, and for each data field corrected,
must show the previously entered data and the data as corrected. The
final rule corrections process is therefore an open and cumulative
process under which any interested person may submit a correction
affecting the data from the original manifest record, or affecting the
data from previous corrections submitted by others. There is no limit
to the number of corrections that may be entered, and the last
submitted correction is presumed valid and accurate unless corrected by
a subsequent data correction.
Those persons making data corrections must provide electronic
notice of the changes to other interested persons shown on the
manifest. The notice to interested persons must be provided by email or
by another system-generated electronic notice.
With respect to data corrections from off-line generators, and
notices of corrections to these off-line generators, all generators
must provide an email address where they may be contacted, so that they
may participate in the data corrections process and receive correction
related notices. While a generator may receive notices of data
corrections by email, a generator must have system access credentials
and must enter electronically any data corrections relating to
electronic or paper manifests in the system, and must provide the
required certification of any data corrections so entered.
Finally, EPA is clarifying that it is not the intent of the data
corrections process to produce amended or revised manifests, but rather
to produce changes only to the data records from manifests that reside
in the national data system. The role of the manifest is to serve as a
tracking document during the transportation of off-site shipments of
hazardous waste and state only regulated wastes. The function of the
manifest is complete at the time the receiving facility signs the
manifest to indicate the receipt of the waste (or a discrepancy), and
the signed copy showing the data at the time of receipt is distributed
to the other interested persons. The data from completed,
[[Page 435]]
original manifests become the first representation of the manifest data
records in the data system, but these data records are subject to
revision through the final rule's corrections process, as well as
through the discrepancy reporting process. The resulting data
corrections will be made only to the data records in the national data
repository, but will not result in the original, completed manifests
being revised and redistributed. The system will retain the final
manifest copy signed by the receiving facility as the copy of record of
the completed manifest, and all subsequent corrections will be entered
in the data system records, with an auditable trail of the corrections
made and who made them retained in the system.
G. How does the final rule address fee sanctions?
1. Background
EPA proposed several tiers of fee sanctions in the User Fee
proposed rule that would be included in the e-Manifest fee program to
induce manifest users to pay their fee obligations promptly. EPA
explained in the proposal that these sanctions are necessary because
the e-Manifest fee program would become vulnerable to revenue
instability if significant numbers of invoiced payments were not paid
promptly. Such instability would quickly put at risk the Agency's
ability to operate the e-Manifest system on a self-sustaining basis and
to meet its financial obligations in running the national system. For
the purpose of ensuring timely payment of e-Manifest user fees, EPA
proposed sanctions that would increase in their severity based on the
degree and duration of the delinquency. See 81 FR 49072 at 49094, July
26, 2016.
Specifically, EPA proposed a first tier sanction based on a
financial penalty under 31 U.S.C. 3717(a)(1), a provision of the
federal claims collection statutes that imposes an interest charge at
the Current Value of Funds Rate or CVFR on those persons who are
delinquent in paying claims owed to the federal government. EPA
considers a fee payment to be delinquent and subject to this interest
charge if payment is not received by the due date specified on an
invoice, which for e-Manifest fees, would be 30 days from the date of
the invoice. Thus, for e-Manifest users, payments received later than
30 days from the date of the invoice would be subject to this initial
interest charge measured at the currently prescribed CVFR rate.
If the first tier interest charge at the CVFR rate were not
effective in causing a delinquent fee payer to make the outstanding
payment, then the proposed rule's fee sanctions would assess a second
tier 6% financial penalty charge for e-Manifest user fee debts that are
more than 90 days past due, that is, user fee debts that are not paid
by the date 120 days from the date of the invoice. Like the initial
interest charge at the CVFR rate, this additional 6% financial penalty
also is based on the federal claims collection statutes. 31 U.S.C.
3717(e).
As a third tier of proposed fee payment sanctions, EPA proposed
that receiving facilities would become eligible for inclusion in a list
of delinquent fee payors when the period of their delinquency extended
to 120 days or greater. Finally, the proposal also explained that if
any manifests remained incomplete because of owed fees, then the
receiving facility could be in violation for failure to fully complete
a manifest per proposed Sec. [thinsp]264.1315(d) and/or Sec.
[thinsp]265.1315(d), and EPA could enforce this violation under RCRA
section 3008.
In addition to these several proposed sanctions, EPA requested
comment on additional sanctions (i.e., denial of manifest services and
the withdrawal or suspension of authority to operate (i.e., RCRA ID
numbers or permits). See 81 FR at 49094, July 26, 2016. EPA's intention
was to develop a credible mix of available sanctions that could be
scaled to the degree of the offense caused by the delinquency or non-
payment, with the expectation that this framework would minimize or
avoid delinquent payments.
2. Comment Analysis
Industry and state comments on the proposed rule generally
supported the financial sanctions, as well as the civil enforcement
sanction for ``egregious'' cases, but several industry stakeholders
expressed concern with the proposed definition of ``incomplete''
manifests. These commenters stated that the proposed definition could
be construed to negatively impact generators, who are more generally
responsible for completing RCRA manifests. Other commenters showed
little support for the publicity sanction or denial of services as a
sanction. These commenters indicated that a publicity sanction would
not likely be effective in influencing payment behavior and would be
unprecedented in existing EPA fee programs. Other comments opposing the
denial of services sanction indicated such a sanction would be too
severe, as it would tend to penalize generators too much in their
efforts to obtain waste services, and would likely cause a backlog of
manifests in the EPA data system. Another commenter suggested that
denial of services to facilities and their customers could cause
constrictions in waste management and perhaps cause frustrated
generators to mismanage their wastes.
3. Final Rule Decisions
After careful consideration, EPA is accepting the numerous comments
that generally supported the tiered sanction approach and that provided
particular support for the proposed financial sanctions under the
federal claims collection statutes and the availability of RCRA civil
enforcement orders to enforce non-payment of fees. Thus, EPA is
finalizing these proposed sanctions at 40 CFR 264.1315 and 265.1315
with slight modification in the rule. Specifically, the final rule
adopts the proposed sanctions detailed in paragraphs (a) and (b) at
Sec. Sec. 264.1315 and 265.1315 for financial interest and penalty
charges without change. EPA, however, is persuaded by the adverse
comments to the proposed publicity or delinquent payors list sanction
and therefore is not adopting this proposed sanction in the final rule.
EPA also accepts the commenters' opposition to the ``incomplete
manifest'' terminology in proposed paragraph (d) of Sec. Sec. 264.1315
and 265.1315. EPA intended to define a regulatory violation applicable
only to the receiving facilities that have not ``completed'' their
manifest transactions by submitting their manifests to the system and
paying fees for the manifest services they have obtained from the
system. The proposed violation was not intended to cause confusion
relating to what is meant by the requirement for generators to initiate
and complete manifests to track their off-site waste shipments. EPA,
therefore, has amended the proposed ``incomplete manifest'' terminology
in the rule to keep manifest completion distinct from the financial
context intended in the proposed rule. To avoid any confusion with the
concept of manifest completion, EPA is denoting a manifest for which
fees remain unpaid by the receiving facility as an ``unperfected''
manifest. The final rule amends the proposed paragraph (d) at
Sec. Sec. 264.1315 and 265.1315 by assigning it as new paragraph (c)
and clarifying that a manifest is not fully perfected until it is both
submitted to the system and all fees for those manifests have been paid
by the receiving facility submitting it. Thus, the RCRA civil
enforcement sanction
[[Page 436]]
included in this final rule would apply only to the receiving
facilities that are involved with unperfected manifests by not
submitting them to the system or by not paying the applicable fee for
their processing. This civil enforcement sanction would have no
applicability to the activities of generators in their use of the
manifest. The designation of a manifest as ``unperfected'' for purposes
of payment by a receiving facility in no way impacts the validity of a
manifest supplied by a generator for tracking its waste during its
transportation off-site to a facility.
Finally, EPA also accepts the numerous commenters that objected to
the additional sanctions (i.e., denial of manifest services and the
withdrawal or suspension of authority to operate) discussed in the
proposal. Therefore, EPA is not promulgating these sanctions as part of
this rule. EPA concludes that the several financial and civil
enforcement sanctions adopted in the final rule create a credible mix
of available sanctions that increase in their severity based on the
degree and duration of the delinquency.
H. How does the final rule address user fee disputes?
1. Background
In the User Fee proposed rule, EPA acknowledged that over the
course of invoicing users for their fee obligations, errors may
occasionally be made and thus may give rise to disputes concerning the
amount of a user fee payment that is due in response to an invoice. EPA
explained in the proposed rule that the Agency is not proposing a
formal dispute resolution process governed by explicit and detailed
regulatory provisions and processes. Rather, EPA intends to address e-
Manifest fee disputes through a more informal process that EPA
concludes will be sufficient and less burdensome than a formal process,
while scaled more appropriately to the nature of such disputes. EPA
requested comment on an informal fee dispute process under which users
who believe their invoice is in error (statement incorrect on numbers
or types of manifests billed, or a mathematical or other error) could
first seek resolution via the system's billing representatives by
making a claim identifying the nature and amount of the error. If not
satisfied by the handling of their claim at this initial level, the
claimant could appeal to the Office Director (OD) of EPA's Office of
Resource Conservation and Recovery (ORCR), whose decision on the claim
would be final and not subject to further Agency review. See 81 FR
49093, July 26, 2016.
2. Comment Analysis
Industry commenters generally supported the proposed informal
process, but one industry commenter had reservations about the fairness
of the proposed appeals process. This commenter suggested that the ORCR
OD would not be as unbiased as an independent third party and suggested
that the OD's decision be subject to the Alternative Dispute Resolution
program administered by the EPA's Office of General Counsel. See 65 FR
81858, December 27, 2000. Another commenter underscored the need for
EPA to establish accessible customer support for timely resolutions.
One state commenter, however, opposed the proposed informal process,
and suggested that EPA should instead adopt a formal dispute resolution
process that affords due process and creates perhaps a stronger record
for fee dispute decisions.
3. Final Rule Decisions
After analyzing the comments to the proposed informal process, EPA
is promulgating the proposed informal process in the final rule. EPA
acknowledges the industry commenter's apprehension about the fairness
of the appeal process under the informal process, but the Agency does
not accept the industry comment favoring an appeal of the OD's decision
to an independent third party decision maker under an Alternative
Dispute Resolution (ADR) process. EPA opposes this suggestion for a
couple of reasons. Although the ADR process offers conciliation,
facilitation, arbitration, mediation, fact-finding, mini-trials, and
other services to claimants, EPA's December 2000 Federal Register
publication announcing the ADR processes at EPA (65 FR 81858) suggests
that ADR was intended for matters far more substantial and potentially
controversial (e.g., adjudications, rulemaking, policy development,
administrative and civil enforcement actions, permit issuance, contract
award protests, workplace grievances, and litigious matters where a
more substantial fact-finding and record development are necessary)
than for the fairly simple fee disputes we anticipate in e-Manifest.
Second, EPA understands that the use of the Agency's ADR process would
be very time consuming and involve much greater costs than an informal
process. The Agency believes the informal process scales well to the
relative simplicity expected of fee disputes, and will result in more
timely and less burdensome resolution of e-Manifest program fee
disputes. EPA intends to respond to billing disputes within ten days of
receipt of a claim under the informal dispute process. Finally, the
Agency also concludes that the ORCR Office Director is sufficiently
unbiased on such fee dispute matters to afford fairness to these
informal proceedings.
EPA also rejects the state agency comment recommending that EPA
establish a formal dispute process. EPA concludes that the adjudicatory
processes typically associated with formal dispute resolution are not
well matched with the simplistic nature of the e-Manifest fee disputes.
In addition, evidentiary proceedings typically are the most time
consuming and resource intensive processes that could be selected.
As stated in the proposed rule and adopted under this action, EPA
will post on the e-Manifest website a phone number and an email address
where users may contact the system's billing representatives with any
questions they may have about the accuracy of a monthly user fee
invoice. Whether a fee dispute claim is asserted over the phone, or by
email, EPA expects the facility to provide sufficient information to
support its claim that an invoice is in error. At a minimum, EPA
expects that fee dispute claimants will provide the following
information to the system's billing representatives:
The claimant's name, the facility where the claimant is
employed, the EPA Identification Number of the affected facility, the
date and/or other information to identify the particular invoice that
is the subject of the dispute, and a phone number or email address
where the claimant can be contacted;
Sufficient supporting information or calculations to
identify the nature and amount of the fee dispute, including:
--Whether the error results from the types of manifests submitted being
inaccurately described in the invoice,
--Whether the error results from the number of manifests submitted
being inaccurately described in the invoice,
--Whether the error results from a mathematical error made in
calculating the amount of the invoice, or
--Other information described by the claimant that explains why the
invoiced amount is in error and what the fee amount invoiced should be
if corrected.
EPA's system billing representatives will endeavor to respond to
all such billing disputes within ten days of
[[Page 437]]
receipt of a claim. In their response, the system's billing
representative will indicate whether the claim is accepted or rejected,
and if accepted, the response will indicate the amount of any fee
adjustment that will be refunded or credited to the facility. If the
claimant is not satisfied with the response of the EPA system's billing
representative, the claimant may appeal its claim within ten days to
the Office Director for the Office of Resource Conservation and
Recovery.
EPA further emphasizes that the assertion of a fee dispute claim
through this informal process does not excuse the requirement to make
timely electronic payments of the invoiced fee amounts. Fee adjustments
will be handled as refunds or credits of amounts paid, and the
existence of a claim does not justify withholding payment of invoiced
fees.
Finally, EPA is clarifying that once a claim has been addressed by
the Agency under this informal dispute resolution and appeal process,
the resolution that is reached after appeal to the Office Director
concludes the matter and is non-reviewable by any other Agency official
or in any other Agency proceeding.
I. Conforming Changes to the Paper Manifest Printing Specifications
In March 2005, EPA announced the Manifest Registry system that
described procedural mechanisms and offered federal printing
specifications at Sec. 262.21(f) to ensure that printers approved by
EPA used unique tracking numbers on each manifest, and to reduce the
possibility of printing many variations of manifest forms. As part of
the printing specifications, EPA also required approved printers to
indicate on the bottom, right margin of the form the distribution
scheme so that the form would be distributed as follows:
Page 1 (top copy): ``Designated facility to consignment state''
(if required);
Page 2: ``Designated facility to generator state'' (if
required);
Page 3: ``Designated facility to generator'';
Page 4: ``Designated facility copy'';
Page 5: ``Transporter copy''; and
Page 6 (bottom copy): ``Generator's initial copy.''
However, the e-Manifest regulations and the plans to begin e-
Manifest system operations on June 30, 2018, have necessitated a
conforming change to the current manifest copy distribution scheme.
Currently, the manifest form printing specification requires that the
top copy (Page 1) of the six-copy set of forms be sent by the
designated facility to the consignment or destination state, if
required by that state. However, on February 7, 2014, EPA announced in
its e-Manifest ``One Year Rule'' that when the e-Manifest system
becomes operational, designated facilities must send the top copy (Page
1) of the six-copy paper form to the e-Manifest system for purposes of
data entry and processing. See 79 FR 7518 at 7548. EPA is codifying in
this final rule the regulatory decision EPA announced (but did not
codify) in the February 7, 2014 issuance of the One Year Rule.
Since the states with manifest collection and tracking programs
have continued to collect manifest copies during the planning and
development of e-Manifest, EPA chose to defer the collection of the top
copy by e-Manifest until the e-Manifest system was ready for
operations. With the announcement in the final rule that e-Manifest
system operations will commence on June 30, 2018, it is necessary to
implement with this final rule action this change to the copy
submission requirement, as well as the conforming change to the
printing specifications for manifest printers.
Therefore, the final rule modifies the printing specification
requirements at Sec. 262.21(f)(5) and (f)(6)(i) to align with the new
manifest submission requirement for receiving facilities announced in
the One Year Rule. Thus, by June 30, 2018, approved printers must make
available to users a printed five-copy form that indicates that the top
copy of the manifest must be submitted by designated or receiving
facilities to EPA's e-Manifest system. Manifest users must begin using
the new 5-copy manifest form with this revised copy distribution
notation on June 30, 2018. Specifically, the copies of the form must be
distributed as follows:
Page 1 (top copy): ``Designated facility to EPA's e-Manifest
system'';
Page 2: ``Designated facility to generator'';
Page 3: ``Designated facility copy'';
Page 4: ``Transporter copy''; and,
Page 5 (bottom copy): ``Generator's initial copy.''
