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          Hazardous Waste Manifest System and Amendments to Manifest
                                  Regulations
                                       
                                       
                                       
                      Response to Comments (RTC) Document
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                                       
                               December 5, 2017
                                       
                                       
                               TABLE OF CONTENTS
                                       


﻿I.	Background and Purpose of Document	i
1.	Background	i
2.	Purpose of Document	i

II.	Public Comments and Agency Responses	1
1. 	Data Access Services	1
2. 	Billable Event	2
3. 	Fee Methodology	4
4. 	Disallow Postal Mailed Manifests	6
5.	Inflation Adjuster	8
6. 	Revenue Recovery Adjuster	8
7. 	Two-Year Fee Schedule Revision Cycle	10
8. 	90-Day Lead Time for Fee Schedule Changes	11
9. 	Stray and Extraneous Documents	12
10. 	Paper Manifest Corrections	14
11. 	Incentivize Electronic Manifest Use	18
12. 	Payment Options	18
13. 	Fee Dispute Resolution	19
14. 	Financial Sanctions	20
15. 	Delinquent Payors List	21
16. 	Denial of Service Sanction	21
17. 	Suspension of Facility Authorization	22
18. 	Changing Transporters en Route	23
19. 	Submission of Manifest Data Corrections	24
20. 	Hybrid Approach	26
21. 	RIA	28
22. 	ICR	28
23. 	Other Comments	28

Table of Commenting Organizations	30


﻿I.	Background and Purpose of Document

1.	Background

On July 26, 2016, the Environmental Protection Agency (EPA or the Agency) published a proposed rule regarding its user fee methodology applicable to electronic and paper manifests submitted to the national electronic manifest system (or e-Manifest system) that is being established by EPA under the Hazardous Waste Electronic Manifest Establishment Act (81 FR 49072). After the implementation date for the e-Manifest system, certain users of the hazardous waste manifest would be required to pay a prescribed fee for each electronic and paper manifest they use and submit to the system in order for EPA to recover its costs of developing, operating, maintaining and upgrading the national e-Manifest system. The final rule that EPA develops in response to public comments on this action's proposed fee methodology will include the final fee methodology. In addition, EPA will include the initial fee schedule and the implementation date for the e- Manifest system in the preamble to the final rule.

EPA also proposed several amendments to the regulations governing the use of electronic hazardous waste manifests and the completion of manifests. These amendments propose: to change EPA's longstanding regulations regarding transporter changes to shipment routing information on the manifest during transportation, to specify a process by which receiving facilities may submit manifest data corrections to the e-Manifest system, and to modify a provision of the current electronic manifest use requirements that precludes the use of mixed electronic and paper manifests by those users desiring to make use of electronic manifests in settings where not all users are able to participate electronically.

EPA received 26 sets of comments in response to the proposal. 

2.	Purpose of Document

This document summarizes the public comments received in response to the proposed rule and provides the Agency's responses. The public comments (e.g., suggestions, concerns, questions) are summarized according to specific issues related to the proposal. 

In each summary, EPA indicates the number and identity of the commenters, using a unique commenter number assigned by EPA. At the end of this document is a table identifying each organization that commented on the proposal and its commenter number. In addition, the type of commenter (e.g., state, waste handler trade association) is identified in some of the summaries when helpful to clarify a comment's context. For example, if a comment discusses validation of manifest data, it may be helpful to know if the commenter is a state or waste handler. 

The Agency's responses clarify how the comments were considered in developing the final rule and e-Manifest system. This document does not address comments that are outside the scope of the e-Manifest.

II.	Public Comments and Agency Responses

1. 	Data Access Services 

Comment: Five commenters who agreed with EPA's proposal to only charge fees on waste handlers (Commenter Nos. 6, 9, 12, 16, 18). These commenters listed several benefits of limiting fees to waste handlers and not extending them to others, including the public. One of the commenters stated that, because EPA only intends on issuing fees to facilities, the term "user fee" should be holistically changed to "facility fee" (Commenter No. 6). Another (state) commenter stated that, based on its own experience attempting to collect fees from the general public or regulatory bodies, it would be extremely complex, likely result in the need for considerable oversight and operation cost just for any access fee collection system itself, and hinder the ready access to information long established as public by states and the EPA itself, as well as the public's view and attitude towards hazardous waste management in general (Commenter No. 12). 

Response: EPA agrees with these commenters who generally supported limiting fee collections in e-Manifest to the waste receiving facilities identified as the designated facilities on manifests. The final rule retains this focus, and limits fee collections to the receiving facilities designated on manifests, whether they are RCRA treatment, storage, and disposal facilities (TSDFs) or are the receivers of state-only regulated wastes subject to tracking with a RCRA manifest under state law. The final rule further accepts the comment pointing out the complexity and difficulty that would arise were EPA to attempt to collect user fees from either the general public or from regulatory bodies (i.e., states or tribes). The final rule therefore will not impose user fees on entities other than the waste receiving facilities named on manifests, and will not impose fees on the general public or on states or tribes accessing manifest data. EPA has decided to retain the "user fee" terminology in the final rule rather than the suggestion by a commenter to use the term "facility fee" in the final regulation. The Agency believes that the changes made in the final rule make it abundantly clear that receiving facilities are the focus of the rule's fee collections.

Comment: Six commenters expressed concern that the fees would be used to fund public access to the data (Commenter Nos. 16, 20, 21, 22, 24, 25). Based on their interpretation of the e-Manifest Act, they do not believe EPA can impose fees on regulated users for information services that will benefit the general public. Rather, they believe that costs incurred for public access should be paid for under the EPA's Freedom of Information Act (FOIA) budget or from general appropriations used to run the Agency. One of the commenters expressed concern regarding significant data requests by the public, which could increase costs beyond EPA's expectations (Commenter No. 22). Another commenter expressed concern that there are no proposed cost containment control mechanisms (Commenter No. 24). 

Response: EPA acknowledges the concern expressed by several commenters that the fees collected from receiving facilities might be used to defray the costs incurred by the system in providing the general public with access to manifest data. The Agency also understands the several commenters' argument that the definition of "user" under the e-Manifest Act includes in its scope the members of the regulated community who use manifests for tracking their waste shipments, and does not address members of the public and their use of the e-Manifest system. However, EPA does not agree with these commenters' suggestion that the Act's "user" definition precludes the Agency from establishing a public-facing module in e-Manifest to provide the public with reasonable access to manifest data. Therefore, in the final rule, EPA confirms the position announced in the proposed rule applying the user fee policies of OMB Circular A-25 to the issue of public access. In other words, the final rule retains the proposed rule's policy and rationale that that regulated community "users" of the system are the primary beneficiaries of the e-Manifest system. The members of the public who might obtain data from e-Manifest are only incidental beneficiaries of the system. Thus, it is appropriate under Circular A-25 user fee policy for the primary beneficiaries (members of the manifest regulated community) to cover the incidental costs of providing data access services to the incidental beneficiaries (members of the public) of the e-Manifest system. EPA believes that the costs of providing public access will be nominal, not significant, and that it will be much more efficient to recover these nominal costs through a small, incremental increase in the facilities' user fees, rather than incurring the administrative costs of establishing user accounts for all the possible members of the public that might want to view manifest data. EPA also believes that providing and funding public access to data in this manner will be far more timely and efficient than the suggestion by several commenters that public access should be provided and funded through the Freedom of Information Act (FOIA). 

Comment: Five commenters expressed concern with the possible scope of information that EPA may make accessible to the public (Commenter Nos. 16, 17, 20, 24, 25). They were concerned that the public may be granted access to aggregate or other information that by law is considered to be "Confidential Business Information (CBI)." One commenter stated, for example, that it would be very concerned if the public were able to quickly and easily query the e-Manifest system to build customer lists associated with a treatment, storage or disposal facility (TSDF) company or company facility. Another commenter expressed concern about the potential for increased access to very fine details of hazardous waste manifesting, which may create security concerns (Commenter No. 17). The commenter stated that the e-Manifest system, by making all manifest transactions electronic and searchable, offers the potential for much more fine-grained inspection by the public and for gaining insights into levels of business activity, rates and locations of hazardous waste generation, or even processes being used. The commenter suggested that the public-facing side of the e-Manifest system should provide aggregate data as EPA considers representative and useful for communicating total amounts and types of waste generation and treatment, but should not provide data identifiable by individual generating facility. Individual facility data should be available when appropriate and formally requested, such as by FOIA, but should not be available to anonymous visitors to EPA websites. Another commenter recommends that EPA provide public access to manifest data for specific shipments, just as FOIA allows for paper manifests (Commenter No. 20). The commenter stated that EPA should not make available aggregated data from the database that reveals customer lists which by law are protected as confidential business information. Aggregated data could also raise national security concerns. Another commenter stated that, while it is true that hazardous waste manifest data is available today within certain states that collect this data, typically this data either has restricted access, is published long after the transaction has been completed, or is not available to be downloaded for purposes of a granular data analysis (Commenter No. 24). The commenter also stated that EPA has not addressed topics related to Homeland Security's Chemicals of Interest List at 6 CFR Part 27, Appendix A. 

Response: EPA acknowledges the comments from several industry commenters expressing the concern that public access to e-Manifest might expose to members of the public data, particularly aggregate data, from the national database that might reveal customer lists or other data that are protected by law as Confidential Business Information or CBI. These commenters must be aware that this issue was fully aired and finally resolved in the final One Year Rule that EPA issued on February 7, 2014. See 79 Fed. Reg. 7518. The proposed user fee rule of July 26, 2016 did not re-open this issue, and only requested comment on the issue of how public access to manifest data should be funded. Therefore, today's final rule does not address the comments attempting to re-state and reexamine the issue of public access to data and whether e-Manifest might expose customer list or other CBI to competitors or the public at large. Again, these issues were finally resolved in the Final One Year Rule, and the commenters are invited to review the final One Year Rule for insight on how the Agency determined these matters. 

On the issue of security, EPA has coordinated with the Department of Homeland Security (DHS) on the issue raised by the two commenters who expressed concern that e-Manifest could provide the public with access to information on chemical wastes that are also chemicals of interest (COI) within the meaning of DHS's regulations addressing security at chemical facilities and in particular, the COI list in Appendix A to 6 CFR part 27. These commenters expressed the particular concern that a terrorist with unrestricted access to manifest data via e-Manifest might obtain information on the presence of COI at particular waste handlers, or might glean information on patterns of shipments involving these COI, thus enabling a terrorist to divert such materials and fashion from them a weapon that might be used to harm the homeland. After consulting with chemical security experts at DHS, EPA has agreed to withhold from disclosure on the public-facing module of e-Manifest certain information that could be used in the manner suggested by the commenters. Consistent with DHS rules and the COI Appendix, the manifests affected are those manifests for P-List and U-List chemical wastes that are also chemicals listed as COI on Appendix A to 6 CFR part 27. For this subset of manifests, the e-Manifest system will withhold from public disclosure on the public-facing module the following data: (1) the particular chemical waste name appearing in the shipping description; (2) the particular P-List or U-List waste code for these chemical wastes; (3) the quantity of each such chemical waste shipped; and (4) the shipment date. 

Comment: One commenter asked for clarification on whether conditionally exempt small quantity generators (CESQGs) of hazardous waste that elect to use either a paper manifest or the e-Manifest system would be charged the user fee (Commenter No. 3).

Response: If a manifest is required under a state's law for tracking CESQG waste shipments, the e-Manifest Act authorizes the inclusion of CESQG waste manifests in the scope of manifests to be tracked and collected in the system. For all such CESQG manifests entered in the e-Manifest system, EPA will collect the applicable fee from the receiving facilities named on these manifests, and not from the generator. Receiving facilities may elect to pass their fee expenses through to their generator customers, but that is a matter to be determined by each receiving facility, and not by this final rule.

2. 	Billable Event 

Comment: Fifteen commenters generally supported the assessment of fees on designated TSDFs to fund the e-Manifest system based on submittal of the final manifest copy (Commenter Nos. 1, 3, 6, 9, 11, 12, 13, 16, 17, 20, 21, 22, 24, 25, 26). They agree that the proposed approach is the most efficient option for collecting fees from industry. Three of these commenters expressed concern, however, that TSDFs may not only recoup these fees by passing on the cost to their customers (i.e., generators), but create new problems (e.g., surcharges, creation of an additional profit center) (Commenter Nos. 1, 3, 12). Two commenters noted the complexities of billing TSDFs and stated that EPA should ensure such uncertainties are addressed, such as whether different fees will be assessed for manifests voluntarily used by CESQGs (Commenter No. 3, 6). Three commenters stated that EPA will need to define "final manifest submission" (e.g., is "final manifest submission" equivalent to the TSDF entering an acknowledgement of shipment receipt into the e-Manifest system, or some other event?) (Commenter Nos. 6, 16, 26). Another commenter noted that the proposed approach places additional manpower and technology burden on TSDFs, so that their true cost of using the e-Manifest system will be greater than EPA's invoiced e-Manifest charges (Commenter No. 22). Another commenter noted that a minor drawback or limitation in EPA's proposed approach is that the transporters, as users of the e-Manifest system, would not be assessed fees for participating and benefiting in the use of the system as it is not feasible for a TSDF to chargeback per manifest fees to a transporter (Commenter No. 25). The commenter suggested that EPA may wish to consider a nominal fee for transporters that register and participate in the e-Manifest system.