This change to the manifest form printing specification will bring
the manifest forms that will be used on or after June 30, 2018, into
alignment with the paper manifest submission requirements that will be
in effect on that date. Beginning on June 30, 2018, the top copy of any
paper manifests that continue in use must be sent to the e-Manifest
system, rather than being sent by the receiving facility directly to
the consignment or destination state. In addition, the new five-copy
form eliminates the copy, previously denoted as ``Page 2: Designated
facility to generator state,'' since the submission of the top copy to
the system by the receiving facility will itself enable both
destination states and generator states to receive their copies from
the system. This is the copy that EPA will use for data entry purposes.
As the central hub for manifest collection, EPA will share these data
with interested states, but receiving facility copies will not be sent
directly to either consignment or generator states on or after June 30,
2018. Therefore, one copy of the current six-copy form set is being
eliminated in the final rule, and the new manifest printing
specifications will require only a five-copy form to be printed and
used beginning on June 30, 2018.\7\
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\7\ The changes to copy distribution requirements in the final
rule affect the receiving facility copies. The e-Manifest system
will not collect generator copies of paper manifests, and states
that still wish to collect paper copies directly from generators may
continue to do so under state law.
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EPA emphasizes that the requirement that receiving facility copies
of paper manifests be submitted to the e-Manifest system rather than
directly to states is promulgated under the authority of the e-Manifest
Act. As such, the requirement for facilities to submit manifest copies
to e-Manifest in lieu of direct submission of these copies to the
states must be implemented consistently in all states starting on the
system launch date of June 30, 2018. As the Agency explained in the One
Year Rule, requirements under state law that are less stringent than or
inconsistent with requirements issued by EPA under the e-Manifest Act
are superseded by the e-Manifest Act requirements when these
requirements become effective on the system launch date. See 79 FR
7554, February 7, 2014. This principle is also codified in this final
rule in 40 CFR 271.3(b)(4), which explains the superseding effect of e-
Manifest Act requirements on less stringent or inconsistent
requirements contained in state law and authorized programs. Finally,
in Sec. 271.12(i), addressing manifest program requirements that must
be included in authorized state programs, EPA is adding a new paragraph
(i)(2) that will require state manifest programs to include a specific
requirement for owners or operators of hazardous waste management
facilities to submit a signed copy of the manifest to EPA's e-Manifest
system in lieu of sending a copy directly to origination or destination
states.
The final rule also revises the printing specification at Sec.
262.21(f)(7) to comport with the aforementioned changes to the manifest
form and continuation sheet. The uniform manifest instructions for
completing the generator's copy, the transporter's copy, and the
designated facility's copy of the manifest and continuation sheet must
now appear on
[[Page 438]]
the back of copies five, four, and three, respectively.
J. Requirement That Facilities Submit Paper Manifest Data Digitally
1. Background
In the User Fee proposed rule, EPA did not propose but requested
comment on an approach under which receiving facilities would be
prohibited from submitting paper manifests by mail to EPA. Instead,
receiving facilities would be expected to submit manifest-related data
to EPA by electronic means only, that is, by uploading image files to
EPA, or by uploading a data file (e.g., JSON file) of manifest data
accompanied by an image file. Although EPA explicitly stated in the e-
Manifest Final rule that the e-Manifest Act and the regulations adopted
by the final rule allow manifest users to continue to use paper in the
field to track their waste shipments, EPA explained in the User Fee
proposed rule that the Agency was considering restricting receiving
facilities to digital submission of their paper manifests for a couple
of reasons.
First, EPA acknowledged in the proposed rulemaking (81 FR 49074,
July 26, 2016) that the proposed differential fee approach should
itself discourage facilities from submitting large numbers of manifests
by mail but conceded that it would be difficult for the Agency to
project with confidence how many paper manifests will be mailed to the
Agency in the initial years of e-Manifest operations. Consequently, the
processing of mailed forms could involve significant personnel and
contractor costs for opening and screening mail, for data key entry,
document archiving, and for QA activities related to resolving data
quality issues. Second, EPA believes paper processing costs could
dominate the O&M costs in the early years of operation, and if mail
submissions occur in unexpectedly large numbers, EPA may need to
increase fees or consume more of its annual spending authority than
anticipated to process mailed manifests. For these reasons, EPA
requested specific comments on the merits of an approach that would
restrict receiving facilities to submitting their paper manifest data
to the Agency by digital methods only, and not by mailing hard copies
to the EPA system.
2. Comment Analysis
Industry commenters to the User Fee Proposal generally supported
limiting receiving facilities' paper submissions of paper manifest
related data to digital format only (i.e., scanned images or data file
with scanned image uploads) and not by mailing paper hardcopies to EPA.
However, several commenters who supported the digital submission
restriction suggested EPA impose a several-year transition period
before instituting the paper submission ban. Other commenters
supporting the paper submission ban suggested EPA provide an exception
to the ban should unforeseen circumstances, such as unanticipated
burdens, data security issues, access issues for responders, and
compliance issues when the system is down or data are lost, occur.
Some state commenters presented mixed comments on the merits of a
mailed paper submission ban. One state commenter supported the paper
copy submission ban, noting that paper infrastructure costs are great,
and the ban would help to reduce uncertainty in fee formula's marginal
cost calculations. Another state commenter opposed an outright ban and
argued that there could be substantial burden and cost for some
facilities to change platforms. The commenter suggested that especially
for those facilities not owned by nationwide companies, the costs to
them of converting to digital only submissions could be prohibitive in
the initial years. The commenter suggested EPA implement a phase-out
deadline of several years for the mailed paper copy submissions.
Finally, one state commenter objected to the ban of postal mail
submissions and argued that EPA has overestimated the sophistication of
some industry members, especially those receiving facilities that are
not RCRA permitted facilities.
3. Final Rule Decision on Facility Submissions of Paper Manifests
After careful consideration of the comments to the User Fee
Proposed Rule, EPA has decided not to implement an outright paper
submission ban. Instead, EPA will initially allow both digital and
mailed manifest submissions from receiving facilities to the system,
but will schedule a phase-out of paper mail submissions after three
years of system operations. EPA made this determination for a few
reasons. First, while EPA acknowledges its decision could result in the
Agency receiving more paper forms in the initial years of operation,
EPA is persuaded by a few commenters' arguments that an out-right ban
on day one of system launch may cause financial hardship to certain
facilities that currently do not have the technological capacity to
digitally submit paper manifest related data to EPA. Second, EPA
concludes that a phase-out approach on a paper submission ban best
accommodates the uncertainty over how many and what types of facilities
might be burdened by the paper submission ban. EPA has consulted
primarily with a trade association (the Environmental Technology
Council) that is comprised of larger receiving facilities, so at this
time the Agency does not know whether mid-size or smaller receiving
facilities would be similarly inclined to submit data files and scanned
images of manifests to EPA and avoid mailing paper forms to EPA for
processing. EPA, however, believes a phase-out scheduled after three
years of system operations provides fairness and flexibility to those
facilities that need time to adjust to electronic manifests and acquire
and develop digital capability.
Finally, this approach is consistent with the e-Manifest Act's
terms allowing the continued use of paper and authorizing EPA to issue
requirements to facilitate transition to electronic manifests. Thus,
the adoption of phase-out approach scheduled after three years in the
final rule best accommodates the Agency's objective of minimizing
mailed paper submissions with our legal authority that allows the
continued use of paper manifests while requiring EPA to issue
regulations to facilitate the transition to electronic manifests.
EPA notes that the aforementioned phase-out of manifest hardcopies
applies only to the backend of the manifest workflow (i.e., manifest
submissions to the EPA system). Hazardous waste generators who
currently initiate their waste shipments using the paper manifest and
continuation sheet (EPA Forms 8700-22 and 8700-22A, respectively) and
want the flexibility to continue to use those forms once the e-Manifest
system becomes available for use, will for now be afforded the
flexibility to continue to use the manifest form and continuation sheet
once the phase-out period begins.\8\ If a receiving facility's customer
prefers to use the paper manifest and continuation sheet after the
phase-out period, then the receiving facility will be expected to
transfer the manifest data from those paper hardcopies to digital
format prior to submitting that data to the EPA system.
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\8\ In section IV of this preamble, however, EPA signals that it
is the Agency's goal to curtail as far as possible the use of paper
manifests and migrate to a fully electronic manifest within five
years of the start of system implementation. EPA will collect
information from the system on manifest usage, monitor this
information, and consult with the e-Manifest Advisory Board in
several years on how best to accomplish this goal.
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[[Page 439]]
K. How does final rule address user fee payment methods?
1. Background
The User Fee proposal included two distinct options for comment:
(1) A monthly invoicing option, and (2) an advance, fixed payment
option. EPA proposed the monthly invoicing option as its preferred
option. Under this option, the Agency would bill each receiving
facility monthly for its actual manifest activity engaged in during the
previous month. The receiving facilities would receive an electronic
invoice displaying their manifest activity during the prior month, and
each facility would be directed to Treasury's Pay.gov website to submit
their electronic payments. Once directed to Pay.gov, the payor could
make their payment using one of the electronic payment methods
supported by Pay.gov. These methods include credit cards, debit cards,
and Automated Clearing House (ACH) debits from commercial bank
accounts. EPA met with the Environmental Technology Council and its
RCRA TSDF members prior to publication of the proposed rule, and
learned that this trade association and its members preferred the
monthly invoice option to the advance fixed payment option.
In the July 26, 2016, proposed rulemaking, EPA requested public
comment on the advance, fixed payment option. With this option, EPA
explained that receiving facility users would make a monthly fixed
amount payment on the first of each month. The monthly payment amount
would be determined using an estimate of expected manifest usage for
the year, based on manifest usage during the prior year. The prior
year's manifest use numbers would be totaled by manifest type and
divided by 12 to arrive at the estimates of monthly manifest usage. The
monthly manifest fee would be calculated by applying the fee schedule
amounts to the monthly manifest usage estimates. Once so determined,
the monthly fee amount to be paid to EPA would remain fixed for the
entire year, and this fixed amount would be debited from the receiving
facility's commercial bank account by an Automated Clearing House (ACH)
debit on the first of each month. The fixed payment feature was
included so that this payment option would be consistent with the
standards of Pay.gov for recurring periodic payments.
EPA explained in the proposed rulemaking that the Agency believes
advance payment is advantageous, from an administrative perspective,
because such payments would allow for the collection of fees in advance
of manifest services, which is administratively efficient on the front-
end of the collection process. Such an approach also could provide a
more stable revenue stream to cover system costs throughout the year,
because of the nearly automatic, scheduled nature of the payments. This
feature of the advanced payment option also could generate revenue more
promptly for the initial year of system operations. However, the
receiving facilities that the Agency consulted expressed some
skepticism about this payment option, as an estimated payment would not
be as accurate as payments invoiced from actual usage. These facility
representatives advised that there can be significant variability from
year-to-year in manifest usage, so the estimated payments collected
through the advance payment approach may diverge significantly from the
payments that would be owed based on actual usage.
To address this issue, EPA explained in the proposed rule that it
would send one invoice to receiving facilities at the end of each year
to reconcile the amounts paid based on manifest use estimates with the
actual amounts owed as calculated from actual manifest usage data.
Thus, this option would involve a reduced volume of invoicing compared
to monthly invoicing, with resulting lower administrative costs to the
Agency. Moreover, the revenue stability risk posed by the two-month lag
inherent in monthly invoicing would be ameliorated by this alternative,
with its automatic payments each month. Stakeholders stated that there
would likely be resistance to automatic, estimated payments, unless EPA
identified clear incentives for this option.
More recently, EPA convened the e-Manifest Advisory Board in
January 2017 and sought guidance on how to address comments received on
the advance, fixed payment approaches detailed in the proposed rule.
During the Advisory Board meeting, the EPA stated that the Agency
anticipates that the e-Manifest system will be operational in June
2018, assuming that the Agency receives adequate funding in fiscal
years 2017 and 2018. At that time, EPA will transition to a fee
collection system, and the majority of appropriated funds for e-
Manifest in fiscal year 2018 will be used for operating and maintaining
a paper processing center and IT help desk. While EPA expects to
recover these costs through fees, EPA acknowledged at the Advisory
Board meeting that a cash flow issue could arise as the system
transitions from the developmental to fully operational stage and
underscored that the advance monthly invoicing option could mitigate
the potential cash flow problems during the initial years of system
launch if the funds appropriated for operations were inadequate.
2. Comment Analysis
Comments received on the proposal and recommendations presented by
the E-Manifest System Advisory Board in January 2017 generally
supported the monthly invoicing option, while most comments opposed the
advance payment approach. Industry and several state commenters
generally supported the monthly invoicing and indicated that paying for
actual usage on a monthly basis was the more precise option, and was
more consistent with common commercial practice. Industry commenters
argued further that it would be difficult to develop accurate manifest
use projections needed for an advance option and stated pre-paying in
advance could result in substantial under or over payments requiring
later reconciliation, which could adversely impact system financial
stability. One state commenter affirmed this sentiment and questioned
how EPA would prevent advance payers from greatly underestimating usage
for the year, and then owing huge balances at the end of the year. One
industry commenter suggested the monthly invoicing is the most logical
approach and will work well with the TSDF's process of invoicing their
customers (manifest generators) for the associated manifest fees
following acceptance of the waste shipments. Although most commenters
supported monthly invoicing, a few stated 30 days is insufficient to
pay invoices and suggested 45 or 60 days is a more realistic time
frame. Finally, one commenter suggested EPA utilize the advance payment
approach as a sanction for those who are chronically late with their
fee payments.
While most commenters supported monthly invoicing, a few commenters
supported advance, fixed payments. One state commenter supported the
advance payment option because it is the least burdensome to the Agency
to administer and most stable for the system. This commenter, however,
suggested EPA create capacity to invoice a small number of smaller
TSDFs or the non-permitted state-regulated facilities. Another
commenter suggested that EPA retain advance payments as an option,
because it could gain greater participation after TSDFs have a few
years of experience with the e-Manifest system.
3. Final Rule Decisions
EPA is persuaded by the comments supporting the monthly invoice
[[Page 440]]
proposal and the recommendation of the e-Manifest Advisory Board to
promulgate the proposed payment method whereby e-Manifest user fees
will be paid by facilities in response to a monthly invoice that
summarizes manifest activity for the prior month. EPA, however, does
not accept the suggested preference to allow TSDFs up to 60 days to pay
invoices. The monthly invoicing option by its nature introduces a lag
of perhaps two months between the time manifest services are used and
the time when payments are received. This delay is unavoidable, as the
invoice would be sent after a month of usage has occurred, and the TSDF
would then be expected to make their payment on the invoice's due date
of 30 days post-receipt of the invoice. Extending the proposed time
frame from 30 days to 60 days would further increase the lag time from
two to three months. EPA is concerned the additional lag time could
further undermine EPA's ability to pay promptly its system related
expenses, and exacerbate the revenue instability risks posed during the
initial year of operations. Therefore, e-Manifest fees must be paid by
facilities by 30 days from receipt of an invoice, and payments not paid
by this date will be treated as delinquent by the Agency.
Specifically, the rule promulgates the monthly invoice approach per
the proposed regulation at 40 CFR 264.1314(c) and 265.1314(c).
Receiving facilities will be required to pay all fees owed in response
to an electronic invoice or bill within 30 days of the date of the
invoice or bill. E-Manifest fees will be paid on-line via credit card
or electronic fund transfer. To submit a payment on-line, facilities
will visit www.pay.gov, and follow the instructions posted to the e-
Manifest program's website on how to make e-Manifest electronic fee
payments.
Automatic debits to your business account may be blocked by the
bank. This security feature is called an ACH Debit Block, ACH Positive
Pay, or ACH Fraud Prevention Filters. ACH Debit Block works by having
an allowed list of ACH Company IDs. The list enables allowable
automatic debits. If the ACH Company ID accompanying a request for an
automatic debit is not on the allowed list, the payment is rejected. It
is returned with an ACH Return Reason Code of R29--Corporate Customer
Advises Not Authorized. You must contact your bank to add the U.S. EPA
to your list for allowed debit payments.
L. Transporter Changes on the Manifest While En Route to the Designated
Facility
1. Background
The User Fee proposed rule proposed to modify the current
regulations regarding transporter changes to shipment routing
information on the manifest during transportation. The Agency proposed
on July 26, 2016, to amend paragraphs (a) and (b) of 40 CFR 263.21 so
that changes to shipment routing on the manifest can be made: (1) To
address an emergency; or (2) to accommodate transportation convenience
or safety, e.g., to allow more efficient transport from a transfer
facility or enable the substitution of a transporter that is the sub-
contractor of the designated transporter. In addition, the proposal
indicated that a change in transporter designation on the manifest
could be effectuated by: (1) A consultation with the generator and
generator approval of the change; or (2) a contractual provision
authorizing the transporter to make such a change on behalf of the
generator. See 81 FR 49072 at 49104.