Response: The proposal to deal with the submission by the receiving facility of the final manifest copy - when signed by the receiving facility to acknowledge waste receipts  -  as the primary billable event in the system received much support in the public comments. EPA agrees with commenters that this is the most efficient approach for collecting per manifest fees from regulated users, and this approach is being retained for the final rule. EPA is not persuaded by the several comments expressing the concern that facilities might inflate these fees so as to create a new profit center when passing these fees through to their customers. EPA believes there will be competitive pressures on facilities to not act in this manner, and it is also possible that facilities might reap sufficient cost savings from electronic manifests that might cause them to refrain from passing through some or all of these costs.

With respect to the example (manifest used voluntarily by a CESQG) cited by a commenter of the complexities of billing receiving facilities for different types of manifests, the final rule will in fact distinguish among manifest types insofar as the fee to be collected. See the discussion below on Fee Methodology. However, for fee assessment purposes, the final rule will differentiate manifests based on the mode of submission and their related processing costs, and not based on whether a manifest submission is voluntary or mandatory. Processing costs will arise whether a submission is voluntary or mandatory, and EPA will in either case collect the fee from the receiving facility named on the manifest.

EPA does not agree that a definition of "final manifest submission" is necessary to clarify the billable event for this final rule. EPA believes the final rule is sufficiently clear that the system will treat the submission by a receiving facility of each manifest that is signed by the receiving facility to acknowledge the receipt of wastes as a billable event giving rise to the obligation to pay the prescribed per manifest fee for each manifest so signed and submitted.

EPA acknowledges that the use of e-Manifest may give rise to manpower costs and technology costs that will need to be incurred by waste industry members in order to realize all the benefits of using electronic manifests. In this respect, these industry members' full costs will not be reflected in the invoiced manifest fees charges that EPA will collect under the final rule's approach. This results from the fact that EPA is required by the e-Manifest Act to assess user fees that will recover the Agency's costs in developing and operating the e-Manifest system. EPA is not legally authorized to recover more than its system-related costs, so the Agency cannot set the system fees to recover any additional costs incurred by the industry. While these additional costs are not insignificant, EPA emphasizes that the economic analyses for e-Manifest disclose that there will be substantial net cost savings enjoyed by the industry members who make these investments to leverage all the benefits and net costs savings made possible by the use of electronic manifests.

EPA also appreciates the comment noting that the proposed rule approach does not impose a fee on transporters as users of the system, and suggesting that EPA may wish to consider imposing some nominal fee on the hazardous waste transporter community that registers and uses the system. While there is some merit to this suggestion  -  those benefiting from e-Manifest should help pay costs through an equitable user fee  -  EPA is not at this time imposing a user fee on the transporter community. The transporter transaction in the field is one of the more significant issues that e-Manifest will need to overcome as an implementation matter, let alone as a billing matter. For the foreseeable future, therefore, EPA will retain the approach in the final rule of dealing with the final facility copy submission as the billable event, rather than attempting the far more complex tasks of assessing fees on generators and transporters for their involvement in hazardous waste shipments. 

Comment: Four commenters suggested that EPA delete regulatory language under "Imposition of User Fee" at 40 CFR 262.24(g) and 263.20(a)(8) (Commenter Nos. 6, 11, 17, 26). They indicated that such language contradicts EPA's proposal, which discusses EPA billing the TSDFs and not generators or transporters. They also offered edits to the user fee provisions, e.g., to revise "user fee" to "facility fee" or "receiving facility fee."

Response: EPA thanks these commenters for the comments noting that there was regulatory language issued with the One Year Rule that suggested the possibility of collecting user fees from generators and transporters. EPA accepts these comments, and this final rule eliminates all vestiges of user fee collection authority from the noted sections of 40 CFR parts 262 (generators) and 263 (transporters).

Comment: Three commenters noted the complexities of state regulation of state-only handlers and wastes and asked EPA to address them (Commenter Nos. 7, 18, 26). One (state) commenter noted that some state-only regulated users are not subject to EPA hazardous waste regulation and do not have an EPA Identification Number, which may need to be addressed in the final rule (Commenter No. 7). Another (state) commenter noted that a number of facilities in its state use exempt management units and that such facilities may need to adjust their accounting operations to accommodate fee payments (Commenter No. 18). Another commenter asked EPA to clarify how it will bill facilities that use the e-Manifest system for state regulated waste, including CESQG waste that is required to be manifested by some states (Commenter No. 26). The commenter also stated that manifests for state-only wastes can be closed out at facilities that are not TSDFs and asked for clarification on how the e-Manifest system will work with the non-TSDFs closing out a manifest.

Response: These commenters raise valid points that not all state-only regulated waste handlers and receiving facilities are subject to federal RCRA regulation, and thus they may not now have EPA identification numbers. EPA will coordinate with our authorized state regulators and make efforts to reach out to these handlers and receiving facilities so that they understand the new obligations under the e-Manifest system, and where necessary, obtain unique identifiers. This will be handled as a program implementation matter, however, and not addressed by the final rule.

On the issue raised by commenters about the particulars concerning CESQG wastes and other state-only regulated wastes that might be closed out at non-TSDFs, this matter is largely addressed by the Act itself. The e-Manifest Act at RCRA section 3024(h), 42U.S.C. § 6939(h), provides that any waste that is subject to a manifest under either the requirement of the origination state or the destination state must be closed out in the system. Therefore, if an origination state requires a manifest for a waste originating in that state, but it enters a state where the waste is not hazardous or is exempt from the manifest, the receiving facility in the latter state must nevertheless close out this manifest and submit it to the system for processing, with the appropriate fee collected for the submission. This is the so-called "long arm" provision of the Act which requires all manifests to be closed out in the system if either the origination or destination state requires a manifest for that waste. EPA has codified this requirement in the final rule provisions at 40 CFR 260.4, which the rule applies generally to receiving facilities and not just to RCRA permitted TSDFs regulated by part 264. EPA recognizes that the implementation of this new requirement at non-TSDFs will require significant outreach efforts to bring these non-TSDF facilities into compliance.

Comment: Two commenters expressed concern that EPA uses the term "TSDF" interchangeably with "Designated Facility" when referring to the parties receiving hazardous waste shipments and submitting final manifests to the EPA (Commenter Nos. 12, 18). They indicated that, while the majority of hazardous waste shipments are delivered to a permitted TSDF, a large remaining number of manifested shipments do not terminate at permitted TSDFs. Designated facilities that are not TSDFs may still be required to receive manifested shipments of hazardous or other regulated wastes and thus to submit final manifests to the EPA and be assessed fees for the submittal. This could include, but may not be limited to, hazardous waste recycling facilities that do not store the wastes prior to entry into the reclamation process, polychlorinated biphenyl (PCB) commercial storers, and generators to which rejected hazardous waste shipments are returned on a different manifest. 

Response: EPA thanks the two commenters for raising the valid point that EPA at times used the term "TSDF" interchangeably with "designated facility" in the proposed rule when referring to the parties receiving hazardous waste shipments and submitting final manifests to e-Manifest. After more consideration of this matter, EPA has concluded that in the final rule, the term "receiving facility" is the preferred term with the proper breadth. In fact, neither the TSDF nor designated facility terminology is adequate to identify the full range of facilities that may receive manifested waste shipments and be subject to e-Manifest Act requirements to submit final manifests to the system. TSDF is understood to refer to a RCRA permitted treatment, storage, or disposal facility, while the term "designated facility" is defined in 40 CFR 260.10 to mean a TSDF issued a RCRA permit or interim status by EPA or an authorized state, and designated on the manifest by the waste generator. Thus, these terms are basically interchangeable in their meaning, but neither connotes sufficiently the full breadth of coverage of e-Manifest. Therefore, EPA is using the broader term "receiving facility" for this purpose in the final rule, as it is broad enough to include the RCRA TSDFs that are waste receivers, as well as the non-TSDFs that receive hazardous wastes under manifests, including state-only regulated waste facilities that may lack RCRA permits but are required to submit manifests to the e-Manifest system and pay the applicable fees to EPA for processing their manifest submissions.

Comment: One commenter asked EPA to carefully consider the types of data that it should request from designated facilities (Commenter No. 16). The commenter stated that most TSDFs use internal electronic databases to store key manifest data related to all waste shipments it receives; however, these databases may not include every data element included on a paper manifest (e.g., emergency response phone number). Because TSDF internal databases likely do not mirror all data elements included on the paper manifest, the Agency cannot assume that TSDFs will be able to easily transfer manifest information directly from their existing databases via Extensible Markup Language (XML) upload. TSDFs will need some transition time to alter existing databases to accommodate the data elements EPA deems essential for entering into the e-Manifest system. The commenter recommends that EPA engage directly with TSDF representatives to discuss each of the data elements from the manifest that EPA needs to have electronically entered in to the e-Manifest system.

Response: The e-Manifest team has engaged for many years with significant numbers of TDSFs representing a very large portion of the manifests in commercial use. Based on extensive experience with receiving facility systems and frequent communications with the IT personnel who support them, there is no reason to assume that their systems do not include all of the fields on the paper manifest. EPA will continue to engage receiving facilities and is currently conducting system testing with receiving facilities to ensure that industry systems include all of the manifest requirements (which will be submitted via JSON, not XML). These efforts are ongoing and will be continued through and beyond system launch. 
	
Comment: Three commenters submitted editorial or other suggestions about the user fee regulations at 40 CFR 264.1310 and 265.1310 (Commenter Nos. 6, 9, 26). Two commenters noted that the user fee regulations discuss "four manifest submission types" (Commenter Nos. 6, 26). They suggest that these four types be included in the "Manifest Submission Type" definition at 40 CFR 264.1310 and 265.1310. Another commenter noted that the definition of "Electronic Manifest Submissions" at 40 CFR 264.1310 and 265.1310 refers to manifests that are initiated electronically; however, this definition does not address hybrid manifests that are initiated by the generator using the paper manifest (Commenter No. 9).  The commenter suggested revising the definition to capture hybrid manifests as appropriate.

Response: EPA appreciates the comments requesting that the Agency include more explicit definitions clarifying the four manifest submission types that affect the fees that will be assessed by EPA to process these manifests in the system. In response, EPA has expanded the definition of "Electronic Manifest Submissions" in the final rule to clarify that these electronic submissions include manifests that are initiated, signed, and submitted electronically in the system, as well as the manifests initiated as hybrid, or mixed paper/electronic manifests per § 262.24(c)(1). Thus, hybrid manifests, while initiated at generator sites with the paper form, are executed electronically thereafter, and will be processed as an electronic manifest and charged the electronic manifest fee when submitted to the system. The definition of "Paper Manifest Submissions" further clarifies that this term extends to the three types of paper manifest submission: (1) mailed manifest forms, (2) image file uploads, and (3) data file uploads in a format supported by the system, with the image file attached. These definitions clarify the manifest submission types of interest to e-Manifest and relevant to fee assessments.

3. 	Fee Methodology
 
Comment: Seven commenters expressed general agreement with EPA's approach of implementing Option 2 with the caveat that, if the 75% rate is not reached within 4 years, then Option 3 will be implemented (Commenter Nos. 3, 6, 12, 18, 20, 25, 26). One of the commenters (state agency) stated its belief that the 75% threshold is reasonable and attainable (Commenter No. 12). The commenter believes, based on public inquiries, that adoption of electronic manifesting by a relatively small number of transporters will result in a large proportional shift to electronic manifest numbers and that the 75% threshold is likely to be met within those four years, provided the electronic manifest system operates as intended. The commenter cautioned, however, that the differing fees between the two options, or even a different calculation method, will likely not be the primary motivating factor for selection of electronic or hardcopy manifest by transporters/TSDFs. Therefore, the commenter does not believe that changing to Option 3 will have an appreciable impact on the electronic manifest system adoption rate. Two commenters stated that EPA should not set a usage rate of 75% in four years by regulation, but should work with the Advisory Board to decide when a transition to the higher fee for paper manifests is warranted (Commenter Nos. 20, 25). The commenters believe it is important to the success of the e-Manifest program that EPA allow generators to adopt the e-Manifest because of its efficiencies and cost savings, and not because the transition is coerced by higher fees imposed by federal regulation. 