EPA explained in the proposed rule that the aforementioned
modifications to the regulation were needed for a several reasons.
First, the amendments to the regulation are necessary to align them
more closely with the current industry practice of allowing transporter
changes to shipment routing on the manifest, as the transporters and
brokers often have more expertise than some generators in arranging the
logistics and routing of hazardous waste shipments. The proposed rule
also recognized that many hazardous waste generators, particularly
small quantity generators, are willing to delegate the responsibility
of arranging waste shipments to their brokers and transporters. Current
manifest regulations limit waste shipment delivery options to only the
facilities or transporters designated on the generator's manifest,
unless an emergency condition prevents delivery to the designated
facility or the next transporter. Thus, under existing regulations, any
changes to the routing plan, including changes to transporters
designated on the manifest, require generator consultation and
approval.
Second, industry stakeholders have argued for years against the
Agency's notion that the generator should bear the sole responsibility
for designating the routing of its waste on the manifest and must be
consulted explicitly on any proposed changes to named transporters
during transportation. Industry transporters contend that transporter
changes to the initial routing of hazardous waste shipments are often
necessary to accommodate transportation convenience or safety (e.g., to
allow more efficient transport from a transfer facility or enable the
substitution of a transporter that is the sub-contractor of the
designated transporter). Further, industry stakeholders have stated
that a limited agency authority granted to transporters in the service
contracts with their generator customers should allow them to act ``on
behalf of'' and change the routing for the generator without specific
consultation with the generator on each change (81 FR 49096, July 26,
2016).
Finally, EPA consulted with our authorized states on this issue,
and the Agency has concluded that the states generally have not
actively pursued enforcement actions against transporters who have made
these types of transporter changes to the manifest under the existing
regulation. Amending the regulation as proposed would make the language
of the transporter regulations consistent with industry practices.
2. Comment Analysis
Comments received to the User Fee proposed rule generally supported
the proposed changes to paragraphs (a) and (b) of 40 CFR 263.21, but a
few raised questions about the details of implementation. One industry
commenter supported the proposed changes, but suggested EPA clarify
what statement needs to be entered on the manifest to ``describe the
contractual authorization'' given a transporter to act as generator's
agent. Another industry commenter in support of the proposal, suggested
that EPA allot space, other than Item 14, on the manifest so that the
contract information can be recorded.
State commenters generally supported the proposal, but raised
questions about the details of implementation. One state commenter
suggested that EPA add a definition of ``agency authority'' and require
legible changes. Another state commenter inquired how an inspector will
know which generators have such contracts, and asked if the generator
or transporter will be responsible for keeping the records of such
contracts. The commenter also asked whether the contract authorization
details would be recorded in Item 14 or in a separate data element on
the manifest form.
A few commenters, however, did not support the proposed changes for
various reasons. One commenter argued that re-routing is already a
common industry practice that does not require rule change for support.
Other commenters opposed listing contract
[[Page 441]]
arrangements on the manifest and argued that the receipt of manifest
copies displaying the routing changes was adequate. One commenter
representing the generator sector opposed the proposal and raised
concern that the proposal may affect the generator's liability or
responsibility for compliance with the generator requirements of RCRA
Subtitle C.
3. Final Rule Decision
After careful consideration of all comments on this issue, EPA is
promulgating in the final rule the proposed changes to paragraphs (a)
and (b) of 40 CFR 263.21 virtually unchanged. Specifically, EPA is
promulgating proposed paragraph (a) and proposed Sec. 263.21(b)(1),
(2), and (4) without change. EPA, however, is promulgating the proposed
Sec. 263.21(b)(3) in the final rule with slight modification. EPA
accepts the commenter's suggestion that the Agency clarify the
statement needed to be recorded in Item 14 of the manifest to
characterize the contract authority given to a transporter to act as a
generator's agent. Therefore, EPA is modifying the proposed Sec.
263.21(b)(3)(ii) so that transporters or brokers who intend to oversee
and control the routing of the shipments on behalf of the generator
must enter the following statement in Item 14 of the manifest:
``Contract retained by generator confers agency authority on initial
transporter to add or substitute additional transporters on generator's
behalf.''
In addition, EPA concludes that this standard statement should meet
state concerns and enforcement needs. The statement provides explicit
direction to generators who have granted agency authority to
transporters to maintain a copy of the contract. Second, the statement
adequately articulates the limited agency authority granted to the
transporter service company by the generator. Thus, the states could
pursue enforcement actions against generators for failure to produce
the contract upon request as well as enforce actions against
transporter service companies for failure to comply with the statement
recorded in Item 14.
The Agency acknowledges one commenter's assertion that Item 14 is
overused, but does not accept the suggestion for recording the contract
details in a separate line item on the manifest. The Agency believes
the contract authority language detailed in new Sec. 263.21(b)(3)(ii)
is brief and should not inhibit the generator's ability to legibly
record other manifest information about the shipment in the restricted
space. However, EPA acknowledges that the commenters' suggestion is
worthy of further consideration for e-Manifest and may pursue such a
separate data field within the electronic system as it continues its
development of the e-Manifest system.
The Agency disagrees with the commenter that the aforementioned
changes to 40 CFR part 263 do not require a rule change for support.
The adoption of these regulatory changes in this final rule is a shift
in EPA's longstanding policy that the generator must control the
routing of his or her hazardous waste shipment, and that changes to
routing must occur with generator consultation and approval, and are
appropriate in cases of emergencies. The adoption of the 1980 final
manifest regulation and the prior policy were based on prominent pre-
RCRA incidents in which transporters and brokers had diverted hazardous
waste shipments to unauthorized sites involving ``roadside'' or
``midnight'' dumping. Thus, previous policy underscored the intention
of the 1980 regulation that the generator should bear primary
responsibility for designating the routing of its waste on the manifest
and for ensuring delivery of its waste to proper waste management
facilities. The new regulatory policy extends the process for effecting
changes beyond consultations to include an agency contract to make
these changes on behalf of the generator. The new policy also extends
the conditions permitting such changes beyond emergencies to include
transporter convenience and safety. EPA concludes that a regulatory
change is necessary to avoid any confusion about what transporter
changes are permissible, under what circumstances they are permissible,
and how these changes should be effected. The rule change should also
protect industry members from any enforcement actions that could result
from regulators enforcing the stricter policy of generator control
suggested by the current regulation. The adoption of the final rule
will help to maintain a consistent national policy on the manifest,
particularly as the Agency continues its efforts to establish the e-
Manifest system. Industry practice, regulatory policy, and state
enforcement policies will now be better aligned, and EPA can develop
technical requirements for the e-Manifest system that are consistent
with this policy.
The adoption of the amendments to 40 CFR 263.21 recognize two
distinct classes of transporters involved in changes to shipment
routing on the manifest. First, Sec. [thinsp]263.21(b)(2) applies to
those transporters that lack contractual (agency) authority to act on
behalf of the generator in making any transporter substitutions or
additions. For such transporters, this final rule will continue the
existing requirement to consult with the generator and obtain the
generator's explicit approval of the proposed changes in the shipment's
routing. The final rule authorizes changes in circumstances of an
emergency, as well as for purposes of transporter efficiency,
convenience, and safety.
Second, Sec. 263.21(b)(3) applies to those transporters that have
contractual authority to act as the agent of the generator with respect
to adding or substituting other transporters while hazardous waste is
in transport. The transporter making such changes must record the
aforementioned statement regarding its contractual authorization in
Item 14 of each manifest for which such a change is made. In addition,
Sec. [thinsp]263.21(b)(4) clarifies that any such grant of authority
by a generator to a transporter to act on the generator's behalf in
making changes to transporter designations does not affect the
generator's liability or responsibility for compliance with the
generator requirements of RCRA Subtitle C. The final rule provides that
transporters acting under agency authority on behalf of the generator
may add or substitute another transporter in circumstances of an
emergency, as well as for purposes of transporter efficiency,
convenience, and safety.
Finally, the existing provisions of Sec. [thinsp]263.21(a)(1),
(2), and (4), addressing the conditions and process by which a
generator must, under an emergency situation, be consulted on and
approve any change to the designated facility, the alternate designated
facility, or the place outside the United States designated by the
generator for delivery of export shipments, are not altered by the
adopted regulatory changes.
The Agency notes that the revisions adopted in this final rule only
authorize limited agency authority to the transporter service company
to make changes to the designated transporters on the manifest, on
behalf of the generator, while the generator's shipment is en route to
the designated receiving facility. They do not authorize any broader
agency authority to a transporter to act ``on behalf of'' generators
with respect to other generator responsibilities. For example, a
transporter cannot assume broad agency authority to substitute a
different designated facility or alternate facility, or, for exports,
the receiving facility outside the U.S. designated by the generator,
without consulting the generator. Nor could a transporter
[[Page 442]]
assume the responsibility to maintain a generator's manifest records
and submit Exception Reports or resolve discrepancies on behalf of the
generator. These are control and oversight functions that must remain
with the generator.
In addition, as explained in the proposed rulemaking (81 FR 49096,
July 26, 2016), this regulatory change with respect to manifest changes
during transport does not grant transporters (acting as agents for
generators) the authority to correct the waste description data (e.g.,
quantities, types, shipping names, waste codes) entered on the
manifest. If such changes are necessary, then the transporter must
consult with the generator and revise the manifest according to the
generator's instructions.
Finally, the amendments do not affect EPA's adoption of the
Department of Transportation's Hazardous Materials rules and policies
in the March 2005 Manifest Revisions rule pertaining to ``offerors''
and pre-transportation functions for hazardous waste shipments. The
offeror authority does not apply to activities that occur during
transport. Therefore, a generator's transport contractor can act on
behalf of the generator in its capacity as offeror for pre-transport
functions, and under this action, the generator's transport contractor
could modify the manifest on behalf of the generator during
transportation, but only to modify the transporter designations
pursuant to authority granted by the generator in its contract for this
purpose.
M. Mixed Paper and Electronic Manifest Transactions
1. Background
In EPA's One Year Rule, the Agency determined not to allow mixed
paper and electronic manifest transactions. This decision was codified
in 40 CFR 262.24(c), which addresses restrictions on the use of
electronic manifests. See 79 FR 7518 at 7549 (February 7, 2014). The
final regulation at Sec. [thinsp]262.24(c) states that a hazardous
waste generator may prepare an electronic manifest for tracking waste
shipments ``only if it is known at the time the manifest is originated
that all waste handlers named on the manifest participate in the
electronic manifest system.'' In the User Fee Proposed Rule, EPA raised
the specific issue of allowing mixed paper and electronic manifests in
the limited circumstances of completing and signing the generator's
initial copy of the manifest. EPA explained in the proposed Fee Rule
that a policy banning all mixed manifests, without exception, could be
too restrictive and might rule out needed implementation flexibility at
generator sites where a phase-in of electronic manifesting could be
particularly helpful. 81 FR 49072 at 49099.
Therefore, EPA proposed for public comment an approach at Sec.
262.24(c)(1) that would relax the mixed (also referred to as hybrid)
manifest ban in limited circumstances. EPA proposed to allow generators
to choose to complete and sign a paper manifest in the conventional
manner, to obtain the ink signature of the initial transporter at the
time the transporter acknowledges its receipt of the hazardous wastes
for transportation off-site, and to retain this ink-signed paper copy
among its records as the initial generator copy of the manifest. For
the generator, the manifest would operate exactly as the current paper
system. However, the initial transporter and subsequent handlers would
execute the same manifest electronically, presumably on portable
devices, and all handlers subsequent to the generator would sign the
electronic manifest with their electronic signatures. The final copy
signed electronically by the receiving facility would be submitted to
the system and retained as the copy of record of the shipment, while
the initial generator copy would remain as a paper copy at the
generator site.
2. Comment Analysis
Industry comments from the Environmental Technology Council (ETC)
and its waste receiving facility members generally supported the
proposed hybrid option, noting that there would be significant
challenges for both generators and transporters in adopting electronic
manifesting. The ETC and members supported the flexibility in the
proposed hybrid, and suggested that the proposed mixed manifest
approach could be part of the solution to the larger implementation
challenge of integrating all waste handlers into e-Manifest. The
comments further suggested that the hybrid might help to avoid a
situation where EPA might ``flip a switch'' and attempt to implement e-
Manifest for all waste handlers all at once.
Emphasizing the need for a broader solution, the ETC and its
members responded to the proposal with comments advocating a more
comprehensive phased implementation of the electronic manifest system,
involving three phases. Under Phase I, the paper manifest process would
continue as under current rules, but receiving facilities would convert
their paper manifest data to CROMERR certified electronic data files
for upload to EPA's national data system. Under Phase II, EPA would
place its emphasis on preparing generators for e-Manifest
implementation, conducting outreach on generator administrative
requirements, and enabling generators with system access to receive
their final signed manifest copies electronically through the system.
Finally, in Phase III, EPA would adopt full implementation of
electronic manifests by generators, transporters, and receiving
facilities. The ETC comments suggested that this phased approach could
progress in an orderly manner, with about six months between the
several phases. Commenters supporting this phased approach further
suggested that the collection of full user fees be deferred until Phase
III. These commenters suggested that EPA only impose a ``nominal fee''
in Phase II, measured only by the costs of EPA receiving the uploaded
data, thereby reducing any ``sticker shock'' that would be faced by
users when initially confronted with the new system's user fees.
One industry commenter expressed frustration with the lack of real
progress in developing e-Manifest, and suggested that the effort should
end with the Phase I approach described earlier, or, wait for the
Department of Transportation to proceed with electronic shipping papers
for Phase II. Another, commenter remarked that it was not clear how the
hybrid manifest option would affect EPA's stated goal in the fee pivot
discussion of reaching 75% electronic manifest usage in four years. The
commenter asked whether the ``hybrid'' manifests would count toward
EPA's 75% electronic use goal that determines if the fees will pivot.
Other industry and state commenters objected to EPA's hybrid or
mixed manifest proposal, stating that it possibly would produce severed
manifests with conflicting paper and electronic versions that would
remain disconnected in the system. Several commenters noted as well
that the hybrid proposal was incomplete in not describing fully how
waste receipt confirmations, exception reporting, and other downstream
processes will be conducted if only the generator has the paper form.
These commenters argued that regulations hold the generator responsible
for what is on the manifest, but if the receiving facility later
changes the electronic version, the generator may not be made aware.
These commenters questioned how generators could remain liable for
manifest data that ultimately appears on an electronic version that
they may not see.
[[Page 443]]
More recently, EPA convened the first e-Manifest Advisory Board
meeting in January 2017. At this meeting, EPA presented on the proposed
hybrid option and the aforementioned phased implementation approach
presented in industry comments. The Advisory Board members generally
supported a phased approach that would initially continue the paper
manifest process through the transportation and delivery of hazardous
waste shipments, and then allow the receiving facilities to upload
electronically the certified data from their paper manifests to the
system. However, in response to suggestions from generator members of
the Board, this discussion concluded with the suggestion that the
receiving facility should also upload a scanned image of the final,
signed paper manifest to the EPA system with the data file.
3. Final Rule Decisions
After careful consideration of the comments received on the
proposed rule, EPA has elected to promulgate in the final rule the
mixed manifest proposal announced in the proposed rule. Therefore, this
action modifies Sec. 262.24 by adding paragraph (c)(1) as proposed.
Under this regulation as amended, generators who wish to initially
track their shipments by paper will complete and sign a paper manifest
in the conventional manner and obtain the ink signature of the initial
transporter at the time the transporter acknowledges its receipt of the
hazardous wastes for transportation off-site. Generators will retain
this ink-signed paper copy among their records as the initial generator
copy of the manifest. The initial transporter and subsequent handlers
will complete the remainder of the manifest copies electronically. The
final copy signed electronically by the receiving facility will be
submitted to the system and retained as the copy of record of the
shipment, and distributed to waste handlers and interested states via
the system. The initial generator copy will remain as a paper copy (or
stored image) at the generator site, and will be available there for
inspection.
EPA also sees substantial merit in the receiving facilities'
several comments urging EPA to implement e-Manifest under a phased
approach. Some confusion has arisen surrounding the hybrid manifest
concept, as it has been used to describe both the mixed manifest
regulatory change that EPA proposed in the July 26, 2016 proposed rule,
as well as to describe the industry's recommended phased system
approach. However, while the hybrid and phased approaches are
complementary, and both involve some combination of paper and
electronic processing, they do differ in important respects.
The mixed manifest approach finalized by EPA in the rule is by its
nature an electronic manifest, with a narrow exception allowing the
generator only to sign and retain a paper copy.\9\ However, this
manifest will originate in the e-Manifest system as an electronic
manifest, it will be assigned a unique manifest tracking number by the
system; all subsequent tracking of the waste shipment and all manifest
signatures executed during its transportation and delivery will be
conducted electronically through the system. The creation of a paper
manifest copy from the system generated manifest is merely an
accommodation to the generator, while all other aspects of the
transaction and shipment tracking are through an electronic manifest.
Thus, manifests prepared and executed in this manner will be regarded
and processed as electronic manifests, and will be subject to the fees
for electronic manifests. To further clarify the status of these hybrid
or mixed manifests as electronic manifests, the final rule also
provides that the Sec. Sec. 264.1310 and 265.1310 definitions of
electronic manifest submissions include the mixed or hybrid manifests
authorized in the final rule at Sec. 262.24(c)(1).
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\9\ The initial transporter would sign this copy by hand as
well, enabling the generator to retain its initial copy signed by
the transporter to acknowledge receipt of the waste. The initial
transporter also would sign this manifest electronically in the
system, and all subsequent tracking and signatures would be
conducted electronically through e-Manifest.
---------------------------------------------------------------------------
The industry recommended phased approach, particularly during
phases I and II, is not per se an electronic manifest. A closer
evaluation of the phased approach discloses that during at least the
first and second phases, it is expected that the paper manifest will
continue to be used during the actual tracking of the waste shipment
through its transportation and until delivery of the waste to the
receiving facility. Because the tracking of waste transportation and
delivery to the facility is conducted with paper manifests, and all
manifest signatures are collected as conventional ink or by hand
signatures, these are by their nature paper manifest transactions,
rather than electronic manifests. However, there is an electronic
transaction conducted in the e-Manifest system by the receiving
facility post-receipt, and this consists of the upload of the manifest
data derived from the received paper manifests to the e-Manifest system
for processing. This latter, electronic transaction is executed as an
electronic data file and image file upload to the system, with a
CROMERR compliant certification by the facility owner or operator. As
this is a transfer of data from paper manifests, not electronic
manifests, the manifests processed in this manner would be charged the
scheduled fee for paper manifests submitted as a data file with an
image file attachment.
EPA agrees that there are advantages to the phased approach to
implementation suggested in the industry comments. First, EPA agrees
that the suggested Phase I is a useful way to commence e-Manifest
operations, as it will enable EPA to establish for the first time a
national data-base system containing all manifest data from all
sources, and allow the collection of fee revenues (based on paper
manifest processing fees) so as to fund the system's development and
operating costs in a self-sustaining manner. This system also will be
available on Day 1 for fully electronic manifesting by those able to do
so.
Second, the Agency also agrees that industry's suggested Phase II,
involving significant generator outreach and the electronic transmittal
of final manifest copies to participating generators, has considerable
merit to it. In fact, the regulations EPA developed in the One Year
Rule already support the industry phased approach. In the One Year
Rule, the Agency provided that paper manifests could continue to be
used in waste tracking, and that receiving facilities could submit the
data from such paper manifests to the system as a data file in JSON or
similar data exchange language, with the inclusion of the paper
manifest image file.\10\ Thus, all the regulatory authority needed to
support Phases I and II of industry's phased approach was promulgated
by EPA previously in the One Year Rule, and the final rule clarifies
the fee that will be assessed for these transactions. EPA also
emphasizes that to support this effort, it is currently conducting
outreach to encourage user/stakeholder engagement and participation to
enhance e-Manifest participation once the system becomes available for
use. As
[[Page 444]]
part of this effort, EPA's intention is to offer open forums prior to
system launch that promote the opportunity for stakeholders to
participate in user testing and to continue Advisory Board meetings
during the progression of the e-Manifest system launch.
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\10\ While the discussion by Advisory Board Members in January
2017 recommended that an image file be included as an additional
element in the phased implementation approach, EPA notes that the
inclusion of the image file was already required by EPA regulation
as a necessary component of a data file upload from paper manifest
records. The image file upload, however, is not a part of the mixed
electronic/paper manifest process, as the receiving facility
submission is an electronic manifest that will be processed without
any manual image uploads.
---------------------------------------------------------------------------
Nevertheless, there are aspects of the commenters' phased approach
that concern EPA. While there is considerable detail on the objectives
for suggested Phases I and II, which continue the use of paper
manifests, the comments provide little detail on how the regulated
community would move from Phases I and II to a fully electronic
manifest in Phase III, and how that would be accomplished in six
months. Without more detail, the industry's phased approach appears to
lack incentives for facilities and other handlers to adopt fully
electronic manifesting and finally transition to the desired paperless
manifest. Therefore, while we believe the commenters' phased approach
presents a useful starting point for setting up and operating an
initial fee-worthy e-Manifest system and data-base, we will need to
explore carefully with stakeholders what additional steps and phases
will be necessary to establish a credible path to a widely adopted
electronic manifest.
EPA is finalizing the mixed manifest regulation with this action,
because we believe it could be a useful component in the phased
strategy suggested by the industry commenters. The mixed manifest or
hybrid manifest enables an electronic manifest to be initiated in the
system and executed electronically through the transportation and
delivery phases of a waste shipment, allowing only the generator to
retain a paper copy signed with conventional ink signatures. EPA
developed this regulation on account of perceived challenges for
generators to participate in a fully electronic workflow, so the mixed
manifest could permit more of these waste shipments to originate and
conclude electronically, by accommodating the generator with a paper
copy for its files only. Admittedly, the hybrid approach will only
become useful as part of the phased implementation strategy when there
are receiving facilities working in concert with transporters (their
own or independent) that are willing to install portable devices on
their transport vehicles and take the electronic manifest out into the
field to the generators. These are important links that must be put in
place for electronic manifesting to achieve widespread adoption, and it
will be a focus of our discussions in the near term with the user
community and the e-Manifest Advisory Board.
EPA is not persuaded by comments suggesting EPA retain the mixed
manifest ban announced in the One Year Rule. EPA acknowledges that the
mixed manifest approach promulgated in the final rule may present some
of the same difficulties that caused EPA to reject a mixed manifest
approach in the One Year Rule. In particular, there is in fact some
complexity that arises from allowing a paper copy to remain at the
generator site, severed from the electronic version that continues in
play with subsequent handlers. The severed nature of the manifest
presents issues for generators in monitoring the progress of their
shipments, and it results in the generator copy being available for
inspection only at the generator's site, and not through the system.
This problem is amplified if the electronic version undergoes editing
and markup while the shipment continues to the receiving facility.
However, given the substantial challenges faced at generator sites in
the initial implementation of e-Manifest, EPA continues to believe
there could be merit to this hybrid option, as it will enable many of
the desired efficiencies and burden reductions of electronic
manifesting to occur beyond the generator site. Any drawbacks posed by
the presence of mixed manifests should be surpassed by the advantages
and efficiencies of executing and transmitting more manifests
electronically, particularly as an interim solution prior to the
adoption and widespread use of fully electronic manifests by
generators.
While the severed manifest issues are not insignificant, there are
workarounds available. EPA expects that all generators will be afforded
access to the e-Manifest system, whether or not they choose to
participate in executing manifests electronically. Generators will soon
be able to obtain access credentials and will then be able to view the
final copies of manifests that will be distributed by the system. So,
any changes made to mixed electronic manifests by subsequent handlers
should be apparent to the generator when they view the final manifest
copy from the system. Generators viewing their final manifest copies
distributed by the system will thus be able to participate in the
corrections process, respond to discrepancies, and note any exceptions,
as they would if receiving a paper manifest through the mail. EPA does
not believe it is placing great demands on generators insofar as
expecting them to obtain access credentials and monitor their manifest
activity in the system. While this will initially involve generators
having to compare their initial paper manifest copies with a later
delivered electronic file accessed in the system, any complexity in
this result should only persist during the time that the user community
is transitioning from paper to electronic manifesting. Electronic based
transactions are becoming the norm in all walks of life, and the
manifest user community must be prepared for the transition to
electronic tracking of hazardous waste shipments with e-Manifest.
With respect to other comments submitted on the phased
implementation of e-Manifest, EPA cannot accept the commenters'
suggestion to only accept a nominal fee initially through Phase II, and
defer full payment of manifest transactional fees until Phase III. As
explained in Section III.C of this preamble, the final fee methodology
and fee schedule prescribed in this rule must cover all system related
costs for all of EPA's activities related to developing and operating
e-Manifest, including costs to process paper manifests that continue in
use. Our differential fee methodology is based on workload models that
project the labor and other costs of processing each type of manifest.
The fees also include a component to recover our system development
costs, which the fee methodology is amortizing over a five-year period.
Any effort at manipulating the fees to defer their full impact until
later phases would only mean that the fees would be enhanced later to
recover any deferred revenues, which would possibly cause the fees to
seem excessive to some users when so adjusted. In addition, this
suggestion would likely further aggravate revenue stability issues for
EPA during the initial years of operation, when ensuring a stable
revenue stream may be most essential.
EPA rejects the industry commenter's suggestion that e-Manifest
efforts conclude with the Phase I solution (paper manifests with only a
data upload from the receiving facility), or that our implementation
efforts on e-Manifest await progress by DOT on its electronic shipping
paper initiative. The Congress has mandated in the e-Manifest Act that
EPA develop a national tracking system for hazardous waste shipments,
and that we coordinate with DOT on this effort. While EPA is very
interested in the progress of DOT's electronic shipping paper pilots,
that effort is not conceived at this time as a national system approach
such as that mandated for e-Manifest, so there are only so many
[[Page 445]]
synergies that can be exploited between these efforts. The Agency will
continue to consult with DOT as we develop and implement the e-Manifest
system.
Finally, concluding the e-Manifest effort with the industry
suggested Phase I system is not an acceptable outcome to the Agency.
Phase I as the end point would essentially leave the paper manifest
system in place indefinitely. The e-Manifest Act mandate for an
electronic manifest system was not motivated solely by the desire to
develop a national data-base of waste shipment data. The Act also
contemplated that the national e-Manifest system would produce
paperwork burden reductions by migrating to a paperless manifest. The
significant cost and burden reductions identified with the e-Manifest
project will only be realized when paper manifests are minimized and
ultimately eliminated.
While the Agency appreciates the suggestion of industry commenters
that the execution of their suggested phased approach can be
accomplished in a little more than a year's time, we believe that the
migration to widespread use of electronic manifests will likely take
several years to accomplish. In short, the phased approach presented by
commenters is commendable, but EPA would be very concerned if progress
on electronic manifesting were to stall at Phase I or Phase II, and
paper manifesting with a back-office data upload from facilities was
the end product of the effort. Progress toward the fully electronic
manifest must be maintained and monitored.
Therefore, EPA is announcing that it intends to monitor the
progress toward electronic manifest adoption and report this progress
annually to stakeholders and to the e-Manifest Advisory Board. In
section III.J. of this preamble, EPA signaled that beginning June 30,
2021, it will not accept mailed paper manifests from facilities for
processing in e-Manifest. It is further EPA's intent that the use of
paper manifests, and the submission of data from paper manifests,
whether by image files or data file uploads, be curtailed by June 30,
2023, that is, after five years of system implementation.
After three years of system implementation, EPA will collect
information from the system on the trends reported on paper and
electronic manifest usage, and present this information to the e-
Manifest Advisory Board. We will examine these data closely to
determine if mailed paper manifest submissions have been eliminated; if
we are on track to meet the 75% electronic manifest usage goal by year
four (which affects this rule's possible fee pivot); and if we are
seeing meaningful progress toward the widespread adoption of electronic
manifesting. If the Agency should find that meaningful progress is
lacking, we will seek the Board's advice on what combination of
incentives or restrictions (e.g., a regulatory ban of paper manifest
use after 2023), or other measures should be implemented to accomplish
the program's goal of realizing all the efficiencies and benefits of an
electronic manifest system. We will also examine the trends in relation
to the use of the hybrid or mixed manifest approach by generators, and
seek the advice of the Advisory Board on whether it is aiding or
hindering the adoption of electronic manifesting, and whether it should
perhaps be phased out as well.
N. Removal of Part 262 Appendix From the Code of Federal Regulations
Since the adoption of the Uniform Manifest in 1984, EPA has
published the Uniform Manifest (EPA Form 8700-22), the Manifest
Continuation Sheet (EPA Form 8700-22A), and the corresponding
instructions for completing each of these forms in a distinct appendix
published at the end of 40 CFR part 262. This means that any change to
the forms required costly and time-consuming rulemaking. This practice
has continued for more than 30 years, despite the fact that the Agency
must also comply with the regulations implementing the Paperwork
Reduction Act (PRA) at 5 CFR part 1320. Specifically, pursuant to the
PRA, the Agency must receive approval from the Office of Management and
Budget (OMB) for any substantive or material change it seeks to make to
the two forms (OMB control number 2050-0039). As part of these
requirements, among other things, the Agency must include as part of
its request for OMB clearance, evidence that it informed and provided
reasonable notice to the public of changes it seeks to make to the
forms as well as an estimate of the burden resulting from the changes,
provided the public with an opportunity to comment on the changes, and
an explanation of how the Agency addressed those comments. In fact,
even if the Agency does not seek to make any changes to the forms, it
must seek approval from OMB for continued use of the forms every three
years.
While the codification of these forms and their instructions in an
appendix to part 262 may have been a useful means of publishing the
details of the manifest forms and their use to the regulated community
in the 1980's when there was no internet, EPA believes that this
codification no longer serves that purpose. This conclusion follows
from the impending availability of these forms and their instructions
on the Agency's internet domain. Codification of these forms in part
262 is also duplicative with the management of the manifest's
information collection requirements under the PRA. The manifest and
continuation sheet forms displayed in the current appendix only display
one sample copy of the multi-copy manifest and continuation sheet
forms. These codified versions are sample displays only and cannot be
used in commerce at all, and users who need a manifest must obtain them
from the registered printers EPA has approved to distribute valid
manifests commercially. With the implementation of e-Manifest, EPA has
designated an internet domain--www.epa.gov/e-Manifest--where it will
publish and make available to users the currently required manifest
forms and instructions, serving the same purpose as the codification in
the appendix in the CFR. EPA will be able to publish, make available to
the public, and maintain the manifest forms and instructions much more
efficiently and effectively through this means on the internet domain
than by continuing to codify them in an appendix in the CFR. Moreover,
the internet domain also provides a convenient location at which EPA
can inform the public of any changes it seeks to make to the forms and
provide the public with instructions on how they can submit comments.
Any issues that the public might have concerning the paperwork
compliance burdens posed by the manifest forms and their instructions
can continue to be addressed in the Information Collection Request
(ICR) process set out in the PRA.
EPA did not propose the removal of the manifest forms and
instructions from the part 262 appendix as part of the July 26, 2016
proposed user fee rule. The proposed user fee rule was focused
fundamentally on the user fee methodology and policy and several
pending non-fee issues related to the use of manifests. As the final
rule was being developed, EPA recognized the need to make several
minor, conforming changes to the manifest forms and instructions to
implement several of the new requirements under the e-Manifest Act. The
development of these conforming changes to the forms and instructions
accentuated for EPA the need to move away from the archaic practice of
continuing to publish the forms and instruction in the CFR rather than
publishing them to the public more
[[Page 446]]
effectively on the program's internet domain. In addition, as EPA
shifts its attention in the future to integrating the manifest with the
reporting of waste receipts for the RCRA biennial report, there will be
many advantages to EPA and the public in having the integration of
these two collections addressed through the PRA process rather than a
separate rulemaking focused only on the manifest forms in the CFR
appendix.
The Agency is including this action in this final rule, without
notice and comment, pursuant to section 553(b)(3)(A) of the
Administrative Procedure Act (APA). Section 553(b)(3)(A) of the APA
exempts notice and comment proceedings for ``interpretive rule, general
statements of policy, or rules of agency organization, procedure, or
practice.'' The decision to publish the manifest forms and instructions
though EPA's internet domain, and to address public comments on form
changes and their burden through the PRA processes rather than through
a separate rulemaking on the part 262 appendix, is primarily a matter
of how EPA organizes its forms and their procedures and practices.
Moreover, the PRA provides another adequate process by which the public
can be informed of manifest form changes and provide comment on them.