Response: EPA understands the points raised by these commenters both pro and con on the question whether the rule should include the proposed fee pivot conditioned on whether electronic manifest usage reaches the proposed 75% threshold in four years. The Agency also appreciates the points raised whether a fee-based incentive will actually be effective to induce users to adopt electronic manifesting more quickly, and whether any pivot to a higher fee should be accomplished by this regulation, as opposed to being left to the Advisory Board to determine. In the final analysis, EPA is persuaded to retain the regulatory fee pivot in the final rule, conditioned on the 75% goal for electronic usage after four years. The adoption of electronic manifesting by several large waste management firms would go a long way toward meeting the 75% usage goal, and four years is not an unreasonable benchmark for measuring progress. Also, the Agency notes that the effect of the higher fee resulting from the rule's fee pivot is not the imposition of a penalty, but only the implementation of a fee formula under which paper manifests that continue in use after four years will be required to bear more of their actual costs, rather than being subsidized in part by electronic manifests. Nevertheless, EPA understands that there may be implementation and technology challenges that frustrate early adoption of electronic manifesting. For this reason, EPA has modified the fee pivot from the proposed approach. As the program approaches the four-year benchmark, EPA will evaluate the circumstances of electronic manifest adoption. At that time, EPA will publish a notice indicating whether the 75% adoption rate has been realized or not, and also discussing any facts or circumstances that might explain why the goal was or was not met. At that time, EPA will state either that the fee pivot will take effect under the final rule's conditions, or, EPA will determine then to refer the matter to the Advisory Board and seek the Board's recommendations on a fee increase or other incentives to promote electronic manifesting. Thus, the final rule provides the Agency with the option to implement the fee increase under the terms of the final rule, or seek the Board's input if there appear to be extenuating circumstances justifying more evaluation.

Comment: One commenter stated that EPA should consider amortizing start-up costs over six years rather than five because of the two-year fee revision cycle (Commenter No. 9). The commenter asked if the marginal cost per manifest would increase significantly as paper manifests become less common and EPA maintains the paper processing center and if this effect would be much stronger with fee Option 3. The commenter also suggested that it looks like an inadvertent error that Option 3 allocates the Help Desk Cost only to "O&M all other" and not "O&M fully electronic." 

Response: While EPA understands the basis for the comment suggesting a six-year amortization period for system start-up costs, whether the amortization period runs out at the start or in the middle of the two-year fee cycle is not that critical. In either case, the fee schedule published for year six would be calculated with the factor in the formula representing recovery of system start-up costs eliminated. Thus, when the fee schedule for years five and six are published, users could expect to see a fee reduction in the year six schedule to reflect that start-up costs no longer must be recovered. EPA did not receive any significant comments addressing the reasonableness of the proposed five-year amortization of start-up costs in the fee formula. Therefore, EPA is finalizing the fee formula with a five-year amortization period.

EPA does not expect that the marginal cost per manifest will increase significantly as paper manifests become less common. The labor costs for the activities involved in processing a single paper manifest will be similar, whether the Agency is processing thousands of such manifests or a million paper manifests. What will change is the amount of staffing that EPA will devote to paper manifest processing as the number of paper manifests dwindle. Thus, the paper processing effort should be scalable so that the staffing responds proportionately to the numbers of manifests undergoing processing. The commenter is correct that under Option 3, the paper manifests that remain in use in later years will bear the non-labor costs of the processing center, and this will have the effect of increasing paper manifest costs to some extent over time. This effect should not have as great an effect on fees as the marginal labor costs have, but EPA believes that this effect could be helpful in discouraging paper manifest use as the need for a large paper processing center winds down.
 
Comment: One commenter (state agency) expressed agreement with the five-year amortization period to recover system set up costs but stated that it will be incumbent on the EPA to carefully budget, monitor and separately track the amortization amounts that will remain in the System Fund to ensure that they are correctly counted only towards setup cost recovery and not counted towards a possible false 'surplus' in the Fund (Commenter No. 12). The commenter stated that the very low surplus amounts allowed by the authorizing legislation and the likely close oversight that will be accorded to that Fund by large payees into it (i.e., users of large numbers of manifests, or relatively large and sophisticated transporter vendors), and the expected outcry if the EPA appears to collect too much money, render this need acute and worthy of emphasis.

Response: EPA thanks the commenter for pointing out the need to distinguish fee collections aimed at recovering start-up costs from the accumulation of a surplus in the System Fund. To avoid the appearance that recovered start-up costs might improperly be treated as a surplus, EPA intends to establish a distinct sub-account in the System Fund for the deposit of monies that are collected to offset the system's start-up costs. Funds deposited in this sub-account will be accounted for distinctly from other fee deposits in the Fund, and they will be earmarked as collections dedicated to the recovery of start-up costs and shall not be included in any surplus calculations. 

Comment: One commenter expressed concern about the high level of detail and formulas in the regulations (Commenter No. 17). The commenter recommends that EPA reduce the amount of e-Manifest cost accounting detail in the regulations and limit the cost recovery sections (new parts 40 CFR 264.71 and 265.71, Subpart FF  -  "Fees for the Electronic Hazardous Waste Manifest Program") to a statement of principles copied from the Hazardous Waste Electronic Manifest Establishment Act. The commenter also recommends that the regulations clarify that, in accordance with the Act, the program will be self-supporting based on user fees, and that it will be periodically reviewed and audited.

Response: While EPA appreciates the concern of the commenter that the rule's detail and formula introduce complexity to the fee determination subject matter, the Agency must reject this comment. The e-Manifest Act and federal user fee policy require that our user fees accomplish full cost recovery. EPA has included the detail in the fee regulation on program cost categories and the formula factors allocating these program costs to particular manifests so that there will be transparency and accountability to our users and overseers on how we determined the program's fees. As the program will be audited, we believe it is necessary to substantiate our fee determinations by detailed cost accounting and manifest usage accounting, rather than relying upon a statement of principles as suggested by the commenter.

Comment: Two commenters asked for greater clarification of the fee calculations (Commenter Nos. 16, 24). One of the commenters stated its belief that the Agency has not provided sufficient information or justification for differentiating the user fees among the various ways that EPA receives the manifest data (Commenter No. 16). For example, it does not believe EPA has provided adequate information to explain the added costs of receipt of e-Manifest data using an XML upload as opposed to direct interface with the e-Manifest system or described what is encompassed in "direct interface with the system." The commenter also expressed concern that EPA has not addressed how it will handle manifest uploads and the fees associated with rejected waste shipments. The commenter also is concerned about the illustrative manifest costs that the Agency included in the preamble. The commenter does not believe the Agency has provided sufficient information for the commenter to evaluate whether these costs reflect the true costs of operating and maintaining the e-Manifest system. In addition, the commenter is concerned that the generators most likely to use paper manifests are small quantity or infrequent generators. The manifest fees presented in the illustrative table could increase hazardous waste management costs by 50% or more. Another commenter stated that no cost component breakdown is presented for the long-term data storage within the e-Manifest system (Commenter No. 24). The commenter stated that current recordkeeping requirements for paper manifests are set at three years and the Act does not change this requirement. The commenter believes that any system administration costs related to data storage greater than a three-year time period should not be included as "User Fees" assessed against the regulated community.

Response: EPA acknowledges the comments requesting more clarification of the proposed rule's fee calculation approach, and requesting additional justification of the differential fees. EPA emphasizes that the economic model EPA used for the differential fee approach focused on the marginal labor cost of processing each of the several manifest submission types. As for justifying the different fee charged for XML submissions from paper manifests, the Agency notes that the use of the XML data file upload also requires the submitter to include an image file with the data file upload. The system personnel will incur some additional effort and processing costs by having to associate the image file with the data file upload in the system. Thus, there is some incremental manual processing burden in working with these data uploads that will not be associated with fully electronic manifests. This accounts for the nominal fee differential between these two submission types. For the image file uploads and for mailed manifests, it is quite obvious that both of these submission types will involve similar manual processing to key in the data and conduct some Q/A of the key entry processes.

EPA explains how it will handle rejected waste manifest processing and their fees in another section of this comment response document. Briefly, EPA intends to charge the standard per manifest fee (based on submission type) for each manifest required by a rejected waste. Thus, if a full load rejection is executed on the original manifest per the rejection procedures, then one manifest fee will be assessed. If a second manifest must be prepared to re-ship a partial load rejection, then one fee will be charged the receiving facility under the original manifest for processing a partial receipt, and a second fee will be assessed for the re-shipment to another facility of the rejected wastes.

As for the illustrative costs and fees presented in the proposed rule, EPA included the table of illustrative fees in the proposal to demonstrate how the fees might be calculated and the possible range of resulting fees under varying assumptions of system costs and numbers of manifests. These illustrative cost ranges were estimates only and were not intended to represent the actual costs of operating and maintaining the system. At the time we published the final rule, the system set-up costs and operating costs were better known than they were at the issuance of the proposed rule, and as we award the final system contracts and approach the system launch, these costs will become even more definite. The result is that the fee estimates announced in the preamble of the final rule will closely approximate the fees to be charged at system launch, and EPA will update the fee schedule on the program's web site as the cost estimates we relied on to develop the fee schedule in the preamble are replaced with the actual cost numbers from our final contract awards. 

The final fee schedule will be based on our actual setup and operating costs, and not on the broad ranges of possible costs suggested by the proposed rule's illustrative fee table. The final rule and updated fee schedules will result in fees that are fairly nominal compared to the broad ranges of fees in the proposed rule, and EPA is quite certain that the resulting per manifest fee for even the smallest shipments would not increase hazardous waste management fees by anything close to the 50% figure suggested by the commenter. 

As for long term storage and its costs, EPA believes that many manifest users do have expectations and needs for long-term storage or archiving services beyond the regulatory retention period of three years. For years, EPA has heard that manifests are commonly retained by users for longer periods of time for risk management, due diligence, and audit purposes, and so that they can retain information relevant to their involvement with particular wastes and the sites that manage them. EPA will consult with users and the e-Manifest Advisory Board on whether and how to support long-term storage in e-Manifest, and whether this service should be included in overall system operating costs that are shared by all manifests and their fees. Alternatively, archiving services could be offered only to those requesting such services and funded by a separate fee for this service, or be handled as a service that these users need to provide and fund on their own outside of e-Manifest. 

Comment: One commenter suggested that EPA focus on formulating an accurate estimate of the costs that will contribute to each fee calculation and use that to identify a maximum fee (fee cap) that will be imposed for each manifest category (Commenter No. 22). The commenter believes that establishing a fee cap will help ensure that system costs are kept in check and that changes to the system will have some cost accountability. It stated that accurate upfront estimates of development and O&M costs are needed to prevent a program/fix/reprogram cycle, which could cause costs to rapidly get out of hand. The commenter also asked EPA to confirm that the system development cost category in the Fee Methodology does not include costs associated with developing the Pilot Comment Platform that was rolled out together with the proposed rulemaking. 

Response: EPA will set its fees based upon its actual program costs, which will be derived in a straightforward manner from the Agency's budget and procurement documents. Program costs are already being closely tracked and coded for accounting and auditing purposes, and these actual cost figures will be inserted into the fee formula under the appropriate cost category items for the relevant period of system development and operation. Thus, there will be no need to formulate estimates, as actual program and procurement cost figures will be used. As we are under a mandate to accomplish full cost recovery through our user fees, there is no place in such a system for an arbitrary or maximum fee cap device. Instead, accountability will be accomplished through the regular audits of the system's financials, through the regular meetings of the Advisory Board and its discussions of fees and financial matters, and in the program's required Reports to Congress. There are numerous measures in place to provide the accountability desired by the commenter. We also confirm that the system development cost category does not include the Pilot Comment platform that was used for collecting comments on the proposed rulemaking.

Comment: One commenter indicated that it does not support Option 1 due to its expected higher fees for all users (Commenter No. 21). The commenter supports Option 3 to reward electronic users with the lowest manifest user fee. This option should also help move most users to the fully electronic option the quickest to help EPA meet its cost savings goals.

Response: EPA appreciates the commenter's interest in the highly differentiated fee option (proposed Option 3), as it requires paper manifests to bear more of their costs (particularly, the non-labor costs), and thus results in lower fees for electronic manifests and incentivizes electronic manifest usage. In the final rule, EPA selected a compromise approach under which we would initially implement the differentiated fee option (proposed Option 2), but then move to the highly differentiated fee approach favored by the commenter after four years, if we do not by then see 75% electronic usage. The Agency believes that the selected approach will provide a smoother transition in the initial years of implementation, when we expect to see a significant amount of paper manifests submitted to EPA by data uploads to the system. This manner of submission presents many of the advantages of electronic submissions, and suggests an initial or interim step on the path to fully electronic manifests. If progress stalls, however, the final rule would provide authority to move to the Option 3 approach by implementing the rule's fee pivot.
Comment: Two commenters expressed opposition to linking the manifest fee calculation to the end management of the waste documented on the manifest (Commenter Nos. 12, 20). One of the commenters stated that, not only would any attempt to link these two concepts be unavoidably complex, it would also undercut the rationale stated by the EPA and inherently endorsed by Congress in the enabling legislation, that promulgation of an electronic manifest system is for the purpose of simplifying documentation, providing transparency to all parties regarding the hazardous waste transport system, and enhancing utility and retention for hazardous waste transport documentation (Commenter No. 12). Another commenter stated that EPA should not consider other incentives at this time, such as waste minimization or recycling, for fee discounts or credits because such incentives unrelated to the actual cost of the e-Manifest system will be difficult for EPA to track and validate, and will improperly increase per manifest expenses charged back to e-Manifest users (Commenter No. 20).
Response: EPA appreciates the points raised by these commenters, and the Agency accepts the comment. The final rule does not link fee calculations to the end management of the wastes described on manifests. The commenter is also correct that any attempt to assign fee discounts tied to waste management methods would complicate the fee system, as it would introduce factors not related to the costs of the e-Manifest system. The final rule does not include any such incentives unrelated to program costs.

4. 	Disallow Postal Mailed Manifests

Comment: Three commenters expressed opposition to an alternative approach to require designated TSDFs to submit paper manifests to EPA by electronic upload only (e.g., XML file) (Commenter Nos. 12, 18, 19). A commenter (state agency) indicated that it does not see significant benefits to scanned versions over hardcopies in regard to key punching (Commenter No. 12). In its experience, images of hardcopy manifests can be more difficult and costly to process, as many scanners likely to be used in the near future by manifest submitters can too easily produce a faint, illegible image that is useless for QA/QC purposes for validating the accompanying data against the manifest copy. The commenter also expects that some of the receiving facilities covered under the final rule will not have sophisticated equipment for producing legible scanned documents. Another commenter (state agency) indicated its experience with implementing an electronic Biennial Report and expressed its concern about the burden and cost some facilities will bear in order to switch to an electronic platform to support the e-Manifest system (Commenter No. 18). The commenter also stated that disallowing paper manifests at initial startup would likely present a hardship for receiving facilities that are not in a state that collects manifests and are not owned by nationwide companies. 

Response: EPA acknowledges the several comments expressing opposition to restricting receiving facilities' submissions of paper manifests to digital means, rather than mailed submissions of the paper forms. These comments in opposition represent a minority of the comments on this issue, as most commenters, especially the receiving facilities most impacted, supported the concept of limiting submissions to digital means. We agree with the state commenter with concerns that submission of scanned images will not greatly reduce the processing burden of data key entry relative to processing paper forms, although there will be some modest reduction in processing scanned images as a result of not having to open and scan the envelopes received in the mail. We acknowledge also the concern of the commenters that scanned images may at times be of poor quality and more difficult to process in some cases than the mailed forms. Fortunately, EPA believes that the great majority of the manifests submitted to the system by digital means will be by data file upload, not scanned images. Further, EPA will not consider the submission of an illegible scanned image to be compliance with the manifest submission requirement.

EPA appreciates the comment suggesting that an immediate ban of paper mail manifest submissions would work a hardship on some receiving facilities, as well as the comment from several commenters suggesting that the hardship of such a ban could be mitigated by a transition period of several years, so that facilities could adapt to the requirement to submit digitally. EPA has accepted this comment. Thus, the final rule will allow paper manifest submissions by mail or digital means for an initial period of three years. After the three-year transition period (that is, after June 30, 2021), receiving facilities will be limited to submitting the data from their paper manifests by either a legible scanned image upload or by a data file upload accompanied by the scanned image. EPA believes that a three-year transition period will enable receiving facilities to acquire the capacity to submit by digital means and avoid the burden or hardship that might result if these facilities were immediately prohibited from submitting manifest copies by mail.

Comment: Seven commenters supported the alternative approach, i.e., to disallow postal mailed manifests (Commenter Nos. 9, 20, 21, 22, 24, 25, 26).  One of the commenters stated that, because the ink-signed paper copies are the enforceable copies of record, TSDFs that receive paper manifests will likely retain the original copy (Commenter No. 9). If a photocopy is mailed to EPA's processing center, photocopying introduces yet another layer of possible data errors due to poor copy quality; scanned copies are more legible and more cost-efficient. Four commenters stated that, although they support this approach, EPA should take into account that there may be times when the e-Manifest system malfunctions or has to undergo maintenance and as a result submitting manifest by postal mail may be the only way to get the information to the Agency (Commenter No. 20, 21, 22, 25). Another commenter stated that the timing of elimination of paper manifests must be tied with the DOT's schedule for electronic shipping papers (e.g., some period of time after the DOT electronic shipping paper requirement is fully implemented) (Commenter No. 22). Another commenter stated that EPA should be prepared to address the issue that may occur whereby a TSDF does not submit the required manifest data electronically either due to technical issues/limitations or simple disregard for regulatory compliance (Commenter No. 25).

Response: EPA acknowledges the numerous comments that supported the approach of disallowing mailed manifest submissions by receiving facilities. EPA has adopted the approach of restricting mailed manifest submissions in the final rule, but with a three-year transition period during which facilities may submit final paper manifests by mail or by digital means.

The Agency understands the concern of the several commenters who suggested that there may be occasions when the system is down or there are malfunctions or maintenance requirements that may necessitate mailed submissions of manifests. While there may be limited circumstances where this could occur, EPA notes that paper manifests are not required to be submitted immediately to the system after receipt of wastes. If the system were to be momentarily down on account of a malfunction or for maintenance, the facility could simply delay the digital submission of its manifest data until the system is restored or maintenance activities completed. Thus, an exception to the digital submission requirement (after the three-year transition) should not be necessary to accommodate such circumstances.

EPA rejects the suggestion of the commenter that the elimination of the paper manifest submission option should in some manner be tied to DOT's schedule for allowing electronic shipping papers. The timing and circumstances under which DOT will allow electronic shipping papers are still not certain, and EPA must by statute implement e-Manifest to reduce the administrative burden of the manifest. The processing of mailed manifests is the most labor intensive and costly activity for the e-Manifest system. Further, DOT regulations currently allow copies of shipping papers to be retained electronically after transport has been completed, so these e-Manifest requirements are not inconsistent with hazmat law in dealing with the management of post-receipt paper submissions.

Comment: Three commenters stated that, if this alternative approach is taken, waste handlers should be given a "grace period", e.g., all TSDFs must submit paper manifests electronically to EPA within one year (or some reasonable amount of time) from the adoption of the rule (Commenter Nos. 3, 16, 18). This will give those TSDFs time to implement the needed software/hardware to convert the paper manifests that they are receiving to electronic copies to be provided to EPA. 

Response: EPA acknowledges the several comments suggesting a grace or transition period on one or several years for facilities to transition away from submitting paper manifests by mail. As stated above, the Agency has accepted this comment by adopting in the final rule a three-year transition period. After the three-year transition period has run (that is, after June 30, 2021), receiving facilities will then be restricted to submitting data from their paper manifests to the system by digital means.

5.	Inflation Adjuster 

Comment: Four commenters expressed general or limited support for the proposal for an inflation adjustment factor predicated on the use of the CPI-U, for all items, not seasonally adjusted, as a sufficiently representative inflationary index and a means to adjust e-Manifest user fees for inflation between the first year and second year of the two-year fee schedules (Commenter Nos. 12, 20, 21, 26). One of the commenters expressed its belief that a two‐year fee schedule revision cycle may be insufficient for the EPA to maintain the relatively very narrow legislatively‐authorized System Fund range (Commenter No. 12). Given the ready availability of the CPI‐U value, the commenter suggested that recalculation of the fee schedule on an annual basis instead of biennial would not be a burden on the EPA and could be readily expected and planned for by manifest submitters. Another commenter stated that, concerning the second request about adjusting fees for inflation between the first and second year of the two-year fee schedule, it would seem best that the EPA should re-evaluate the manifest fee cost every two years to allow for proper adjustments, but the inflation adjuster should be an annual adjustment and thus be included between the first and second year of the two-year fee schedule (Commenter No. 21).

Response: EPA appreciates the comments respecting the proposed two-year fee cycle, with adjustments made for inflation between years one and two based on recent trends in the CPI-U. Commenters generally supported the use of the CPI-U as a reasonable measure of inflationary trends in adjusting e-Manifest fees to reflect cost changes. EPA remains convinced that a two-year fee cycle with inflation adjustments between years one and two of each cycle will result in a stable and responsive fee structure and process that EPA can sustain reasonably. Therefore, the final rule retains the two-year cycle with the inflation adjustment between years one and two based on the CPI-U.

The Agency rejects the suggestion that an annual issuance of user fee schedules would be preferable and not burdensome to execute. A two-year cycle does not extend the cost accommodation and fee publication cycle significantly, and EPA believes that the improvements in stability for the user community and the reduced administrative burden under a two-year process outweigh any small improvement in precision that might result with an annual process. EPA expects program costs to be fairly stable from year-to-year, and capturing actual program costs and allocating costs to manifests in setting fee amounts thru the fee formula at two-year intervals will itself ensure fees are accurately recovering program costs to a high level of confidence. The inclusion of an inflation adjustment based on trends in the CPI-U will go even further in maintaining balance between program costs and fee amounts collected. EPA also believes that an annual fee cycle process would involve the agency in a nearly constant process of gathering cost and manifest data, consulting with the Advisory Board on each annual fee revision, and then publishing the annual fee schedule to the user community. 

Comment: Three commenters expressed concerns about applying the adjustment between the first and second year (Commenter Nos. 20, 22, 25). One of them cautioned that an inflation adjuster should not be applied on an annual basis because the objective of adjusting the fee biennially is to provide stability to users for budgeting and cost projection (Commenter No. 20). The commenter believes that applying the inflation adjuster every year will change the user fee between the first and second year, causing disruption without much benefit; rather, EPA should make the inflation adjustment as part of the biennial adjustment of user fees. Another commenter stated that inflation should not have much effect on the fees once the system is operational (Commenter No. 22). The commenter believes it is inappropriate to assume the need for more money to implement a system once it is established. The commenter suggested that justification and supporting documentation for all changes be provided to ensure any fee changes are the result of actual cost increases/decreases.

Response: EPA acknowledges the several comments expressing concerns about the operation of the inflation adjuster. In response to the comment suggesting that the inflation adjuster will act to change fees between years one and two and thereby cause disruption, the Agency disagrees. The inflation adjustment will be incorporated in the fee cycle published prior to the start of each two-year cycle. There will likely be a nominal increase in the published fees for the second year of the cycle, but the fee amounts for both years will be clearly stated and available in advance when the new schedule is published. Another commenter mentioned that inflation should not have much of an effect once the system is operational. That may be true if recent trends with very low inflation rates continue, and if so, users can expect fees to be adjusted only slightly for inflation. Nevertheless, inflationary trends over time may change, and should the rate of inflation increase in future years, the e-Manifest fee formula must be nimble enough to account for such cost increases over time, while being durable insofar as not requiring frequent changes to the formula. EPA believes that any fee adjustments resulting from inflation will be sufficiently documented by documenting the changes to the CPI-U that give rise to such fee adjustments, because inflationary costs are actual costs to the program.

6. 	Revenue Recovery Adjuster 

Comment: Two commenters expressed general agreement with the revenue adjusters for underestimated manifest usage and uncollectable fees (Commenter Nos. 3, 21). One of them suggested that EPA should use the actual cost for each type of manifest fee instead of an average fee (Commenter No. 3). Another commenter agreed that, as a self-funding program, the EPA needs to recover or reconcile costs and that a factor should be used as part of the fee determination method to help ensure the program runs smoothly (Commenter No. 21). The commenter suggested that, if requested by the regulated community, EPA should allow an external audit of the basis for the fee adjustments and apply the findings to the fee calculation method. The commenter also agrees that, while it makes sense to account for these unpaid fees through increases in manifest fees during the two-year review period to ensure the program runs smoothly, the EPA must pursue collection of these unpaid invoices using all means possible. Furthermore, any uncollected revenue later collected must be added back to the program and used to reduce future manifest costs. 

Response: With respect to the adjuster for inaccurate manifest usage estimates, EPA understands that the revenue imbalance could be more accurately captured were the cost of each manifest type used in the adjuster rather than an average of manifest fees. However, this adjuster will be most significant in the initial years of system operation, when the Agency does not have a base of experience for which to estimate how many of each type of manifest was expected versus received. Therefore, EPA decided to base the revenue recapture on an average per manifest fee for all manifests expected vs. all manifests received. As respects the comment suggesting an external audit of any fee adjustments, the Agency responds by noting that the e-Manifest Act already provides abundant oversight of fee related matters. The Act provides for an annual financial audit of the system, and it provides for consultation with the e-Manifest System Advisory Board (an advisory committee of stakeholders) on fee adjustments. 