For emphasis, we note that no other form required for RCRA Subtitle C
compliance purposes (e.g., the Site ID Form, the biennial report's
waste generation or waste receipt forms) are codified in the CFR.
Removing the manifest forms and instructions from the part 262 appendix
will enable EPA to organize, manage, and maintain the manifest forms in
the same sensible and efficient manner as the other Subtitle C form
requirements.
Therefore, EPA is including in this final rule two minor regulatory
amendments to effectuate this action. First, EPA is amending Sec.
262.20(a)(1) to remove the current language that specifies that
generators must prepare manifests ``according to the instructions
included in the appendix to this part.'' The language in quotations
above will be removed, and the language that remains will simply
require the generators to prepare a manifest, and will continue to cite
the EPA Forms 8700-22 and 8700-22A that identify the hazardous waste
manifest and continuation sheet, as well as the OMB control number
2050-0039 by which OMB manages the information collection requirements
for the manifest forms. Second, EPA is including an amendment to part
262 to remove the current manifest forms-related appendix from part
262.
IV. The Projected Economic Impacts of the Electronic Manifest
A. Introduction
EPA estimated the costs and benefits of the final rule in a
Regulatory Impact Analysis (RIA), which is available in the docket for
this action. The RIA estimates costs and costs savings attributable to
electronic manifests. Cost savings are presented against estimated
baseline costs of the existing RCRA hazardous waste paper manifest
system. The RIA also qualitatively describes un-monetized benefits of
electronic manifests.
B. Count of RCRA Hazardous Waste Manifests
The RIA estimates paper manifest system baseline costs and
electronic manifest costs savings at the per-manifest level. Per-
manifest costs and cost savings are then scaled up to arrive at
national estimates of paper manifest costs and electronic manifest cost
savings. Because costs and cost savings are estimated at the per-
manifest level, the count of manifests used drives costs and cost
savings estimates in the RIA analysis.
Because all RCRA manifests will be processed centrally by EPA, the
RIA estimated the entire scope of manifest usage. While the federal
RCRA manifest (EPA forms 8700-22 and 8700-22A) has been the sole
manifest accompanying shipments of hazardous waste since the 2005
Uniform Hazardous Waste Manifest form rule, the manifest has two
applications. The first is to accompany shipments of hazardous wastes
listed in the federal RCRA regulations. The second is to accompany
shipments of state-only regulated wastes listed in various state RCRA
regulations. A total count of manifests which include both federal and
state applications was estimated in the RIA. EPA estimated an average
annual count of hazardous waste manifests used by extrapolating from
data on the generation of hazardous waste, data on the number of
shippers of hazardous waste, and by making assumptions about the likely
shipping frequency of hazardous and state-only regulated wastes. EPA
corroborated this estimate through consultations with companies that
print and sell copies of the hazardous waste manifest. The average
annual count of hazardous waste manifests used is estimated to be 3.2
million
C. Baseline Cost of the Paper Manifest System
EPA estimated baseline costs for all aspects of the existing paper
manifest system which will be affected by electronic manifests. EPA
estimated six categories of costs accruing to: Industrial users of
paper manifests, state governments that collect paper manifests, and
EPA. The six categories of costs are:
Paper manifest costs accruing to industry for federal
manifests,
Paper manifest costs accruing to industry for state
manifests,
EPA burden to process paper manifests,
State government burden to process paper manifests,
Industry burden to comply with hazardous waste Biennial
Report requirements, and
State government burden to comply with hazardous waste
Biennial Report requirements.
In total, discounting at 7% over six years, the annualized baseline
costs of the paper manifest system are estimated to be $238 million.
D. Costs Savings and Other Benefits of Electronic Manifests
EPA estimated both monetized cost savings and other, non-monetized,
benefits of electronic manifests. Cost savings are the difference
between the pre-rule cost of manifesting and the post-rule cost of
manifesting. They are estimated to accrue to both industrial and state
government users of electronic manifests. Over the six-year period of
analysis modeled in the RIA, the annualized post-rule costs of
manifesting were estimated to be $172 million when discounting at 7%.
Since the pre-rule cost of manifesting is estimated to be $238 million,
annualized cost savings from electronic manifests are estimated to be
$66 million.
EPA expects that electronic manifests will enhance many
stakeholders' ability to track and extract data on waste shipments by
storing and distributing these data in a central, accessible location.
EPA has identified six stakeholder groups that may benefit from better
access to manifest shipping data:
Members of industry that use the manifest for tracking
waste shipments should know the status of their shipments faster than
under the current paper based system. They should also benefit from the
increased legibility of electronic manifest records compared to current
paper manifests.
Federal and state government RCRA enforcement officials,
who use manifest data in the course of their investigations of RCRA
compliance should benefit from the centralized storage of manifest data
and the greater accessibility of these data under e-Manifest.
[[Page 447]]
Emergency responders should benefit from increased access
to data on the generation, shipment, and storage of hazardous wastes in
the event that a spill or other accident involving hazardous waste
occurs.
Research institutions from academia to industry may find
novel uses for manifest data.
Communities near RCRA facilities will have better
information on the generation, shipment, treatment, storage, and
disposal of hazardous waste near their communities.
EPA has not attempted to quantify the value of this benefit.
Summary of Estimated Costs and Cost Savings
[Annualized and discounted at 7% over six years]
------------------------------------------------------------------------
Pre-rule costs ($ Post-rule costs ($ Cost savings ($
million) million) million)
------------------------------------------------------------------------
238 172 66
------------------------------------------------------------------------
V. State Implementation
A. Applicability of Rules in Authorized States--General Principles
Under section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under section 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
Prior to the enactment of the Hazardous and Solid Waste Amendments
of 1984 (HSWA) and of the Hazardous Waste Electronic Manifest
Establishment Act, a state with final RCRA authorization administered
its hazardous waste program entirely in lieu of EPA administering the
federal program in that state. The federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
administer the program and issue RCRA permits. When new, more stringent
federal requirements were promulgated, a state with final RCRA
authorization was obligated to enact equivalent authorities within
specified time frames. However, the new federal requirements did not
take effect in an authorized state until the state adopted the federal
requirements as state law.
In contrast, with the adoption of RCRA section 3006(g), which was
added by HSWA, new requirements and prohibitions imposed under the HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by section 3006(g)
to implement HSWA-based requirements and prohibitions in authorized
states until the state is granted authorization to do so. While states
must still adopt HSWA related provisions as state law to retain final
authorization, EPA implements the HSWA provisions in authorized states
until the states are authorized to do so.
The e-Manifest Act contains similar authority to HSWA with respect
to federal and state implementation responsibilities in RCRA authorized
states. Section 2(g)(3) of the e-Manifest Act, entitled Administration,
provides that EPA shall carry out regulations promulgated under the Act
in each state unless the state program is fully authorized to carry out
such regulations in lieu of EPA. Also, section 2(g)(2) of the Act
provides that any regulation promulgated by EPA under the e-Manifest
Act shall take effect in each state (under federal authority) on the
same effective date that EPA specifies in its promulgating regulation.
The result is that regulations promulgated by EPA under the e-Manifest
Act, like HSWA-based regulations, are implemented and enforced by EPA
until the states are authorized to carry them out.
Authorized states generally are required to modify their programs
when EPA promulgates federal requirements that are more stringent or
broader in scope than existing federal requirements. However, as EPA
explained previously when adopting manifest form revisions to fully
standardize the RCRA manifest, the hazardous waste manifest is treated
differently. Rather, EPA requires strict consistency in the manifest
requirements, so that any EPA changes to federal manifest requirements
that are authorizable to states must be implemented consistently in the
states, regardless whether the change might be considered more
stringent or broader in scope than existing requirements. See 70 FR
10776 at 10810 (March 4, 2005). This is so, whether the manifest
program change is based on base RCRA or on e-Manifest Act authority.
B. Legal Authority for This Rule's Regulatory Changes and Implications
Only one of the authorizable \11\ regulatory changes included in
this final rule is based on the so-called base RCRA or 1976 RCRA
statutory authority.\12\ This regulatory provision is the Sec.
263.21(b) regulation addressing en route changes to transporters. This
is not a user fee related provision, but a more general change in the
requirements governing the use of the hazardous waste manifest by
hazardous waste transporters. Because this provision is promulgated
under RCRA base program authority, this regulatory change will not
become effective in authorized states until the regulatory change is
adopted under state law and EPA authorizes the state program
modification. States must adopt this regulatory change in their
authorized programs to maintain manifest program consistency. In
unauthorized states, this regulation will become effective on the
effective date of this final rule, which is June 30, 2018.
---------------------------------------------------------------------------
\11\ EPA uses the term authorizable to distinguish those
provisions of the final rule that can be administered and enforced
by a state as a part of its authorized RCRA program from those
provisions, such as determining and collecting e-Manifest user fees,
that can be administered and enforced only by EPA.
\12\ The final rule's changes to the manifest form printing
specifications at Sec. 262.21(f)(5) through (7) are also issued
under base RCRA authority. However, as the manifest printing
specifications are not authorizable, the changes to the printing
specification will be effective federally on the final rule's
effective date, and are not affected by state program modifications.
---------------------------------------------------------------------------
Most of the remaining regulatory changes promulgated in this final
rule are issued under the authority of the e-Manifest Act. These
provisions will be implemented and enforced by EPA in all states
consistently on the effective date of this final rule. States must
adopt the authorizable e-Manifest Act-based provisions of this final
rule in order to enforce them under state law, and to maintain manifest
program consistency. However, EPA will continue to implement and
enforce these provisions until such time as the state modifies its
authorized program to adopt these provisions and receives authorization
from EPA for the program modification.
C. Authorizable e-Manifest Act Provisions
The authorizable provisions promulgated under e-Manifest Act
authority are set out in the following table listing the regulatory
section of 40 CFR that is affected and the subject of the regulation.
These particular provisions listed below can be administered and
enforced by states after they are authorized for these provisions.
[[Page 448]]
------------------------------------------------------------------------
Regulation Subject
------------------------------------------------------------------------
Sec. 260.4......................... Copy submission requirements for
interstate shipments.
Sec. 260.5......................... Applicability of e-Manifest
system and fees to facilities
receiving state-only regulated
wastes.
Sec. 262.24(c)(1).................. Use of mixed paper/electronic
manifests.
Sec. 262.24(h)..................... Generators and post-receipt data
corrections.
Sec. 263.20(a)(9).................. Transporters and post-receipt
data corrections.
Sec. 264.71(a)(2)(v), Sec. Receiving facilities' required
265.71(a)(2)(v). paper manifest submissions to
system.
Sec. 264.71(j), Sec. 265.71(j)... Imposition of user fees on
receiving facilities for their
manifest submissions.
Sec. 264.71(l), Sec. 265.71(l)... Receiving facilities and post-
receipt data corrections.
------------------------------------------------------------------------
D. Provisions of the Final Rule That Are Not Authorizable
There are some provisions in this final rule that can be
administered and enforced only by EPA, and not by authorized states.
The first group of non-authorizable requirements included in this final
rule are Sec. 262.21(f)(5), (6), and (7). These provisions together
announce the revised printing specification for the five-copy paper
manifest and continuation sheet paper forms, the revised copy
distribution requirements to be printed on each copy of the form, and
the revised specification for printing the appropriate manifest
instructions on the back of the form copies. These printing
specifications apply to registered manifest printers and are
administered solely by EPA. State programs are not required to take any
action respecting these regulatory changes to the printing
specifications, and they will take effect in all states on the
effective date of this final rule.
The second group of non-authorizable requirements in this final
rule consists of the fee methodology and related fee implementation
provisions set forth in subpart FF of 40 CFR parts 264 and 265. These
requirements include definitions relevant to the program's fee
calculations (Sec. 264.1311, Sec. 265.1311), the user fee calculation
methodology (Sec. 264.1312, Sec. 265.1312), the user fee revisions
and publication process (Sec. 264.1313, Sec. 265.1313), how to make
user fee payments (Sec. 264.1314, Sec. 265.1314), sanctions for
delinquent payments (Sec. 264.1315, Sec. 265.1315), and the informal
fee dispute process (Sec. 264.1316, Sec. 265.1316). These user fee
provisions in subpart FF are promulgated under the authority of the e-
Manifest Act, and will be implemented and enforced by EPA on the
effective date of this final rule and perpetually thereafter. The user
fee provisions of subpart FF describe the methods and processes that
EPA alone will use in setting fees to recover its program costs, and in
administering and enforcing the user fee requirements. Therefore,
states cannot be authorized to implement or enforce any of the subpart
FF provisions.
Although states cannot receive authorization to administer or
enforce the federal government's e-Manifest program user fees,
authorized state programs must still include the content of or
references to the subpart FF requirements. This is necessary to ensure
that members of their regulated communities will be on notice of their
responsibilities to pay user fees to the EPA e-Manifest system when
they utilize the system. Authorized state programs must either adopt or
reference appropriately the user fee requirements of this final
rule.\13\ However, when a state adopts the user fee provisions of this
rule, the state must not replace federal or EPA references with state
references or terms that would suggest the collection or implementation
of these user fees by the state. Alternatively, an authorized state may
reference the subpart FF fee provisions appropriately by simply
adopting state law counterparts to Sec. Sec. 264.71(j) and 265.71(j)
that include all the detailed citations to the subpart FF provisions as
set out in the Sec. Sec. 264.71(j) and 265.71(j) provisions of this
final rule.
---------------------------------------------------------------------------
\13\ EPA believes it is important that states adopt or reference
EPA's subpart FF user fee provisions in their state programs, so
that all receiving facilities in the states are on notice of their
obligations to submit their final manifest copies to the system and
to pay user fees to EPA for the processing of their manifests. EPA
has added Sec. 260.5 to provide federal notice of these e-Manifest
Act responsibilities to the facilities that receive state-only
regulated wastes that are tracked with a RCRA manifest per state
law. However, the adoption by the states of appropriate state
program revisions alerting such facilities that receive state-only
regulated wastes to these e-Manifest Act requirements should greatly
enhance the notice afforded these receiving facilities and their
rate of compliance.
---------------------------------------------------------------------------
E. Non-Fee Related Provisions of the Final Rule
In addition to the Sec. 263.21(b) provision discussed above
addressing transporter changes en route, two other non-fee related
provisions are included in this final rule that the states will be
required to adopt as components of their authorized programs. These
provisions include: (1) The amendments to Sec. Sec. 264.71(l) and
265.71(l), addressing post-receipt manifest data corrections in the e-
Manifest data system; and (2) the amendment at Sec. 262.24(c)(1),
allowing a mixed paper and electronic manifest to be used by certain
generators. Each of these non-fee related amendments must be adopted by
authorized state programs to maintain consistency with the federal RCRA
program. Moreover, because all three of these provisions address the
use of the RCRA hazardous waste manifest or the national e-Manifest
system to be established under the e-Manifest Act, these provisions
must be adopted uniformly and fully consistently with the promulgated
federal requirements. Because these provisions are based on e-Manifest
Act authority, they will be implemented and enforced by EPA in all
states on the effective date of this final rule, and will be
implemented by EPA until the states obtain RCRA authorization for these
program modifications.
This final rule also includes two conforming changes to 40 CFR
271.12, addressing the requirements for hazardous waste management
facilities that must be included in authorized state programs to
maintain consistency with the federal program. The first change at
Sec. 271.12(k) clarifies that authorized state programs must include
requirements for hazardous waste management facilities and facilities
receiving state regulated wastes under manifests to pay user fees to
EPA to recover all costs related to the development and operation of an
electronic hazardous waste manifest system (e-Manifest system). The
second such change at Sec. 271.12(i)(2) clarifies that authorized
programs must include a requirement that designated or receiving
facilities submit a signed copy of each paper manifest (or the data
from paper manifests) to the EPA's e-Manifest system, in lieu of
sending signed copies directly to either the origination or destination
states. The latter modification is necessary to effectuate the intent
of Congress that under the e-Manifest Act, the e-Manifest system will
operate as a national, one-stop reporting hub for manifests and data.
When e-Manifest is operational, EPA expects that the states with such
tracking
[[Page 449]]
programs will obtain their manifest copies and data from e-Manifest,
rather than requiring regulated entities to mail their manifests to
these states.\14\
---------------------------------------------------------------------------
\14\ One exception we note is that EPA will not collect in e-
Manifest generator or transporter copies of any paper manifests that
continue in use after e-Manifest is operational. States that wish to
continue to obtain these paper generator or transporter copies will
need to continue to require their direct submission to the states.
---------------------------------------------------------------------------
Also, several of these states with manifest tracking programs
assess their own fees to offset the costs of administering their state
manifest tracking programs, or they may assess waste generation or
management fees to support state programs, based on manifest data in
their state tracking systems. It is likely that many of these state
manifest tracking programs and related fees may continue to operate for
the foreseeable future. EPA emphasizes that the federal user fees that
are the subject of this regulation are solely to offset EPA's costs in
developing and operating the e-Manifest system. It is not the purpose
of this regulation to suspend, reduce, or otherwise impact the existing
state fees that support states' manifest tracking programs or the fees
levied by state programs on waste generation or management. EPA is not
now in a position to predict what, if any, impact this federal user fee
regulation may have on any such state fee collection programs.
VI. Estimated Fee Schedule for Initial Operation Period
EPA has developed an illustrative estimate of the program's initial
user fees based on the best system use, system cost, and program budget
projections available at the time of this rule's publication. These
estimates are for user fees in the first year of system operation. They
are driven by assumptions about the magnitude and distribution of
manifest types that the system will receive. These assumptions are
explained in detail in Chapter 5 of the RIA that accompanies this
rulemaking. These fees also incorporate estimates of costs of setting
up and hosting the system, and the costs of running the paper
processing center. At the time of this rule's publication EPA does not
have a final budget for the program in Fiscal Year 2018, nor does EPA
have all the contracts in place for setting up and hosting the system,
and for running the paper processing center. For this reason, the
following table of fee estimates should be interpreted as rough
approximations of the final fees. EPA will publish a final two-year
schedule of user fees on the e-Manifest website, at www.epa.gov/e-Manifest, when more information about the e-Manifest budget and
contracts awards becomes available.
The fee estimates presented in the following table are per-manifest
fees for each manifest submission type. They are derived from the
proposed rule's Option 2, Marginal Cost Differentiated Fee methodology,
which in this final rule, EPA will rely on for setting fee levels for
at least the initial four years of program implementation.
Year 1 Marginal Cost Manifest Fees by Manifest Type
[2017$]
------------------------------------------------------------------------
------------------------------------------------------------------------
Manifest submission type Year 1 fee
------------------------------------------------------------------------
Paper Manifest Types.............. Mailed Paper........ $20.00
Image Uploads....... 13.00
Data File Uploads... 7.00
Electronic Manifests (includes Electronic.......... 4.00
hybrid).
------------------------------------------------------------------------
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review because it may
raise novel legal or policy issues. Any changes made in response to OMB
recommendations have been documented in the docket for this action. The
EPA prepared a regulatory impact analysis of the potential costs and
benefits associated with this action, which is available in the docket.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is considered an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this final rule can be
found in EPA's analysis of the potential costs and benefits associated
with this action.
C. Paperwork Reduction Act (PRA)
The information collection activities in this final rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The Information Collection Request (ICR) document that
the EPA prepared has been assigned EPA ICR number 0801.22. You can find
a copy of the ICR in the docket for this rule, and it is briefly
summarized here.
This implementation of e-Manifest and this Fee Rule will impose new
information collection requirements on the regulated community,
although we expect that the net effect will be to significantly reduce
the paperwork burden relative to the paper manifest system. Although
the primary effect of the e-Manifest implementation will be to replace
current paper-based information requirements with electronic-based
requirements to submit or retain the same shipment information, there
could be minor additions or changes to the information collection
requirements, such as information that may be provided to establish
user accounts and fee payment accounts, information submitted for
identity management, as well as waste profile or other information that
may be useful for the creation and submission of electronic manifests.
Additionally, EPA did not update the information collection burden
associated with the regulatory changes to the manifest system announced
in the ``One Year Rule.'' While EPA acknowledged that the adoption of
e-Manifest will change the manner in which information will be
collected and transmitted, the system was not currently available and
consequently the ``One Year Rule'' did
[[Page 450]]
not change the information collected by the hazardous waste manifest,
nor the scope of the wastes that are now subject to manifesting. EPA
indicated that it would update the information collection burden
estimates in this user fee rule, which are as follows:
Respondents/affected entities: Private waste handlers.
Respondent's obligation to respond: Mandatory (RCRA 3002(a)(5)).
Estimated number of respondents: 203,927.
Frequency of response: Monthly (for paper copies), On occasion.
Total estimated burden: 2,608,292 hours (per year). Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: $128,661,312, includes $38,784,093 annualized
capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for the
EPA's regulations are listed in 40 CFR part 9. When OMB approves this
ICR, the Agency will announce that approval in the Federal Register and
publish a technical amendment to 40 CFR part 9 to display the OMB
control number for the approved information collection activities
contained in this final rule.
D. Regulatory Flexibility Analysis (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant adverse-economic impact on a
substantial number of small entities if the rule relieves regulatory
burden, has no net burden or otherwise has a positive economic effect
on the small entities subject to the rule.
The small entities directly regulated by this final rule include
entities that receive shipments of hazardous waste across various
industries, including, but not limited to, NAICS 562211 Hazardous Waste
Treatment and Disposal; NAICS 562920 Materials Recovery Facilities;
NAICS 331410 Nonferrous Metal (except Aluminum) Smelting and Refining;
NAICS 331492 Secondary Smelting, Refining, and Alloying of Nonferrous
Metal (except Copper and Aluminum); NAICS 523910 Miscellaneous
Intermediation; and NAICS 562219 Other Nonhazardous Waste Treatment and
Disposal. The RIA considers as potentially small any firm within the
affected universe that cannot be positively identified as not small
according to SBA's size standards.
The Regulatory Impact Analysis (RIA) conducted for this rulemaking
found that the e-Manifest rule would reduce the compliance burden
associated with manifesting shipments of hazardous waste. The RIA
estimates that in the initial six years after the e-Manifest system is
operational, annualized savings from manifest related burden reduction
would equal approximately $66 million per year when discounted at 7%.
The RIA estimates that these savings would accrue to firms of all
sizes, including 70 potentially small firms, that adopt electronic
manifests as well as to firms that adopt one of the two paper manifest
submission options other than postal mail submissions. The RIA
concludes the e-Manifest rule will not have a significant adverse
economic impact on a substantial number of small entities.
As a precaution, the RIA also estimates the impacts of the e-
Manifest rule under the unlikely hypothetical scenario in which small
firms do not adopt e-Manifest but instead continue to submit paper
manifests via postal mail. As a consequence, these firms might not
realize any savings from the e-Manifest rule but could instead face
increasing costs from e-Manifest fees. The small entities examined in
this worst case analysis consist of 70 potentially small firms located
within the relevant industries. Potential costs for these firms are
estimated by multiplying the cost of a paper manifest submission fee by
the number of manifests a firm is estimated to submit within a year.
The number of manifests a firm is estimated to submit is based on the
amount of hazardous waste they receive. For each firm, the cost of fees
is then compared to estimated revenues. Even under these unlikely and
highly conservative assumptions, the RIA finds that the rule will not
have a significant adverse economic impact on a substantial number of
small entities, which the RIA considers as revenue impacts of greater
than 1% per year for 20% or more of small entities. The RIA, in
particular Section 7.2, describes in greater depth how EPA assembled a
universe of small entities, how EPA estimated the hypothetical impacts
of the e-Manifest rule under these conservative assumptions, and the
criteria EPA used in this instance to determine significant adverse
economic impacts on a substantial number of small entities. The RIA is
available in the docket for this rulemaking.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local or tribal governments or the
private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It will not impose any new requirements on
tribal officials nor will it impose substantial direct compliance costs
on them. This action will not create a mandate for tribal governments,
i.e., there are no authorized tribal programs that will require
revision and reauthorization on account of the e-Manifest system and
regulatory program requirements. Nor do we believe that the e-Manifest
system and this Fee Rule will impose any enforceable duties on these
entities. Thus, Executive Order 13175 does not apply to this action.
H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action requires the payment of
user fees from certain members of the hazardous waste management
industry for their use of an electronic manifest
[[Page 451]]
system, which will not have a significant effect on the supply,
distribution or use of energy.
J. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA concludes that this action does not have potential
disproportionately high and adverse human health or environmental
effects on minority populations, low-income populations and/or
indigenous peoples, as specified in Executive Order 12898 (59 FR 7629,
February 16, 1994), because it does not affect what facilities,
materials, or activities are subject to RCRA. Thus, this action does
not affect the level of protection provided to human health or the
environment. When implemented, the e-Manifest system could improve
access for minority, low-income or indigenous populations and
communities to information on waste movements to, from, or through
neighborhoods where these populations live and work. Thus, the system
could only have beneficial effects on such populations and communities.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects
40 CFR Part 260
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 262
Environmental protection, Exports, Hazardous materials
transportation, Hazardous waste, Imports, Labeling, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 263
Environmental protection, Hazardous materials transportation,
Hazardous waste, Reporting and recordkeeping requirements.
40 CFR Part 264
Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements, Security
measures, Fees.
40 CFR Part 265
Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements, Fees.
40 CFR Part 271
Environmental protection, Administrative practice and procedure
Hazardous materials transportation, Hazardous waste, Reporting and
recordkeeping requirements.
Dated: December 20, 2017.
E. Scott Pruitt,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR parts
260, 262, 263, 264 and 265, and 271 as follows:
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
0
1. The authority citation for part 260 is revised to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934,
6935, 6937, 6938, 6939, 6939g, and 6974.
0
2. Add Sec. Sec. 260.4 and 260.5 to subpart A to read as follows:
Sec. 260.4 Manifest copy submission requirements for certain
interstate waste shipments.
(a) In any case in which the state in which waste is generated, or
the state in which waste will be transported to a designated facility,
requires that the waste be regulated as a hazardous waste or otherwise
be tracked through a hazardous waste manifest, the designated facility
that receives the waste shall, regardless of the state in which the
facility is located:
(1) Complete the facility portion of the applicable manifest;
(2) Sign and date the facility certification;
(3) Submit to the e-Manifest system a final copy of the manifest
for data processing purposes; and
(4) Pay the appropriate per manifest fee to EPA for each manifest
submitted to the e-Manifest system, subject to the fee determination
methodology, payment methods, dispute procedures, sanctions, and other
fee requirements specified in subpart FF of part 264 of this chapter.
Sec. 260.5 Applicability of electronic manifest system and user fee
requirements to facilities receiving state-only regulated waste
shipments.
(a) For purposes of this section, ``state-only regulated waste''
means:
(1) A non-RCRA waste that a state regulates more broadly under its
state regulatory program, or
(2) A RCRA hazardous waste that is federally exempt from manifest
requirements, but not exempt from manifest requirements under state
law.
(b) In any case in which a state requires a RCRA manifest to be
used under state law to track the shipment and transportation of a
state-only regulated waste to a receiving facility, the facility
receiving such a waste shipment for management shall:
(1) Comply with the provisions of Sec. Sec. 264.71 (use of the
manifest) and 264.72 (manifest discrepancies) of this chapter; and
(2) Pay the appropriate per manifest fee to EPA for each manifest
submitted to the e-Manifest system, subject to the fee determination
methodology, payment methods, dispute procedures, sanctions, and other
fee requirements specified in subpart FF of part 264 of this chapter.
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
3. The authority citation for part 262 is revised to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938 and
6939g.
0
4. Section 262.20 is amended by revising paragraphs (a)(1) and (2) to
read as follows:
Sec. 262.20 General requirements.
(a)(1) A generator that transports, or offers for transport a
hazardous waste for offsite treatment, storage, or disposal, or a
treatment, storage, or disposal facility that offers for transport a
rejected hazardous waste load, must prepare a Manifest (OMB Control
number 2050-0039) on EPA Form 8700-22, and, if necessary, EPA Form
8700-22A.
(2) The revised manifest form and procedures in 40 CFR 260.10,
261.7, 262.20, 262.21, 262.27, 262.32, 262.34, 262.54, and 262.60,
shall not apply until September 5, 2006. The manifest form and
procedures in 40 CFR 260.10, 261.7, 262.20, 262.21, 262.32, 262.34,
262.54, and 262.60, contained in the 40 CFR, parts 260 to 265, edition
revised as of July 1, 2004, shall be applicable until September 5,
2006.
* * * * *
0
5. Section 262.21 is amended by revising paragraphs (f)(5) and (6) and
(f)(7) and adding paragraph (f)(8) to read as follows:
Sec. 262.21 Manifest tracking numbers, manifest printing, and
obtaining manifests.
* * * * *
(f) * * *
[[Page 452]]
(5) The manifest and continuation sheet must be printed as five-
copy forms. Copy-to-copy registration must be exact within 1/32nd of an
inch. Handwritten and typed impressions on the form must be legible on
all five copies. Copies must be bound together by one or more common
stubs that reasonably ensure that they will not become detached
inadvertently during normal use.
(6) Each copy of the manifest and continuation sheet must indicate
how the copy must be distributed, as follows:
(i) Page 1 (top copy): ``Designated facility to EPA's e-Manifest
system'';
(ii) Page 2: ``Designated facility to generator'';
(iii) Page 3: ``Designated facility copy'';
(iv) Page 4: ``Transporter copy''; and
(v) Page 5 (bottom copy): ``Generator's initial copy.''
(7) The instructions for the manifest form (EPA Form 8700-22) and
the manifest continuation sheet (EPA Form 8700-22A) shall be printed in
accordance with the content that is currently approved under OMB
Control Number 2050-0039 and published to the e-Manifest program's
website. The instructions must appear legibly on the back of the copies
of the manifest and continuation sheet as provided in this paragraph
(f). The instructions must not be visible through the front of the
copies when photocopied or faxed.
(i) Manifest Form 8700-22.
(A) The ``Instructions for Generators'' on Copy 5;
(B) The ``Instructions for International Shipment Block'' and
``Instructions for Transporters'' on Copy 4; and
(C) The ``Instructions for Treatment, Storage, and Disposal
Facilities'' on Copy 3.
(ii) Manifest Form 8700-22A.
(A) The ``Instructions for Generators'' on Copy 5;
(B) The ``Instructions for Transporters'' on Copy 4; and
(C) The ``Instructions for Treatment, Storage, and Disposal
Facilities'' on Copy 3.
(8) The designated facility copy of each manifest and continuation
sheet must include in the bottom margin the following warning in
prominent font: ``If you received this manifest, you have
responsibilities under the e-Manifest Act. See instructions on reverse
side.''
* * * * *
0
6. Section 262.24 is amended by:
0
a. Revising paragraphs (c) and (e);
0
b. Removing and reserving paragraph (g); and
0
c. Adding paragraph (h).
The revision and addition read as follows:
Sec. 262.24 Use of the electronic manifest.
* * * * *
(c) Restriction on use of electronic manifests. A generator may use
an electronic manifest for the tracking of waste shipments involving
any RCRA hazardous waste only if it is known at the time the manifest
is originated that all waste handlers named on the manifest participate
in the use of the electronic manifest, except that:
(1) A generator may sign by hand and retain a paper copy of the
manifest signed by hand by the initial transporter, in lieu of
executing the generator copy electronically, thereby enabling the
transporter and subsequent waste handlers to execute the remainder of
the manifest copies electronically.
(2) [Reserved]
* * * * *
(e) Special procedures when electronic manifest is unavailable. If
a generator has prepared an electronic manifest for a hazardous waste
shipment, but the electronic manifest system becomes unavailable for
any reason prior to the time that the initial transporter has signed
electronically to acknowledge the receipt of the hazardous waste from
the generator, then the generator must obtain and complete a paper
manifest and if necessary, a continuation sheet (EPA Forms 8700-22 and
8700-22A) in accordance with the manifest instructions, and use these
paper forms from this point forward in accordance with the requirements
of Sec. 262.23.
* * * * *
(h) Post-receipt manifest data corrections. After facilities have
certified to the receipt of hazardous wastes by signing Item 20 of the
manifest, any post-receipt data corrections may be submitted at any
time by any interested person (e.g., waste handler) named on the
manifest. Generators may participate electronically in the post-receipt
data corrections process by following the process described in Sec.
264.71(l) of this chapter, which applies to corrections made to either
paper or electronic manifest records.
Appendix to Part 262 [Removed]
0
7. Remove the appendix to part 262.
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
0
8. The authority citation for part 263 is revised to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, 6938, and
6939g.
0
9. Section 263.20 is amended by removing and reserving paragraph (a)(8)
and adding paragraph (a)(9) to read as follows:
Sec. 263.20 The manifest system.