Comment: Two commenters expressed support for the revenue adjuster for underestimated manifest usage (Commenter No. 12, 25). One of the commenters (state agency) stated its support for an adjustment for revenue recovery as needed; however, it believes that a two‐year cycle fee schedule revision cycle may be insufficient for the EPA to maintain the relatively very narrow legislatively‐authorized System Fund range (Commenter No. 12). The commenter has annually applied a parallel revenue recovery adjuster to its hazardous waste licensing fees, which are calculated by formulas not less complex than the proposed manifest fee calculation methods, and found it extremely helpful in correcting for necessarily imprecise estimations of future hazardous waste activity and also for adjustment for the undesirable but unavoidable incomplete collection of assessed fees each year. Given the ready availability of manifest submittal number and trend data to the EPA, the commenter believes that recalculation of the fee schedule on an annual basis instead of biennial would not be a burden on the EPA and, as long as the adjustment was maintained with published limits itself each year, a reasonable maximum adjustment could be planned for by manifest submitters.  The other commenter believes that the amount of the adjustment attributed to the manifest usage estimate corrections should be capped at a predetermined amount (Commenter No. 25). This cap is needed to assure that the administration of the e-Manifest system is accountable for controlling these costs to the extent that it is reasonable. 

Response: EPA appreciates the several comments supporting the revenue recapture adjusters, but suggesting caps or published limits on the amount of adjustments. Since federal policy on user fees requires full cost recovery, a cap on adjustments would likely result in some costs not being recovered fully. EPA will instead maintain accountability by implementing the final rule fee formula transparently, by submitting to the annual financial audits required by the Act, and by consulting with the Advisory Board on the system's finances and fee adjustments. For reasons stated above, the Agency is not persuaded that an annual fee cycle is preferred to the proposed two-year fee revision cycle. The final rule therefore retains the two-year cycle for issuing new fee schedules, after re-running the fee formula with the most recent program cost and manifest usage numbers.

Comment: Two commenters recommended that EPA use consistent terminology when referring to uncollectable fees and to avoid the use of "uncollectable manifests" (Commenter Nos. 6, 26).

Response: EPA acknowledges that the uncollectable fees and uncollectable manifests language could cause confusion. However, as EPA has dropped the proposed adjuster for uncollectable manifest fees from the final rule, it is not necessary to resolve this matter.

Comment: Seven commenters opposed an adjuster to account for uncollectable manifest fees (Commenter Nos. 6, 19, 20, 22, 24, 25, 26). They indicated that EPA's inability to collect fees should not impact the manifest fees for those facilities that do pay their manifest fees. One of the commenters stated that use of the fee payment sanctions and an adjustment for uncollectable fees amounts to double billing (Commenter No. 19). Two commenters believe the adjustment for uncollectable fees contradicts the language of Section 3024(c)(2)(A) of the Hazardous Waste Electronic Manifest Establishment Act, which states, "The Administrator shall collect the fees described in paragraph (1) from the users in advance or as reimbursement for, the provision by the Administrator of system-related services" (Commenter Nos. 20, 24). One of them stated that this section of the law explicitly directs EPA to collect fees for e-Manifest services from the user; therefore, EPA cannot pass delinquent payments on to those users who are paying for their usage of the system (Commenter No. 20). Rather, the commenter believes that EPA and the Treasury Department have legal means to collect from delinquent payers and EPA has proposed a number of measures that will enhance collection activities. The commenter believes EPA's suggested approach would create an incentive for system users to not pay since they know EPA will simply require those who do pay to cover the cost. 

Response: EPA acknowledges the receipt of many comments stating objections to the proposed adjuster for uncollectable manifest fees. These comments have persuaded the Agency to drop this proposed adjuster from the final rule, and instead address the matter of delinquent fee payments through the several sanctions included in the rule.

Comment:  We heard from one commenter noting that the proposed adjuster for uncollected manifest fees is calculated using an average fee per manifest; however, in this case, the costs being recovered will have been invoiced and documented via an accounting system, so the exact amounts should be available to EPA for this calculation and a calculated estimate should not be required (Commenter No. 22).

Response: EPA thanks the commenter for the suggestion. Since the Agency has decided to drop the adjuster for uncollectable manifest fees from the final rule, the matters discussed in the comment are moot.

7. 	Two-Year Fee Schedule Revision Cycle 

Comment: Four commenters expressed support for the two-year revision cycle (Commenter Nos. 20, 21, 22, 25). One of them noted that the two-year fee schedule revision should account for decreasing costs and allow for e-Manifest fees to decrease correspondingly (Commenter No. 22). The commenter does not believe a rulemaking process is needed for each revision. 

Response: EPA acknowledges the several comments expressing support for the proposed two-year revision cycle. EPA is persuaded that the two-year revision cycle is advantageous for the program, as it will provide users the stability of knowing their fee obligations over a definite two-year period, and will avoid the administrative costs (and perhaps higher fees) of a more frequent fee revision process. The two-year cycle is also consistent with OMB Circular A-25 policy on service fees, which generally calls for a biennial review of program fees. The commenter is correct that the two-year cycle will produce reduced fees corresponding to any reduction in program costs that may occur. In particular, the final rule's fee formula will produce a reduction in fees when the system development costs are recovered, which we proposed would occur after a five-year amortization period. The Agency agrees with the commenter who observed that a rulemaking process is not needed for each scheduled fee revision cycle, since the proposed fee methodology included a flexible and durable formula and adjusters that can be re-run with each new fee cycle simply by inserting the latest cost figures, manifest usage numbers, CPI-U trends, etc., to produce the new fee schedules. We are persuaded that this is far preferable to EPA and the user community than re-opening a rulemaking for each fee cycle, and we are retaining this approach in the final rule. 

Comment: One commenter asked why the fee period runs from June 1 to May 31 (Commenter No. 4). The commenter asked if it would be easier to run on either the Federal Fiscal Year (October 1 to September 30) or calendar year.

Response: EPA thanks the commenter for this helpful comment. Based on this comment and further consideration of the complexity that would result from trying to maintain the fees under various fiscal or calendar year periods, EPA has decided that the final rule should synchronize the user fee cycles with the Federal Fiscal Year. Therefore, after the initial year of system operations, the e-Manifest user fees will be determined so that each year's fee schedule will commence on October 1st and end the following September 30[th]. Because the system is expected to commence operations after June 30, 2018, the initial year only will include the three additional months of July through September 2018.

Comment: Two commenters asked EPA to clarify that the fee formula re-run may produce different fees for year one and year two of the proposed two-year cycle (Commenter Nos. 6, 26).

Response: The commenters are correct that the two-year fee schedules, when published, may show different fees for year two of the cycle than year one. This result is due to the effect of the inflation adjuster, which under the proposed approach we are finalizing in this rule, operates to recover inflationary impacts between the first and second year of each cycle. 

Comment: One commenter (state agency) stated that it does not support only a biennial adjustment of the manifest fee schedule (Commenter No. 12). The commenter believes that annual cost adjustment is a common practice in the business world and that the individual fee for each manifest is small enough that submitters of low numbers of manifests will not be significantly impacted and submitters of high numbers of manifests will likely have the planning and resources to readily expect the annual recalculation. Balanced against the EPA's stated concern for stability and avoidance of administrative burden is the reality of the relatively very narrow legislatively authorized System Fund range. The commenter believes that waiting for two years to adjust collected fees while the Fund may be collecting a disallowed surplus, or more critically, running a deficit that might imperil the operation and stability of the manifest system itself, is a factor that has been undercounted. For several decades, the commenter has implemented an annual fee calculation revision applicable to thousands of the state's hazardous waste generators each year and has found on the whole minimal resistance from those regulated parties to the actual annual fee changes. 

Response: The Agency acknowledges the commenter's concern that a biennial fee revision process may not be sufficiently responsive if a deficit develops, or may result in a surplus in the Fund beyond the narrow range of surplus permitted by the e-Manifest Act. The commenter raises valid points that are based on the commenter's similar experiences with a state hazardous waste fee program. However, EPA remains persuaded that a two-year revision cycle strikes a better balance between responsiveness to program cost changes and administrative burden. A one-year window of program operations and fee collection experience may not be sufficient to determine if the trend is toward surplus or deficit, and regardless, EPA will account annually for its collections and expenditures through the annual financial audit, and report to the Advisory Board on the program's finances and seek the Board's input on fees and necessary adjustments. Through these processes established under the Act, the Agency can deal with deficits and surpluses in an orderly manner through program and fee adjustments.

8. 	90-Day Lead Time for Fee Schedule Changes

Comment: Five commenters expressed support for the 90-day lead time (Commenter Nos. 6, 12, 19, 21, 26). One of the commenters suggested that a complementary email to all handlers would also be appropriate (Commenter No. 6). Another commenter stated that this length of time is sufficiently long to enable manifest submitters to plan for the changed costs and to adjust their budgets and fees charged to their generator clients accordingly while being short enough to not render the changes obsolete by the time they are implemented (Commenter No. 12). Two commenters stated that, in addition to posting any fee changes to their website, the Agency should provide notification using email or other options to the regulated community (Commenter Nos. 21, 26). One of them asked if a manifest event would be subject to the fee schedule in effect on the date of the initiation of the event or the closing out of the manifest by the receiving facility (Commenter No. 26).

Response: EPA agrees with the comments that the 90-day lead time should provide facilities and their customers with sufficient advance notice to enable them to prepare for the fee changes in their budgeting, while not being so long a lead time to make the changes stale or obsolete. Moreover, the Agency emphasizes that the final rule includes a two-year revision cycle, so the notice provided will be good for the entire two-year period covered by each fee cycle. EPA will also provide email notice to the user community, advising them promptly of the availability of the new fee schedule. Since the final rule states that the submission of the final manifest copy by the receiving facility to the system is the billable event, the fee schedule in effect on the date of submission by the receiving facility determines the fee that is applicable to that manifest.

Comment: Two commenters expressed concern that there would be no publication of the basis supporting adjustment, no opportunity for review and no requirement for EPA to receive comment on its revision unless EPA "significantly" alters its calculation methodology or the rate is affected by "significant" unanticipated program fees (Commenter Nos. 16, 23). They believe the Agency should provide a public notice and comment period for any fee adjustments to ensure it understands the impacts to its stakeholders. They state that EPA's Design Guide recognizes that transparency is necessary to ensure that the fees are set fairly and accurately and are being used in a manner consistent with the authorizing legislation. One of the commenters also cites OMB Circular A-25, which states, "The general policy is that user charges will be instituted through the promulgation of regulations" (Commenter No. 23).

Response: EPA acknowledges the two comments stating a preference for a new rulemaking with each fee revision. The Agency disagrees, and emphasizes that the development of the durable fee methodology in this final rule through a rulemaking process complies fully with the policy of the government to institute user fees through a rulemaking process. EPA will consult with the Advisory Board on fee revisions that occur subsequent to the issuance of this final rule, and that consultation with the advisory board, which includes public comment, will, along with the annual financial audits of the program, provide abundant oversight and transparency to the fee revision process.

Comment: Three commenters asked for a longer lead time for fee schedule changes (Commenter Nos. 20, 22, 25). Two commenters asked for a lead time of 120 days prior to the effective date of a new fee schedule (Commenter Nos. 20, 25). They state that the additional notice time is necessary so that TSDFs can notify customers and make appropriate changes to electronic and paper invoicing systems and will allow all system users sufficient time to plan for the revised fee schedule. Another commenter stated that a 90-day lead appears to be reasonable for relatively small fee increases (e.g., no more than 10% of the previous manifest fee); however, larger increases will have real-world impacts and should be provided at least 180 days prior to implementation (Commenter No. 22). The commenter stated that TSDF-generator contracts include pricing structures for the term of the contract, so a significant increase in e-Manifest fees part way through a contract will involve additional costs (beyond the fee increase) to the TSDF, such as negotiating a new pricing structure and revising contract terms prior to expiration of the contract, or absorbing the additional fee costs until the next scheduled contract revision. 

Response: EPA acknowledges the comments requesting a longer lead time for the issuance of new fee schedules. While EPA understands the advantages of a longer lead time, the challenge to EPA is striking a balance between providing adequate lead time for facilities to prepare and using cost figures and manifest usage numbers that are sufficiently current to be relevant to the fee determinations. As other commenters stated in their support for the 90-day lead time, the Agency is persuaded that a 90-day lead time strikes the right balance between these interests.

9. 	Stray and Extraneous Documents

Comment: Two commenters expressed general support for EPA's proposal to charge the TSDF who includes extraneous documents in their submissions an extra processing fee (Commenter Nos. 21, 26). One of them stated that this cost should be charged directly to the TSDF at the time of processing and not included as the part of the manifest fee or revenue cost recovery adjustment processes (Commenter No. 21). Another commenter stated that a fee premium should be charged for all stray and extraneous documents, except LDR related documents (Commenter No. 26). The commenter suggested that EPA explain its reasoning for its obligation to return the stray and extraneous documents. It also suggested that EPA should clarify what generators should do with LDR notifications or certification forms, or the e-Manifest rule should provide for a mechanism for this LDR notifications/certifications to be received by the TSDF by accompanying the e-Manifest. 

Response: EPA thanks the commenters for their comments addressing the proposed fee for processing and returning certain stray (non-manifest) documents that might be received at the system's paper processing center. EPA received many other comments objecting to EPA expending any effort processing such stray documents. EPA is persuaded by commenters that objected to EPA using processing center staff to processing stray documents, on the grounds that there should be no obligation to sort, return, or process stray documents in any manner other than discarding them. Therefore, EPA has decided to discard stray documents, so there is no need for EPA to impose a premium fee under the final rule for the processing or return of these documents. For the initial phase of e-Manifest implementation, EPA will not receive LDR notifications or certifications for processing, and any such LDR documents submitted to e-Manifest will be discarded as stray documents. The LDR notifications and certifications are intended to be a one-time notification to TSDFs, and not a recurring document that should accompany all shipments such as occurs with manifests. TSDFs should retain the LDR notifications and certifications among their files and not submit them to e-Manifest. EPA has not yet developed a means for LDR notifications to be submitted electronically, so they should continue to be prepared and transmitted with shipments as paper documents and retained by TSDFs on site.

Comment: Seven commenters expressed concern with EPA's proposed fee premiums for processing stray and extraneous documents (Commenter Nos. 6, 9, 12, 16, 20, 24, 25). Six of them suggest that stray and extraneous documents should be discarded (Commenter Nos. 6, 12, 16, 20, 24, 25). One of them (state agency) stated that its experience with document handling fees suggests that, of all fees assessed as part of the manifest system, it is these 'stray document' fees that would be the most likely to not be paid, compounding the problem (Commenter No. 12). The commenter added that simply ignoring the extraneous documents over the long term creates enough internal incentive in submitters to eventually stop. In addition, the commenter asks for EPA to consider how it should handle non‐manifest documents or information that are nonetheless mandatory, either in hardcopy manifest processing or electronic manifest creation (e.g., the additional information to be appended to manifests used for shipping PCBs under the TSCA Regulations). Another commenter states that, if the EPA's policy is to return stray and extraneous documents, then it agrees with charging a premium for this; however, this problem solves itself if paper submissions are not allowed (Commenter No. 9). Another commenter expressed concern with EPA's characterization of the referenced types of documents as either stray or extraneous (Commenter No. 24). The commenter stated that many of the examples mentioned, in particular the Land Disposal Restrictions Notice, may be a required supplemental document for an actual manifest transaction. The commenter stated that early stakeholder meetings for the E-Manifest program indicated that these manifest-related documents could either be accommodated within EPA's data repository or would be incorporated into a future deployment phase as a fully digital document. The commenter asked that this functionality be reconsidered for inclusion within the scope of the E-Manifest rule and that the e-Manifest system design include a robust document receipt/verification process, regardless of the document submission type. 

Response: EPA acknowledges the several thoughtful comments submitted in opposition to the proposal to process stray documents and impose a premium fee for them. As stated above, the Agency is persuaded by these comments that it is not necessary or appropriate to expend effort at the system's paper processing center on sorting, returning, or processing such stray documents. Therefore, for the final rule, EPA has decided to simply discard all such stray documents, and decided not to impose the proposed fee premium. Any incidental costs incurred in receiving and discarding such documents will be added to the system's operation and maintenance costs.

To implement this policy, EPA is taking the position that any document that is not itself a manifest will be discarded as a stray document. As stated above, the one-time requirement under the RCRA regulations for an LDR notification or certification to accompany a shipment does not cause such documents to become a manifest. TSDFs should retain any LDR notifications or certifications they receive with paper manifests on-site, and not submit them to the system with their final manifest copies. EPA disagrees with one commenter's suggestion that because LDR notifications are required (one time) to accompany a waste shipment to a TSDF, they become a supplement to the manifest. The LDR notices are distinct documents and are not a part of the manifest that documents the tracking of each and every off-site hazardous waste shipment. While EPA appreciates the point of view that the e-Manifest system should develop a means to receive all such documents digitally, that result must await a future expansion of the e-Manifest system. EPA's efforts now are focused on developing a national system as mandated by the Act for receiving paper and electronic manifests. 

EPA agrees with the comment that the magnitude of the stray document submission issue will be resolved when the system transitions away by 2021 from accepting paper manifests by mail from receiving facilities. 

Comment: Five commenters expressed support for EPA's proposal not to charge a fee premium for specified complex manifest transactions (e.g., split shipments) and/or Help Desk encounters (Commenter Nos. 9, 12, 20, 25, 26). One commenter expressed agreement that EPA should not charge a fee premium for rejected loads forwarded on the original manifest and clarify when use of the original manifest is allowable (Commenter No. 9). The commenter suggested that the e-Manifest system should have a validation rule to prevent inappropriate use of an electronic manifest and/or to flag paper or electronic submissions that feature this problem. Two commenters agree that Help Desk encounters should not be assessed a fee premium (Commenter Nos. 9, 12). Two commenters stated that it is not reasonable to assess premiums for complex manifest transactions such as rejections, discrepancies, split loads, and consolidated loads (Commenter Nos. 20, 25). The commenters believe these are not unusual transactions and, in fact, are a necessary part of the manifest system. Another commenter stated its agreement that splitting a load and rejecting a load or partial loads should not be a billable event (Commenter No. 26).

Response: EPA acknowledges the several comments expressing support for EPA's proposal not to charge fee premiums for help desk encounters or for particular, complex manifest transactions, such as for rejected loads forwarded on an original manifest, for split shipments, or for consolidated loads. While EPA has elected to not charge fee "premiums" in the final rule for such complex shipments, EPA emphasizes that for certain of these complex shipments (e.g., split loads, partial rejections), it is the nature of the tracking of these shipments to result in multiple manifests being produced and ultimately submitted to the system by the receiving facility. EPA notes that where multiple manifests result, each such manifest submitted to the system will be assessed the applicable per manifest fee. Thus, a load that is split into two smaller shipments, each tracked with its own manifest, will result in two manifest fees at the time of submission, not one. Likewise, a shipment that is partially accepted at a TSDF and partially rejected (and forwarded to another receiving facility) will result in two manifest fees, one for the shipment partially accepted by the first TSDF, and a second fee that will be charged when the second facility receives the shipment that the original TSDF rejected and forwarded to the second facility. Thus, while our final rule position does not adopt a "premium" or enhanced fee on account of shipment complexity, to the extent shipment complexity results in additional manifests being produced and submitted by receiving facilities, then additional fees will result. Rejections that are executed and forwarded to another facility on the original manifest (for certain immediate, full load rejections) will not result in additional fees, because there remains only one manifest to be submitted to the system by the ultimate receiving facility.

Comment: One commenter asked for clarification if the use of the e-Manifest system to submit tracking documentation for state-only wastes would ever be considered extraneous (Commenter No. 7). The commenter also asked if the use of the e-Manifest system to submit tracking documentation for waste generated by CESQGs, who are not required to manifest hazardous waste, would be considered extraneous. 

Response: EPA appreciates the comment requesting EPA clarification whether manifests used in connection with tracking state-only regulated wastes or manifests that states might require for waste shipments exempted from the manifest under federal regulations (e.g., CESQG wastes) would be considered extraneous or stray documents under the final rule's policy on the processing of stray documents. EPA emphasizes that the manifests that states require under state law for tracking state-only regulated wastes are not extraneous, but are in fact within the scope of coverage for the e-Manifest system that is mandated under the e-Manifest Act. Thus, EPA is developing the final rule and developing the e-Manifest system to receive and process these manifests to the same extent as manifests documenting shipments of RCRA wastes that require manifests under federal Subtitle C regulations. These manifests result from authorized states' broader program coverage, but they are clearly not extraneous from the standpoint of the operation of the e-Manifest system and our final regulation.

Comment: One commenter stated that, when a manifest is closed out and then "split" at a receiving facility, the resulting split shipments are generally destined for different receiving facilities (Commenter No. 22). The commenter requests confirmation that when a manifest is split at the receiving facility, only the manifest fee for the original shipment is charged to the original receiving facility. Any subsequent manifest fees for the "split" manifests should be charged to the subsequent receiving facilities.

Response: EPA thanks the commenter for their comment requesting clarification on how fees will be charged where there are split shipments. The commenter is correct that when a shipment is "split" at a receiving facility, that original receiving facility is only charged the manifest fee for the submission of the original manifest showing the receipt of the waste at that facility. When the shipment is then re-packaged and shipped or split among additional receiving facilities, those receiving facilities will be charged the per manifest fee when they submit their manifests to the system upon the receipt of the split loads.

Comment: Five commenters expressed concern about EPA's proposal to charge a fee for continuation sheets (Commenter Nos. 8, 9, 19, 20, 25). One commenter stated that a separate fee per continuation sheet seems appropriate for paper or scanned paper submittals because of the labor burden involved (e.g., keypunching), but not for manifests submitted via XML or fully electronic manifests, neither of which will impose data entry costs. Another commenter opposed a separate fee per continuation sheet because it could unfairly benefit larger corporations at the expense of small companies (Commenter No. 9). The commenter suggested that, as an alternative, EPA could consider charging a fee for continuation sheets that pose greater EPA QA/QC burden (e.g., continuation sheets with additional waste descriptions) but not ones that do not (e.g., continuation sheets that only list additional transporters). Two commenters opposed a separate fee for continuation sheets for all submittals except paper (Commenter Nos. 20, 25). The commenters do not see the cost justification for this approach.

Response: The Agency received numerous comments stating objections to the proposed fee for manifest continuation sheets. EPA proposed such a fee because of the concern that some continuation sheets might involve additional processing burdens for the system not unlike that for the cover manifest itself, e.g., a continuation sheet introducing numerous additional waste streams.

EPA agrees that the burden of continuation sheet processing is only a concern for paper mail submissions, which under the final rule, will be curtailed in three years when the system will no longer accept paper mail submissions. Moreover, EPA received several comments suggesting that most continuation sheets are not high burden documents, but typically introduce one additional transporter or a few additional waste streams to the manifest. More significantly, EPA is persuaded by commenters who pointed out the difficulty that charging a separate fee for continuation sheets would pose for the system, since the continuation sheets bear the same manifest number as the original manifest, and could not be tracked or billed uniquely in the system. For all these reasons, EPA is persuaded that it is not appropriate to charge a per manifest fee in the final rule for continuation sheets. While we agree with the goal of the commenter who suggested trying to charge only the continuation sheets with high QA/QC burdens, we do not believe it is practical to do so. Therefore, for the final rule, EPA is not imposing a separate fee for any continuation sheets. Instead, the costs of processing continuation sheets will be addressed in the system as operation and maintenance costs to be shared by all manifests.

Comment: One commenter expressed its concern about the possible impact of user fees on "milk runs" (Commenter No. 20). Milk runs involve situations where, for example, a small amount of waste is picked up at a store location, then the same waste type is collected at other store locations from the same company, and then all pickups are consolidated in a single drum. Each store location is a separate generator, each pickup requires a new manifest, and the single drum of consolidated waste would also require a new manifest. The commenter stated that as many as 10 or 20 store locations may be serviced by a milk run. The commenter does not believe that each manifest should result in a separate fee because the collective fees would exceed the disposal cost. The commenter urged EPA to clarify that the user fee would be charged only for the consolidated manifest and not for each individual manifest that contributes to a consolidated shipment. 

Response: EPA thanks the commenter for the comment requesting clarification of the fees that will be assessed in connection with the consolidated shipments known as milk runs. Currently, the federal manifest regulations for domestic shipments do not recognize a consolidated "milk run" manifest on which numerous generators' waste information is listed on one common manifest. Rather, EPA regulations require a separate manifest for each generator shipping a hazardous waste to a designated receiving facility. Our current regulations do allow such individual manifested shipments to be consolidated at a transfer facility, and in such cases, a consolidated manifest cover sheet presenting the aggregate waste information for the consolidated shipment is prepared, and the individual manifests from the various individual generators must be attached to the cover sheet, so that these manifests may be closed out with the individual generators. However, in such cases, the e-Manifest system must receive the individual generators' manifests so that the system can retain evidence that each manifest was closed out with the generators, and so that e-Manifest can distribute the final manifest copies to the generators' accounts in e-Manifest. Thus, e-Manifest will need to recover the processing cost for each of these manifests in order to accomplish cost recovery.

10. 	Paper Manifest Corrections 

Fee Premium for Corrections to Paper Manifest Submissions

Comment: Four commenters expressed general or qualified support for a fee premium for processing a correction to a paper manifest (Commenter Nos. 12, 21, 22, 24). One of the commenters stated that the fee should be assessed against the user responsible for the error and not included as the part of the manifest fee process or revenue cost recovery adjustment process (Commenter No. 21). Another commenter clarified that a fee premium for paper manifest corrections should be charged only for corrections to the electronic record; there should not be a charge for corrections required prior to creation of the electronic record (Commenter No. 22). If the fees are required, the commenter stated that they could be collected after the 90-day timeframe for corrections. Where multiple corrections to a manifest are requested by an agency, the commenter believes those multiple corrections should be handled as a single correction event, even if they are spaced out over time. Another commenter expressed agreement with EPA's proposal that correction fees, if assessed, should only apply to paper manifest corrections (Commenter No. 24). The commenter recommends that EPA provide greater detail on the QA/QC process for paper manifests. The commenter stated that this lack of a detailed description limits its ability to analyze the proposed process and fee structure fully.