* * * * *
(a) * * *
(9) Post-receipt manifest data corrections. After facilities have
certified to the receipt of hazardous wastes by signing Item 20 of the
manifest, any post-receipt data corrections may be submitted at any
time by any interested person (e.g., waste handler) named on the
manifest. Transporters may participate electronically in the post-
receipt data corrections process by following the process described in
Sec. 264.71(l) of this chapter, which applies to corrections made to
either paper or electronic manifest records.
* * * * *
0
10. Section 263.21 is revised to read as follows:
Sec. 263.21 Compliance with the manifest.
(a) Except as provided in paragraph (b) of this section, the
transporter must deliver the entire quantity of hazardous waste which
he or she has accepted from a generator or a transporter to:
(1) The designated facility listed on the manifest; or
(2) The alternate designated facility, if the hazardous waste
cannot be delivered to the designated facility because an emergency
prevents delivery; or
(3) The next designated transporter; or
(4) The place outside the United States designated by the
generator.
(b)(1) Emergency condition. If the hazardous waste cannot be
delivered in accordance with paragraph (a)(1), (2), or (4) of this
section because of an emergency condition other than rejection of the
waste by the designated facility or alternate designated facility, then
the transporter must contact the generator for further instructions and
must revise the manifest according to the generator's instructions.
(2) Transporters without agency authority. If the hazardous waste
is not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter is
without contractual authorization from the generator to act as the
generator's agent with respect to transporter additions or
substitutions, then the current transporter must contact the generator
for further instructions prior to making any revisions to the
transporter designations on the manifest. The current transporter may
thereafter make such revisions if:
[[Page 453]]
(i) The hazardous waste is not delivered in accordance with
paragraph (a)(3) of this section because of an emergency condition; or
(ii) The current transporter proposes to change the transporter(s)
designated on the manifest by the generator, or to add a new
transporter during transportation, to respond to an emergency, or for
purposes of transportation efficiency, convenience, or safety; and
(iii) The generator authorizes the revision.
(3) Transporters with agency authority. If the hazardous waste is
not delivered to the next designated transporter in accordance with
paragraph (a)(3) of this section, and the current transporter has
authorization from the generator to act as the generator's agent, then
the current transporter may change the transporter(s) designated on the
manifest, or add a new transporter, during transportation without the
generator's prior, explicit approval, provided that:
(i) The current transporter is authorized by a contractual
provision that provides explicit agency authority for the transporter
to make such transporter changes on behalf of the generator;
(ii) The transporter enters in Item 14 of each manifest for which
such a change is made, the following statement of its agency authority:
``Contract retained by generator confers agency authority on initial
transporter to add or substitute additional transporters on generator's
behalf;'' and
(iii) The change in designated transporters is necessary to respond
to an emergency, or for purposes of transportation efficiency,
convenience, or safety.
(4) Generator liability. The grant by a generator of authority to a
transporter to act as the agent of the generator with respect to
changes to transporter designations under paragraph (b)(3) of this
section does not affect the generator's liability or responsibility for
complying with any applicable requirement under this chapter, or grant
any additional authority to the transporter to act on behalf of the
generator.
(c) If hazardous waste is rejected by the designated facility while
the transporter is on the facility's premises, then the transporter
must obtain the following:
(1) For a partial load rejection or for regulated quantities of
container residues, a copy of the original manifest that includes the
facility's date and signature, and the Manifest Tracking Number of the
new manifest that will accompany the shipment, and a description of the
partial rejection or container residue in the discrepancy block of the
original manifest. The transporter must retain a copy of this manifest
in accordance with Sec. 263.22, and give the remaining copies of the
original manifest to the rejecting designated facility. If the
transporter is forwarding the rejected part of the shipment or a
regulated container residue to an alternate facility or returning it to
the generator, the transporter must obtain a new manifest to accompany
the shipment, and the new manifest must include all of the information
required in 40 CFR 264.72(e)(1) through (6) or (f)(1) through (6) or 40
CFR 265.72(e)(1) through (6) or (f)(1) through (6).
(2) For a full load rejection that will be taken back by the
transporter, a copy of the original manifest that includes the
rejecting facility's signature and date attesting to the rejection, the
description of the rejection in the discrepancy block of the manifest,
and the name, address, phone number, and Identification Number for the
alternate facility or generator to whom the shipment must be delivered.
The transporter must retain a copy of the manifest in accordance with
Sec. 263.22, and give a copy of the manifest containing this
information to the rejecting designated facility. If the original
manifest is not used, then the transporter must obtain a new manifest
for the shipment and comply with 40 CFR 264.72(e)(1) through (6) or 40
CFR 265.72(e)(1) through (6).
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
11. The authority citation for part 264 is revised to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, 6925, and 6939g.
Subpart E--Manifest System, Recordkeeping, and Reporting
0
12. Section 264.71 is amended by revising paragraphs (a)(2) and (j) and
adding paragraph (l) to read as follows:
Sec. 264.71 Use of manifest system.
(a) * * *
(2) If the facility receives a hazardous waste shipment accompanied
by a manifest, the owner, operator, or his agent must:
(i) Sign and date each copy of the manifest;
(ii) Note any discrepancies (as defined in Sec. 264.72(a)) on each
copy of the manifest;
(iii) Immediately give the transporter at least one copy of the
manifest;
(iv) Within 30 days of delivery, send a copy (Page 2) of the
manifest to the generator;
(v) Paper manifest submission requirements are:
(A) Options for compliance on June 30, 2018. Beginning on June 30,
2018, send the top copy (Page 1) of any paper manifest and any paper
continuation sheet to the e-Manifest system for purposes of data entry
and processing, or in lieu of submitting the paper copy to EPA, the
owner or operator may transmit to the EPA system an image file of Page
1 of the manifest and any continuation sheet, or both a data file and
image file corresponding to Page 1 of the manifest and any continuation
sheet, within 30 days of the date of delivery. Submissions of copies to
the e-Manifest system shall be made at the mailing address or
electronic mail/submission address specified at the e-Manifest program
website's directory of services. Beginning on June 30, 2021, EPA will
not accept mailed paper manifests from facilities for processing in e-
Manifest.
(B) Options for compliance on June 30, 2021. Beginning on June 30,
2021, the requirement to submit the top copy (Page 1) of the paper
manifest and any paper continuation sheet to the e-Manifest system for
purposes of data entry and processing may be met by the owner or
operator only by transmitting to the EPA system an image file of Page 1
of the manifest and any continuation sheet, or by transmitting to the
EPA system both a data file and the image file corresponding to Page 1
of the manifest and any continuation sheet, within 30 days of the date
of delivery. Submissions of copies to the e-Manifest system shall be
made to the electronic mail/submission address specified at the e-
Manifest program website's directory of services; and
(vi) Retain at the facility a copy of each manifest for at least
three years from the date of delivery.
* * * * *
(j) Imposition of user fee for manifest submissions. (1) As
prescribed in Sec. 264.1311, and determined in Sec. 264.1312, an
owner or operator who is a user of the electronic manifest system shall
be assessed a user fee by EPA for the submission and processing of each
electronic and paper manifest. EPA shall update the schedule of user
fees and publish them to the user community, as provided in Sec.
264.1313.
[[Page 454]]
(2) An owner or operator subject to user fees under this section
shall make user fee payments in accordance with the requirements of
Sec. 264.1314, subject to the informal fee dispute resolution process
of Sec. 264.1316, and subject to the sanctions for delinquent payments
under Sec. 264.1315.
* * * * *
(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 may be submitted at any
time by any interested person (e.g., waste handler) shown on the
manifest.
(1) Interested persons must make all corrections to manifest data
by electronic submission, either by directly entering corrected data to
the web based service provided in e-Manifest for such corrections, or
by an upload of a data 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
person submitting the corrections certifies 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; and
(ii) A batch upload of data corrections may be submitted under one
certification statement.
(4) Upon receipt by the system of any correction submission, other
interested persons shown on the manifest will be provided electronic
notice of the submitter's corrections.
(5) Other interested persons shown on the manifest may respond to
the submitter's corrections with comments to the submitter, or by
submitting another correction to the system, certified by the
respondent as specified in paragraph (l)(3) of this section, and with
notice of the corrections to other interested persons shown on the
manifest.
0
13. Section 264.1086 is amended by revising paragraphs (c)(4)(i) and
(d)(4)(i) to read as follows:
Sec. 264.1086 Standards: Containers.
* * * * *
(c) * * *
(4) * * *
(i) In the case when a hazardous waste already is in the container
at the time the owner or operator first accepts possession of the
container at the facility and the container is not emptied within 24
hours after the container is accepted at the facility (i.e., does not
meet the conditions for an empty container as specified in 40 CFR
261.7(b)), the owner or operator shall visually inspect the container
and its cover and closure devices to check for visible cracks, holes,
gaps, or other open spaces into the interior of the container when the
cover and closure devices are secured in the closed position. The
container visual inspection shall be conducted on or before the date
that the container is accepted at the facility (i.e., the date the
container becomes subject to the subpart CC container standards). For
purposes of this requirement, the date of acceptance is the date of
signature that the facility owner or operator enters on Item 20 of the
Uniform Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A), as
required under subpart E of this part, at 40 CFR 264.71. If a defect is
detected, the owner or operator shall repair the defect in accordance
with the requirements of paragraph (c)(4)(iii) of this section.
* * * * *
(d) * * *
(4) * * *
(i) In the case when a hazardous waste already is in the container
at the time the owner or operator first accepts possession of the
container at the facility and the container is not emptied within 24
hours after the container is accepted at the facility (i.e., does not
meet the conditions for an empty container as specified in 40 CFR
261.7(b)), the owner or operator shall visually inspect the container
and its cover and closure devices to check for visible cracks, holes,
gaps, or other open spaces into the interior of the container when the
cover and closure devices are secured in the closed position. The
container visual inspection shall be conducted on or before the date
that the container is accepted at the facility (i.e., the date the
container becomes subject to the subpart CC container standards). For
purposes of this requirement, the date of acceptance is the date of
signature that the facility owner or operator enters on Item 20 of the
Uniform Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A), as
required under subpart E of this part, at 40 CFR 264.71. If a defect is
detected, the owner or operator shall repair the defect in accordance
with the requirements of paragraph (d)(4)(iii) of this section.
* * * * *
0
14. Subpart FF, consisting of Sec. Sec. 264.1300 through 264.1316, is
added to part 264 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.
264.1316 Informal fee dispute resolution.
Subpart FF--Fees for the Electronic Hazardous Waste Manifest
Program
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.
Cross Media Electronic Reporting Rule (CROMERR) costs are the sub-
category of operations and maintenance costs that are expended by EPA
in
[[Page 455]]
implementing electronic signature, user registration, identity
proofing, and copy of record solutions that meet EPA's electronic
reporting regulations as set forth in the 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. Electronic manifest submissions include the hybrid or mixed
paper/electronic manifests authorized under Sec. 262.24(c)(1).
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
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 in accordance with Sec. 264.1311(b), or by submitting both an
image file and data file in accordance with the procedures of Sec.
264.1311(c).
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) Per manifest fee. 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 facilities, with the fee assessed at
the applicable rate for electronic manifest submissions;
(2) The submission of each paper manifest submission to the paper
processing center signed by owners or operators of receiving
facilities, with the fee assessed according to whether the manifest is
submitted to the system by mail, by the upload of an image file, or by
the upload of a data file representation of the paper manifest; and
(3) The submission of copies of return shipment manifests by
facilities that are rejecting hazardous wastes and returning hazardous
wastes under return manifests to the original generator. This fee is
assessed for the processing of the return shipment manifest(s), and is
assessed at the applicable rate determined by the method of submission.
The submission shall also include a copy of the original signed
manifest showing the rejection of the wastes.
(b) Image file uploads from paper manifests. Receiving facilities
may submit image file uploads of completed, ink-signed manifests in
lieu of submitting mailed paper forms to the e-Manifest system. Such
image file upload submissions may be made for individual manifests
received by a facility or as a batch upload of image files from
multiple paper manifests received at the facility:
(1) The image file upload must be made in an image file format
approved by EPA and supported by the e-Manifest system; and
(2) At the time of submission of an image file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
or belief, the submitted image files are accurate and complete
representations of the facility's received manifests, and that the
facility acknowledges that it is obligated to pay the applicable per
manifest fee for each manifest included in the submission.
(c) Data file uploads from paper manifests. Receiving facilities
may submit data file representations of completed, ink-signed manifests
in lieu of submitting mailed paper forms or image files to the e-
Manifest system. Such data file submissions from paper manifests may be
made for individual manifests received by a facility or as a batch
upload of data files from multiple paper manifests received at the
facility.
(1) The data file upload must be made in a data file format
approved by EPA and supported by the e-Manifest system;
(2) The receiving facility must also submit an image file of each
manifest that is included in the individual or batch data file upload;
and
(3) At the time of submission of the data file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
or belief, the data and images submitted are accurate and complete
representations of the facility's received manifests, and that the
facility acknowledges that it is obligated to pay
[[Page 456]]
the applicable per manifest fee for each manifest included in the
submission.
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] TR03JA18.000
Where Feei represents the per manifest fee for each
manifest submission type ``i'' and Nt refers to the total number of
manifests completed in a year.
(b)(1) If after four years of system operations, electronic
manifest usage does not equal or exceed 75% of total manifest usage,
EPA may transition to the following formula or methodology to determine
per manifest fees:
[GRAPHIC] [TIFF OMITTED] TR03JA18.001
Where Ni refers to the total number of one of the four manifest
submission types ``i'' completed in a year and O&Mi Cost refers to the
differential O&M Cost for each manifest submission type ``i.''
(2) At the completion of four years of system operations, EPA shall
publish a notice:
(i) Stating the date upon which the fee formula set forth in
paragraph (b)(1) of this section shall become effective; or
(ii) Stating that the fee formula in paragraph (b)(1) of this
section shall not go into effect under this section, and that the
circumstances of electronic manifest adoption and the appropriate fee
response shall be referred to the System Advisory Board for the Board's
advice.
Sec. 264.1313 User fee revisions.
(a) Revision schedule. (1) 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.
(2) The fee schedules will be published to users through the e-
Manifest program website by July 1 of each odd numbered calendar year,
and will cover the two fiscal years beginning on October 1 of that year
and ending on September 30 of the next odd numbered calendar year.
(b) Inflation adjuster. The second year of each two-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 an adjustment to
recapture revenue lost in the previous two-year fee cycle on account of
imprecise estimates of manifest usage. This adjustment 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;''
[[Page 457]]
(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.
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 facility in response to an electronic
invoice or bill identifying manifest-related services provided to 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 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 after 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 (i.e.,
not paid by date 120 days from date of invoice) 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) Compliance with manifest perfection requirement. A manifest is
fully perfected when:
(1) The manifest has been submitted by the owner or operator of a
receiving facility to the e-Manifest system, as either an electronic
submission or a paper manifest submission; and
(2) All user fees arising from the submission of the manifest have
been fully paid.
Sec. 264.1316 Informal fee dispute resolution.
(a) Users of e-Manifest services that believe their invoice or
charges to be in error must present their claims for fee dispute
resolution informally using the process described in this section.
(b) Users asserting a billing dispute claim must first contact the
system's billing representatives by phone or email at the phone number
or email address provided for this purpose on the e-Manifest program's
website or other customer services directory.
(1) The fee dispute claimant must provide the system's billing
representatives with information identifying the claimant and the
invoice(s) that are affected by the dispute, including:
(i) The claimant's name, and the facility at which the claimant is
employed;
(ii) The EPA Identification Number of the affected facility;
(iii) The date, invoice number, or other information to identify
the particular invoice(s) that is the subject of the dispute; and
(iv) A phone number or email address where the claimant can be
contacted.
(2) The fee dispute claimant must provide the system's billing
representatives with sufficient supporting information to identify the
nature and amount of the fee dispute, including:
(i) If the alleged error results from the types of manifests
submitted being inaccurately described in the invoice, the correct
description of the manifest types that should have been billed;
(ii) If the alleged error results from the number of manifests
submitted being inaccurately described in the invoice, the correct
description of the number of manifests that should have been billed;
(iii) If the alleged error results from a mathematical error made
in calculating the amount of the invoice, the correct fee calculations
showing the corrected fee amounts; and
(iv) Any other information from the claimant that explains why the
invoiced amount is in error and what the fee amount invoiced should be
if corrected.
(3) EPA's system billing representatives must respond to billing
dispute claims made under this section within ten days of receipt of a
claim. In response to a claim, the system's billing representative
will:
(i) State 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; and
(ii) If a claim is rejected, then the response shall provide a
brief statement of the reasons for the rejection of the claim and
advise the claimant of their right to appeal the claim to the Office
Director for the Office of Resource Conservation and Recovery.