Another commenter (state agency) expressed support for the concept of supplemental fees for manifest 'corrections', but in consideration of its QA/QC concerns, believes it will be difficult to calculate a fee appropriate to the amount of time or follow-up required by any particular manifest, particularly if such follow-up results in investigation or enforcement (Commenter No. 12). The commenter does not believe that manifest QA/QC can be easily separated from the basic fee modeling. The commenter discussed its experience collecting and processing manifest data for over 35 years. The commenter's experience is that a substantial minority of received hardcopy manifests presented issues during data extraction that required individualized review or follow-up prior to their data being able to be entered in a database. The collective follow-up costs for these manifests were a substantial portion of the overall manifest program administration cost. Pulling these quick corrections out of the manifest processing stream for billing would have entailed dramatically more cost than simply acknowledging and absorbing these costs into the overall program. Therefore, reliance only on a proposed supplementary fee for manifest corrections will either foreseeably result in a very high number of manifests 'pulled' for individual follow-up without separate fees, potentially clogging the system, causing backlogs, and rendering the system's reliability to generators and regulators alike useless, or mandate high numbers of fee premiums for hardcopy manifest users. While the latter could function as an unintentional but very effective motivator for movement to completely electronic manifesting, the commenter believes it also would likely simultaneously engender user resentment and fee disputes as was the case in its state. 

Response: The Agency acknowledges the numerous comments that expressed support for and against the imposition of a fee for processing data corrections. In response to the comment requesting clarification, the corrections involved here are not corrections made to manifests prior to their submission as final copies, but corrections made to the electronic data records in the e-Manifest system after the initial submission and processing of manifests. The comments identified several areas of complexity that would be encountered in collecting fees for data corrections to existing data records, including with when correction submissions would be assessed fees, how the system would deal with multiple corrections, how an appropriate fee would be determined for the time and effort that corrections and QA/QC might entail, and whether the imposition of a fee will produce user resentment, fee disputes, or, discourage data quality. For the final rule, EPA is persuaded that the system should not charge a separate fee for data corrections. EPA finds it persuasive that a per transaction fee would be difficult to establish, since the time and effort of processing corrections can vary considerably. EPA is also persuaded that since the correction process as modified for the final rule is an iterative and open process that would invite multiple, sequential corrections from parties other than receiving facilities, that it is not practical to impose a fee for each such correction or to collect fees from all the persons who might initiate a correction to a record. Therefore, the Agency has decided not to impose a specific fee for data correction submissions, and will instead deal with the effort and costs of supporting corrections as an operations and maintenance cost to be shared by all manifests. 

Comment: Five commenters expressed concern about the proposed fee premiums for EPA's processing of corrections to paper manifests, e.g., because the fee premium might discourage users from making necessary corrections (Commenter No. 9, 19, 20, 25, 26). One of these commenters stated that the costs associated with developing and maintaining the infrastructure for corrections should be included in the general system costs and distributed across the initial submission fees for all manifests (Commenter No. 9). Two of these commenters suggested that users may need some time to adjust to the new submittal process and may inadvertently input some incorrect information on their submittal; therefore, they recommend that EPA establish a reasonable time period in which to notify, either by phone or e-mail, the submitter of the error and the need to re-submit the information (Commenter Nos. 20, 25). If, following a notification by the Agency, the situation continues, then the Agency should consider assessing a fee premium. 

Response: EPA received numerous comments suggesting that the proposed transactional fee for data corrections would discourage data corrections for fee avoidance, and thereby result in the denigration of data quality in the system. EPA is persuaded that these comments raise a valid point, and that the possible disincentive for data quality resulting from the proposed fee is another sound reason to reject the proposed rule's data correction fee. As suggested by the one commenter, EPA agrees that the costs of supporting the data corrections process should be included in general system operating costs and shared by all manifests in calculating the system's per manifest fees. Since data correction fees will not be included in the final rule, the suggestions that EPA afford users some time to adjust to the submittal process, or to advise submitters to re-submit information before imposing a correction fee, are moot.

Comment: Two commenters noted that EPA's paper manifest processing center could generate keypunch errors in transcribing information from a paper manifest form (Commenter Nos. 6, 26). They asked if mechanisms will be provided for a generator, transporter, or TSD to correct this keypunch error. One of them stated that users should not be assessed a fee for these corrections (Commenter No. 26).

Response: Since a data corrections fee will not be imposed on submitters under the final rule, it is not necessary to differentiate for any fee purpose between errors made by users in their submittals or keypunch errors made by EPA's paper processing center. Under the open corrections process, users monitoring manifest records in the system should be able to spot any keypunch errors affecting their records and submit a correction to correct any such errors.

Comment: One commenter suggested that, for corrections of paper manifest submissions, an hourly rate should be defined and then an actual cost should be billed to the entity submitting the paper form (Commenter No. 3). For example, if the hourly rate for the EPA personnel is determined to be $100.00 per hour and it took the EPA staff 6 minutes to resolve/correct the manifest, the resulting fee would be 0.1hr (6 minutes/60 minutes in an hour) x $100.00 = $10.00. 

Response: EPA appreciates the comment suggesting that an hourly rate for corrections be established so that those submitting corrections could be billed for the actual cost of processing their corrections. Since EPA has decided not to impose a transactional fee for data corrections, the suggested improvement to the fee calculation is moot.

Comment: One commenter asked for clarification on whether corrections would be accepted after the 90-day period for manifest data corrections and if there would be fee premiums or violations (Commenter No. 7).

Response: EPA received many comments objecting to the proposed 90-day window for making manifest data record corrections. Numerous commenters supported a more open process without time restrictions on data corrections, and EPA is persuaded to adopt a corrections process without the proposed 90-day restriction on submissions. EPA will therefore accept corrections after 90 days, and as explained above, there will be no fee imposed for data corrections under the final rule.

EPA's QA/QC Process

Comment: One commenter stating that there seems to be two different "paper manifest correction processes" (Commenter No. 6). The first process, done prior to keypunch, is the work required to process corrections to paper submissions. This work is presumed to be completed upon receipt of the paper manifest and may include crossing out nonhazardous wastes, entering missing data elements, correcting signature dates, and fixing legibility issues. The second process is the work required to process corrections after the creation of a data record, such as the addition of a waste code or correction of a quantity, maybe submitted a week later. The commenter recommends that these two processes be clarified as distinct and separate. 

Response: The commenter is correct that the data records correction process that was discussed in the proposed rule is distinct from the process of making corrections to a manifest while the shipment is in transportation or when presented to the receiving facility for verification and signature, or when the receiving facility makes any other pre-submission changes to the final manifest copy. Pre-submission corrections to the manifest are assumed to be a typical part of the use of the manifest by waste handlers to track and account for accurately the wastes that are placed in transportation and verified as received by the receiving facility. The data corrections process discussed in the fee rule is instead for the making of corrections to the data records that are produced when manifest copies are initially submitted to the system and processed by the paper processing center through the normal keypunch and QA/QC processes used to create the initial data record in the system. The data corrections process is intended to correct data errors present in these initial data records and in subsequently corrected data records. The final rule makes clear that these two processes are distinct and separate.

Comment: One commenter (state agency) expressed concern that EPA has underestimated the types of manifest data corrections that will be needed (Commenter No. 12). The commenter noted that EPA does discuss the 'manifest errors' it expects to address; however, the errors identified focus almost wholly on illegible handwriting. The commenter stated that its considerable experience indicates that errors were far more diverse and often significant than handwriting. The commenter discussed the additional types of errors that it has confronted and expressed concern that EPA's proposed QA/QC approach would not address these additional errors and leaves them for the states to resolve, which would be problematic in regard to implementation and funding. In particular, the commenter states that EPA intends to address certain types of problems (i.e., issues caused by failure of the manifest user to properly complete the form or to submit a legible copy) and intends for states to perform subsequent, separate 'state-specific' QA/QC on the remaining problems (i.e., issues where information on a submitted manifest conflicts with the corresponding information held in the regulator's database) after EPA has processed the manifest. The commenter believes this approach does not consider several significant obstacles to operation of the hardcopy manifest data extraction system or the funding fee methodology as proposed, including:

 Many of the issues identified by the commenter preclude entry of the manifest data into the national database until the issue is resolved.

 The EPA's reliance on states for anything more than simple legibility QA/QC is not stated in this proposal to be funded with any diversion of collected federal manifest fees to the states performing that QA/QC work.

 The EPA's proposed transfer of manifest data QA/QC assumes that all states have data resources sufficient to this task, including a comprehensive database of all hazardous waste generators, or at least all those that may manifest hazardous waste shipments, and the experienced staff to resolve these data issues. This assumption is not accurate.

 Regardless of who performs the actual QA/QC on manifest data/database issues, many of these problems are best resolved through direct compliance intervention at the state rather than the federal level, either advisory or often enforcement-appropriate.

The commenter asked EPA for clarification on how the Agency will resolve the problem of non-standardized, potentially non-unique Identification Numbers issued by many states. The commenter stated its belief that there is the potential for sites in different states to carry duplicate Identification Numbers. If EPA is expecting to use the EPA Identification Number of a site as the primary identifier for a site in the enhanced RCRIS/RCRAInfo database, this problem must be resolved.

The commenter also asked for clarification on how EPA intends to resolve the problem of necessarily non-unique generic identifiers. In particular, since neither the federal nor many state regulations require CESQGs to obtain an EPA Identification Number prior to manifesting shipments of hazardous waste, there does not appear to be a method to uniquely identify such sites either when generators/transporters are creating an electronic manifest or when EPA is processing a hardcopy manifest. Without a primary identifier, a high potential exists for duplication, inaccurate manual entry, or incorrect site selection when creating electronic manifests, and for the same problems retroactively when processing hardcopy manifests. A similar problem pertains to the federal Toxic Substances Control Act (TSCA) regulations for PCB transport, which require use of the Uniform Hazardous Waste Manifest, but currently explicitly allow certain PCB waste generators (those that do not operate a Permanent PCB Storage Area) to use the generic identifier '40CFRPART761' in Item 1 on the manifest.

The commenter cautioned EPA that unassigned EPA Identification Numbers is the most common source of fatal manifest errors observed in its state. Identifying and capturing errors regarding unassigned EPA Identification Numbers, however, can be crucial to proper oversight of hazardous waste generators and operation of a hazardous waste database, since correctly identifying the generator of a waste is a foundational element of the entire hazardous waste regulatory program.

The commenter stated that a potential data/database issue occurs when the generator name in Item 5 does not match the name contained in the database, but the actual generator has not changed; this is caused when businesses operate or ship waste under a legally altered name or as a 'Doing Business As', where the actual company name varies considerably from the 'public name'. The commenter asked for clarification on how EPA intends to addresses these complexities (e.g., how to correlate the generator names on received hardcopy manifests with names in its database that do not match). 

Response: While EPA acknowledges the several data quality related comments from the state commenter, the Agency emphasizes that these comments are not related to the user fee related issues for which EPA sought comment during this rulemaking. Rather, the data quality and QA/QC issues presented in this comment are issues that must be resolved in the implementation of the e-Manifest IT system, including the user registration process and the operation of the paper processing center, and not through this rulemaking. EPA acknowledges that the implementation of e-Manifest will pose significant data quality challenges beyond the legibility of manifests. EPA is focused particularly on identifying the additional, non-traditional RCRA receiving facilities that will be brought into e-Manifest, and we are working closely with our Regional and authorized state officials to develop effective strategies for identifying these facilities and issuing unique IDs to these facilities so that they may be tracked and billed uniquely. The commenter is also a current member of the e-Manifest System Advisory Board, and is aware that EPA conducted an Advisory Board meeting in September 2017 that was heavily focused on these and similar issues related to user registration and implementation areas.
The Agency will work to resolve the issues identified in this comment through its outreach efforts with the EPA Regions, our authorized states, and the user community.

11. 	Incentivize Electronic Manifest Use 

Comment: Four commenters expressed support for EPA's proposal to rely on the fee formula itself to incentivize electronic manifest use and not to include a distinct monetary penalty to discourage paper manifest use (Commenter Nos. 6, 12, 20, 25). These commenters generally believe that the proposed fee methodology will discourage paper manifest use sufficiently. 

Response: EPA acknowledges receiving several comments supporting the EPA proposal to rely on the operation of the fee formula rather than a distinct paper manifest use penalty to incentivize electronic manifests. The fee formula relies on the differential marginal labor cost of processing each type of manifest into the system. Since the manual processing steps for paper manifests received in the mail are by their nature much more costly than the more automated processing of other manifest types, the fee formula will result in much higher fees for mailed paper manifests than for other types of manifest submissions. Thus, the higher per manifest fee for paper mail submissions appears to be a sufficient incentive for electronic manifest use, without imposing any additional monetary penalty. The final rule retains this approach in the differential fee formula. 