(c) Fee dispute claimants that are not satisfied by the response to
their claim from the system's billing representatives may appeal their
claim and initial decision to the Office Director for the Office of
Resource Conservation and Recovery.
(1) Any appeal from the initial decision of the system's billing
representatives must be taken within 10 days of the initial decision of
the system's billing representatives under paragraph (b) of this
section.
(2) The claimant shall provide the Office Director with the claim
materials submitted to the system's billing representatives, the
response provided by the system's billing representatives to the claim,
and a brief written statement by the claimant explaining the nature and
amount of the billing error, explaining why the claimant believes the
decision by the system's billing representatives is in error, and why
the claimant is entitled to the relief requested on its appeal.
(3) The Office Director shall review the record presented to him or
her on an appeal under this paragraph (c), and shall determine whether
the claimant is entitled to relief from the invoice alleged to be in
error, and if so, shall state the amount of the recalculated invoice
and the amount of the invoice to be adjusted.
(4) The decision of the Office Director on any appeal brought under
this section is final and non-reviewable.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
0
15. 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
16. Section 265.71 is amended by revising paragraphs (a)(2) and (j) and
adding paragraph (l) to read as follows:
Sec. 265.71 Use of manifest system.
(a) * * *
[[Page 458]]
(2) If the facility receives a hazardous waste shipment accompanied
by a manifest, the owner, operator, or his agent must:
(i) Sign and date, by hand, each copy of the manifest;
(ii) Note any discrepancies (as defined in Sec. 265.72(a)) on each
copy of the manifest;
(iii) Immediately give the transporter at least one copy of the
manifest;
(iv) Within 30 days of delivery, send a copy (Page 2) of the
manifest to the generator;
(v) Paper manifest submission requirements are:
(A) Options for compliance on June 30, 2018. Beginning on June 30,
2018, send the top copy (Page 1) of any paper manifest and any paper
continuation sheet to the e-Manifest system for purposes of data entry
and processing, or in lieu of submitting the paper copy to EPA, the
owner or operator may transmit to the EPA system an image file of Page
1 of the manifest and any continuation sheet, or both a data file and
image file corresponding to Page 1 of the manifest and any continuation
sheet, within 30 days of the date of delivery. Submissions of copies to
the e-Manifest system shall be made at the mailing address or
electronic mail/submission address specified at the e-Manifest program
website's directory of services. Beginning on June 30, 2021, EPA will
not accept mailed paper manifests from facilities for processing in e-
Manifest.
(B) Options for compliance on June 30, 2021. Beginning on June 30,
2021, the requirement to submit the top copy (Page1) of the paper
manifest and any paper continuation sheet to the e-Manifest system for
purposes of data entry and processing may be met by the owner or
operator only by transmitting to the EPA system an image file of Page 1
of the manifest and any continuation sheet, or by transmitting to the
EPA system both a data file and the image file corresponding to Page 1
of the manifest and any continuation sheet, within 30 days of the date
of delivery. Submissions of copies to the e-Manifest system shall be
made to the electronic mail/submission address specified at the e-
Manifest program website's directory of services; and (vi) Retain at
the facility a copy of each manifest for at least three years from the
date of delivery.
* * * * *
(j) Imposition of user fee for electronic manifest use. (1) As
prescribed in Sec. 265.1311, and determined in Sec. 265.1312, an
owner or operator who is a user of the electronic manifest system shall
be assessed a user fee by EPA for the submission and processing of each
electronic and paper manifest. EPA shall update the schedule of user
fees and publish them to the user community, as provided in Sec.
265.1313.
(2) An owner or operator subject to user fees under this section
shall make user fee payments in accordance with the requirements of
Sec. 265.1314, subject to the informal fee dispute resolution process
of Sec. 265.1316, and subject to the sanctions for delinquent payments
under Sec. 265.1315.
* * * * *
(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 may be submitted at any
time by any interested person (e.g., waste handler) shown on the
manifest.
(1) Interested persons must make all corrections to manifest data
by electronic submission, either by directly entering corrected data to
the web based service provided in e-Manifest for such corrections, or
by an upload of a data 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
person submitting the corrections certifies 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; and
(ii) A batch upload of data corrections may be submitted under one
certification statement.
(4) Upon receipt by the system of any correction submission, other
interested persons shown on the manifest will be provided electronic
notice of the submitter's corrections.
(5) Other interested persons shown on the manifest may respond to
the submitter's corrections with comments to the submitter, or by
submitting another correction to the system, certified by the
respondent as as specified in paragraph (l)(3) of this section, and
with notice of the corrections to other interested persons shown on the
manifest.
0
17. Section 265.1087 is amended by revising paragraphs (c)(4)(i) and
(d)(4)(i) to read as follows:
Sec. 265.1087 Standards: Containers.
(c) * * *
(4) * * *
(i) In the case when a hazardous waste already is in the container
at the time the owner or operator first accepts possession of the
container at the facility and the container is not emptied within 24
hours after the container is accepted at the facility (i.e., does not
meet the conditions for an empty container as specified in 40 CFR
261.7(b)), the owner or operator shall visually inspect the container
and its cover and closure devices to check for visible cracks, holes,
gaps, or other open spaces into the interior of the container when the
cover and closure devices are secured in the closed position. The
container visual inspection shall be conducted on or before the date
that the container is accepted at the facility (i.e., the date the
container becomes subject to the subpart CC container standards). For
purposes of this requirement, the date of acceptance is the date of
signature that the facility owner or operator enters on Item 20 of the
Uniform Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A), as
required under subpart E of this part, at 40 CFR 265.71. If a defect is
detected, the owner or operator shall repair the defect in accordance
with the requirements of paragraph (c)(4)(iii) of this section.
* * * * *
(d) * * *
(4) * * *
(i) In the case when a hazardous waste already is in the container
at the time the owner or operator first accepts possession of the
container at the facility and the container is not emptied within 24
hours after the container is accepted at the facility (i.e., does not
meet the conditions for an empty container as specified in 40 CFR
261.7(b)), the owner or operator shall visually inspect the container
and its cover and closure devices to check for visible cracks, holes,
gaps, or other open spaces into the interior of the container when the
cover and closure devices are secured in the closed position. The
container visual inspection shall be conducted on or before the date
that the
[[Page 459]]
container is accepted at the facility (i.e., the date the container
becomes subject to the subpart CC container standards). For purposes of
this requirement, the date of acceptance is the date of signature that
the facility owner or operator enters on Item 20 of the Uniform
Hazardous Waste Manifest (EPA Forms 8700-22 and 8700-22A), as required
under subpart E of this part, at Sec. 265.71. If a defect is detected,
the owner or operator shall repair the defect in accordance with the
requirements of paragraph (d)(4)(iii) of this section.
* * * * *
0
18. Subpart FF, consisting of Sec. Sec. 265.1310 through 265.1316, is
added to part 265 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.
265.1316 Informal fee dispute resolution.
Subpart FF--Fees for the Electronic Hazardous Waste Manifest
Program
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-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. Electronic manifest submissions include the hybrid or mixed
paper/electronic manifests authorized under Sec. 262.24(c)(1) of this
chapter.
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
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 in accordance with Sec. 265.1311(b), or by submitting both an
image file and data file in accordance with the procedures of Sec.
265.1311(c).
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) Per manifest fee. 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 facilities, with the fee assessed at
the applicable rate for electronic manifest submissions;
(2) The submission of each paper manifest submission to the paper
processing center signed by owners or
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operators of receiving facilities, with the fee assessed according to
whether the manifest is submitted to the system by mail, by the upload
of an image file, or by the upload of a data file representation of the
paper manifest; and
(3) The submission of copies of return shipment manifests by
facilities that are rejecting hazardous wastes and returning hazardous
wastes under return manifests to the original generator. This fee is
assessed for the processing of the return shipment manifest(s), and is
assessed at the applicable rate determined by the method of submission.
The submission shall also include a copy of the original signed
manifest showing the rejection of the wastes.
(b) Image file uploads from paper manifests. Receiving facilities
may submit image file uploads of completed, ink-signed manifests in
lieu of submitting mailed paper forms to the e-Manifest system. Such
image file upload submissions may be made for individual manifests
received by a facility or as a batch upload of image files from
multiple paper manifests received at the facility.
(1) The image file upload must be made in an image file format
approved by EPA and supported by the e-Manifest system; and
(2) At the time of submission of an image file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
or belief, the submitted image files are accurate and complete
representations of the facility's received manifests, and that the
facility acknowledges that it is obligated to pay the applicable per
manifest fee for each manifest included in the submission.
(c) Data file uploads from paper manifests. Receiving facilities
may submit data file representations of completed, ink-signed manifests
in lieu of submitting mailed paper forms or image files to the e-
Manifest system. Such data file submissions from paper manifests may be
made for individual manifests received by a facility or as a batch
upload of data files from multiple paper manifests received at the
facility.
(1) The data file upload must be made in a data file format
approved by EPA and supported by the e-Manifest system;
(2) The receiving facility must also submit an image file of each
manifest that is included in the individual or batch data file upload;
and
(3) At the time of submission of the data file upload, a
responsible representative of the receiving facility must make a
CROMERR compliant certification that to the representative's knowledge
or belief, the data and images submitted are accurate and complete
representations of the facility's received manifests, and that the
facility acknowledges that it is obligated to pay the applicable per
manifest fee for each manifest included in the submission.
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] TR03JA18.002
Where Feei represents the per manifest fee for each
manifest submission type ``i'' and Nt refers to the total
number of manifests completed in a year.
(b)(1) If after four years of system operations, electronic
manifest usage does not equal or exceed 75% of total manifest usage,
EPA may transition to the following formula or methodology to determine
per manifest fees:
[GRAPHIC] [TIFF OMITTED] TR03JA18.003
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Where Ni refers to the total number of one of the four
manifest submission types ``i'' completed in a year and O&Mi
Cost refers to the differential O&M Cost for each manifest submission
type ``i.''
(2) At the completion of four years of system operations, EPA shall
publish a notice:
(i) Stating the date upon which the fee formula set forth in
paragraph (b)(1) of this section shall become effective; or
(ii) Stating that the fee formula in paragraph (b)(1) of this
section shall not go into effect under this section, and that the
circumstances of electronic manifest adoption and the appropriate fee
response shall be referred to the System Advisory Board for the Board's
advice.
Sec. 265.1313 User fee revisions.
(a) Revision schedule. (1) 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.
(2) The fee schedules will be published to users through the e-
Manifest program website by July 1 of each odd numbered calendar year,
and will cover the next two fiscal years beginning on October 1 of that
year and ending on September 30 of the next odd numbered year.
(b) Inflation adjuster. The second year of each two-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 an adjustment to
recapture revenue lost in the previous two-year fee cycle on account of
imprecise estimates of manifest usage. This adjustment 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
Feei(Ave) is the average fee charged per manifest type
over the previous two-year 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 facility in response to an electronic
invoice or bill identifying manifest-related services provided to 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 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 after 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 (i.e.,
not paid by date 120 days from date of invoice) 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 processing and
handling charges.
(c) Compliance with manifest perfection requirement. A manifest is
fully perfected when:
(1) The manifest has been submitted by the owner or operator of a
receiving facility to the e-Manifest system, as either an electronic
submission or a paper manifest submission; and
(2) All user fees arising from the submission of the manifest have
been fully paid.
Sec. 265.1316 Informal fee dispute resolution.
(a) Users of e-Manifest services that believe their invoice or
charges to be in error must present their claims for fee dispute
resolution informally using the process described in this section.
(b) Users asserting a billing dispute claim must first contact the
system's billing representatives by phone or email at the phone number
or email address provided for this purpose on the e-Manifest program's
website or other customer services directory.
(1) The fee dispute claimant must provide the system's billing
representatives with information identifying the claimant and the
invoice(s) that are affected by the dispute, including:
(i) The claimant's name, and the facility at which the claimant is
employed;
(ii) The EPA Identification Number of the affected facility;
(iii) The date, invoice number, or other information to identify
the particular invoice(s) that is the subject of the dispute; and
(iv) A phone number or email address where the claimant can be
contacted.
(2) The fee dispute claimant must provide the system's billing
representatives with sufficient supporting information to identify the
nature and amount of the fee dispute, including:
(i) If the alleged error results from the types of manifests
submitted being inaccurately described in the invoice, the correct
description of the manifest types that should have been billed;
(ii) If the alleged error results from the number of manifests
submitted being inaccurately described in the invoice, the correct
description of the number of manifests that should have been billed;
(iii) If the alleged error results from a mathematical error made
in calculating the amount of the invoice, the correct fee calculations
showing the corrected fee amounts; and
(iv) Any other information from the claimant that explains why the
invoiced amount is in error and what the fee amount invoiced should be
if corrected.
(3) EPA's system billing representatives must respond to billing
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dispute claims made under this section within ten days of receipt of a
claim. In response to a claim, the system's billing representative
will:
(i) State 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; and
(ii) If a claim is rejected, then the response shall provide a
brief statement of the reasons for the rejection of the claim and
advise the claimant of their right to appeal the claim to the Office
Director for the Office of Resource Conservation and Recovery.
(c) Fee dispute claimants that are not satisfied by the response to
their claim from the system's billing representatives may appeal their
claim and initial decision to the Office Director for the Office of
Resource Conservation and Recovery.
(1) Any appeal from the initial decision of the system's billing
representatives must be taken within 10 days of the initial decision of
the system's billing representatives under paragraph (b) of this
section.
(2) The claimant shall provide the Office Director with the claim
materials submitted to the system's billing representatives, the
response provided by the system's billing representatives to the claim,
and a brief written statement by the claimant explaining the nature and
amount of the billing error, explaining why the claimant believes the
decision by the system's billing representatives is in error, and why
the claimant is entitled to the relief requested on its appeal.
(3) The Office Director shall review the record presented to him or
her on an appeal under this paragraph (c), and shall determine whether
the claimant is entitled to relief from the invoice alleged to be in
error, and if so, shall state the amount of the recalculated invoice
and the amount of the invoice to be adjusted.
(4) The decision of the Office Director on any appeal brought under
this section is final and non-reviewable.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
0
19. The authority section for part 271 is revised to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6926, and 6939g.
0
20. Section 271.3 is amended by revising paragraph (b)(4) to read as
follows:
Sec. 271.3 Availability of final authorization.
* * * * *
(b) * * *
(4) Any requirement imposed under the authority of the Hazardous
Waste Electronic Manifest Establishment Act:
(i) Shall take effect in each State having a finally authorized
State program on the same date as such requirement takes effect in
other States;
(ii) Shall supersede any less stringent or inconsistent provision
of a State program; and
(iii) Shall be carried out by the Administrator in an authorized
state except where, pursuant to section 3006(b) of RCRA, the State has
received final authorization to carry out the requirement in lieu of
the Administrator.
* * * * *
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21. Section 271.10 is amended by revising paragraph (h) introductory
text to read as follows:
Sec. 271.10 Requirements for generators of hazardous wastes.
* * * * *
(h) The state must follow the federal manifest format for the paper
manifest forms (EPA Forms 8700-22 and 8700-22A) and their instructions
and must follow the federal electronic manifest format and instructions
as obtained from the Electronic Manifest System described in Sec.
260.10 of this chapter.
* * * * *
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22. Section 271.12 is amended by revising paragraph (i) and adding
paragraph (k) to read as follows:
Sec. 271.12 Requirements for hazardous waste management facilities.
* * * * *
(i) Compliance with the manifest system including the requirement
that facility owners or operators return a signed copy of the manifest:
(1) To the generator to certify delivery of the hazardous waste
shipment or to identify discrepancies;
(2) To the EPA's e-Manifest system, in lieu of submitting a signed
facility copy directly to either the origination state or the
destination state; and
(3) After listing the relevant consent number from consent
documentation supplied by EPA to the facility for each waste listed on
the manifest, matched to the relevant list number for the waste from
Item 9b, to EPA using the allowable methods listed in 40 CFR
262.84(b)(1) until the facility can submit such a copy to the e-
Manifest system per 40 CFR 264.71(a)(2)(v) and 265.71(a)(2)(v).
* * * * *
(k) Requirements for owners or operators of facilities to pay user
fees to EPA to recover EPA's costs related to the development and
operation of an electronic hazardous waste manifest system, in the
amounts specified by the user fee methodology included in subpart FF of
40 CFR parts 264 and 265, for all paper and electronic manifests
submitted to the e-Manifest system.
[FR Doc. 2017-27788 Filed 1-2-18; 8:45 am]
BILLING CODE 6560-50-P