12. 	Payment Options 

Comment: Six commenters expressed support for the monthly billing approach (Commenter Nos. 16, 19, 20, 22, 25, 26). One of these commenters suggested that EPA can allow, as an alternative option, payment of an advance annual fee for projected manifest usage with reconciliation at year-end (Commenter No. 20). Under the proposed monthly invoice approach, TSDFs will be able to more accurately make payments based on their actual use of the system. Annual prepayments, on the other hand, could pose several drawbacks (e.g., TSDF uncertainty over manifest usage during the year) but should be retained as an option which may gain greater participation after TSDFs have a few years of experience with the e-Manifest system. 

Response: EPA acknowledges the numerous comments from waste industry representatives advocating the monthly billing approach to invoicing and collecting fees based on each facility's prior month's usage of manifests. EPA agrees with the thrust of these comments that a monthly invoicing and collection approach will result in fees being assessed more precisely than would be possible under the proposed advance payment method, which would rely on estimates of manifest usage developed in the prior year. For the final rule, EPA is announcing that it plans to implement the monthly invoicing option as the approach to billing receiving facilities and collecting electronic payments from them. 

Comment: One commenter supported allowing users a differential fee reflecting the different administrative costs of processing payments under the two approaches (Commenter No. 21). This way TSDFs can choose the option that makes the most sense for them.

Response: The commenter raises an interesting suggestion that the fees imposed on users might differentiate based on the method of payment utilized. This would be a workable option if we could develop modeling showing, for example, that the reduced invoicing burden under the advance payment option would reduce overall operating costs significantly enough to warrant a fee reduction for the advance payment method. We do not currently have the modeling or data on hand to support a differential fee based on payment method used. For the final rule, we will retain the proposed rule's differential fees based on the different labor costs of processing manifests types, as we believe that these differences contribute most significantly to system costs. 

Comment: One commenter expressed support for multiple fee payment options, including the pre-payment of fees and/or authorized standardized automatic withdrawals using electronic funds transfer (Commenter No. 12). The commenter believes these options would be the most stable for the manifest system and incur the lowest cost to EPA.  The commenter believes that the large majority of transporters/TSDFs can readily use either of these approaches, though for opportunity cost reasons, many payors would prefer automatic withdrawal. The commenter also supports use of pay.gov because it is established and reliable. The commenter encourages EPA to focus on the prepayment and authorized standardized automatic withdrawal options and use both, or, if such is unfeasible, to use the authorized standardized automatic withdrawal approach. The commenter also believes EPA must develop and use one‐time invoices for small‐number submitters.

Response: EPA appreciates the comment from this state regulator suggesting EPA support multiple fee payment options, and that the Agency focus more on the prepayment with automatic withdrawal features, which the commenter believes would be the lower cost approach for both EPA and the majority of industry members. As EPA developed the fee rule, we discovered that we could only provide automatic withdrawals of recurring, fixed amounts each month, and this forced EPA to consider an advance payment approach relying on estimates of manifest activity. This proved to be objectionable to the regulated community, and we abandoned it for the final rule.

Comment: One commenter (state) indicated that it imposes a monthly fee that is paid by offsite receiving facilities who treat or dispose of hazardous waste (Commenter No. 18). The commenter stated that the per ton fee is based on the amount of hazardous waste managed by each respective facility in that month. The commenter anticipates that receiving facilities that currently pay fees would have no difficulty adapting to a monthly billing cycle for manifests received in the previous month. However, the commenter believes that facilities that do not pay fees (e.g., facilities using exempt management units) would need to adjust their accounting operations to accommodate paying the manifest fee.

Response: EPA acknowledges this comment. We agree that most receiving facilities will not have difficulty accommodating a monthly invoicing and payment cycle, but that there are some facilities (e.g., non-RCRA receiving facilities regulated by states) who have less familiarity in the past with fee payments (or with RCRA regulations generally) who may require more outreach and compliance assistance type activities to bring them fully up to speed on the final rule's fee requirements and payment methods. This will admittedly present implementation challenges for EPA and our authorized state partners.

Comment: One commenter asked how EPA would prevent a TSDF from significantly underestimating their projected manifest usage for a year, maybe intentionally, and then paying a huge balance at the end of the year, if EPA were to require TSDFs to estimate their manifest usage as part of their fee calculation (Commenter No. 6). 

Response: EPA understands the commenter has concerns that a user under the advance payment option might "game" the option by underestimating its manifest usage so as to pay reduced fees over the bulk of the year, only to be liable at the end of the year for a huge balance when estimates meet the reality of usage. EPA cannot exclude this possibility, but we question how it would behoove such a user to game the system in this manner, and then to be on the hook for a huge reconciliation payment at the end of the year. We believe that most facilities financial offices would much prefer a smoother, predictable schedule of payments, and that this will deter employees of these companies from deliberately gaming the estimates in the manner suggested by the commenter. In any event, EPA is not finalizing the advance monthly payment option in the final rule.

Comment: Two commenters noted that the term "manifest ID number" should be replaced with "manifest tracking number" (Commenter Nos. 6 and 26). 

Response: The commenter is correct that the term manifest ID number is confusing, and should be replaced with the more accurate term "manifest tracking number." EPA will adopt this terminology consistently in the final rule.

13. 	Fee Dispute Resolution 

Comment: Five commenters expressed general support for the informal fee dispute resolution process (Commenter Nos. 12, 20, 21, 25, 26). One of these commenters (state agency) cautioned EPA based on its own experience with fee regulations that such an approach is potentially unrealistic and will likely not be followed by a substantial number of fee disputers (Commenter No. 12). The commenter's experience is that it is difficult to compel disputing parties to pay. The commenter recommends that EPA establish in regulation a formal fee dispute process to demonstrate clear due process for fee disputes. Another commenter expressed general support for the dispute process but is concerned about the appeals process because final authority rests with EPA (Commenter No. 20). The commenter believes it is unfair for one party to be entitled to make a final decision without review by an independent third party. The commenter stated that a better solution is to allow the Director's decision to be subject to the Alternative Dispute Resolution (ADR) program administered by the Environmental Appeals Board. Although the commenter believes TSDFs will find that the amount of any disputed fee is large enough to justify incurring the legal and administrative costs of participating in an ADR process, the availability of this relief will lend legitimacy to the fee collection process. 

Response: EPA appreciates the several comments addressing the fee dispute resolution process. We note that numerous commenters supported the informal fee dispute resolution process, and we are persuaded that an informal process carries administrative burdens and processes that scale better to the issues that fee disputes are likely to present. While EPA understands the comments suggesting advantages to a more formal dispute resolution process (such as the ADR program of the Environmental Appeals Board) or advantages to an independent third party conducting appeals, EPA believes that such enhanced processes would greatly extend the timeframe for decisions and the administrative costs of the proceedings, relative to the fairly simple arithmetic issues that e-Manifest bills will likely present for resolution. EPA also rejects the suggestion that the party responsible for appeal decisions  -  the Office Director for ORCR  -  will not be unbiased in reviewing and deciding finally claims for adjustments to invoices.

14. 	Financial Sanctions
 
Comment: Six commenters expressed general support for the proposal to incorporate the financial interest and penalty charges as the first and second tier of e-Manifest fee payment sanctions (Commenter Nos. 3, 12, 20, 21, 24, 26). One commenter suggested that, to ensure that every user understands the costs associated with using the system, EPA should place on its website and in other agency public sources a list of possible sanctions the Agency can enforce for non-payment under the federal claims collection statutes (Commenter No. 20). Another commenter stated that it supports only financial sanctions processes that are similar to those conducted in typical commercial business settings; accordingly, the commenter supports EPA's proposal of a 6% penalty charge and a delinquent claim processing fee (Commenter No. 24).

Response: EPA thanks the six commenters for their comments of support for the proposed rule's financial sanctions. EPA will consider the suggestion of the commenter that information on sanctions for non-payment be posted on the program's website and on other sources, so that all will understand the full costs of using the system and the consequences possible for non-payment. EPA acknowledges the comment suggesting support only for financial sanctions like those that occur in commercial settings, and we believe the financial sanctions under the federal claims collection statutes are of that nature.

Comment: Three commenters expressed concern about the 30-day timeframe for payment and initiation of sanctions (Comment Nos. 16, 20, 25). Two commenters urged EPA to reconsider the 30-day due date and use the more commonly used 45-day payment schedule (Commenter Nos. 16 and 20). One of them noted that it and many other companies operate their invoice payment system on a 45-day schedule (Commenter No. 16). The other stated that, despite its general support for Tiers 1 and 2, larger TSDFs will receive monthly invoices for over 1,000 manifest transactions (Commenter No. 20). The commenter believes that a period longer than 30 days is needed for the TSDF to review and process a monthly invoice through its accounts payable department. Another commenter recommended that financial interest and penalty charges for non-payers be initiated after 60 days of non-payment (Commenter No. 25). The commenter suggested that, at 60 days, EPA could initiate interest penalties and, at 90 days, additional financial penalties.

Response: While we thank the commenters for their suggestion that EPA adopt a 45-day payment schedule instead of the proposed rule's requirement for payment within 30 days of the invoice, we are not persuaded to adopt this extended time for payments. Everyday experience informs us that a 30-day schedule for payments is fairly typical in the commercial domain. In addition, EPA is quite concerned that invoices posted after 30 days of services, and requiring payment within 30 days of the invoice, already introduce a lag of 60 days between provision of services and receipt of payments. Particularly in the initial year of system operations, non-timely payments could undermine EPA's ability to make timely payments to its system vendors. The suggested 45-day payment cycle would only exacerbate this concern. For the final rule, EPA is retaining the proposed rule's requirement for payment to be submitted within 30 days of receipt of the date of the invoices.

Comment: Two commenters asked EPA to clearly state that generators will not be held liable due to inaction of the TSDF in complying with the manifest completion requirement at 40 CFR 264.1315(d) (Commenter Nos. 17, 21). One commenter suggested that EPA modify 40 CFR 262.24, Use of Electronic Manifest, to add, "(a)(5) No generator may be held liable for manifests deemed incomplete under 40 CFR 264.1315(d) due to circumstances for which the generator has no control, such as non-payment of fees by the TSDF" (Commenter No. 17). 

Response: EPA understands that the use of the incomplete manifest terminology in the proposed rule in connection with unpaid manifests has produced confusion. EPA has accepted these comments by altering the language of the final regulation so that unpaid manifests are addressed as unperfected manifests rather than as incomplete manifests. We made this change to avoid any suggestion that non-payment of a manifest fee by a receiving facility implied that a manifest was not "completed" in the sense that term is usually understood to mean filled out and signed by the generator. Manifest completion by generators is independent of the facility's liability for payment of fees, and we believe the change in the final rule will resolve this confusion. The status of a facility's payment for a manifest has no bearing at all on whether a generator complied with the requirement to supply a manifest for tracking its hazardous waste shipments off-site to facilities.

Comment: One commenter expressed concern for the overall system of proposed sanctions for non-payment because it seems overreaching (Commenter No. 22). The commenter stated that 40 CFR part 13 provides all of the requirements needed to meet the Hazardous Waste Electronic Manifest Establishment Act as well as federal user fee guidance documents cited in the preamble. The commenter believes that additional procedures and sanctions are duplicative and unnecessary.

Response: EPA appreciates the comment suggesting that the proposed set of fee sanctions seems too severe and that the financial sanctions of the federal claims collection statutes should be adequate. EPA has largely accepted this comment by reducing the sanctions authorized by the final rule. For the final rule, we are retaining only the financial sanctions (which the commenter supports) and the additional sanction of a RCRA civil enforcement order to compel payment or impose a civil penalty. There was significant support in the comments overall for retaining the civil enforcement order sanction, which EPA would retain as an additional tool for delinquent payers who do not respond to the imposition alone of financial penalties.

15. 	Delinquent Payors List 

Comment: Six commenters expressed opposition or concerns about the inclusion of a Delinquent Payors List among the sanctions that would be available to the Agency (Commenter Nos. 9, 12, 20, 21, 24, 25). These commenters doubt the effectiveness of the sanction as an inducement for TSDFs to make payment. Two of the commenters suggest that, as an alternative, EPA initiate notices of violation under RCRA if a TSDF is severely delinquent with its payments for non-compliance with the e-Manifest regulations (Commenter Nos. 20, 25).

Response: EPA received numerous comments objecting to the proposed Delinquent Payors List, either because it was not likely to be effective, or because it was unorthodox for a regulatory agency to pursue this. After considering all these comments, EPA is persuaded that the proposed Delinquent Payors List is problematic to implement, and should not be retained in the final rule. EPA also accepts the comment suggesting a notice of violation (civil/administrative enforcement remedy) instead be issued in appropriate cases, although the final rule does not impose any conditions on what cases are sufficiently delinquent to warrant an enforcement remedy. The final rule will rely on the financial sanctions and civil enforcement remedy for fee rule enforcement sanctions.

Comment: One commenter expressed support for the inclusion of a Delinquent Payors List (Commenter No. 26). 

Response: We thank the commenter for their support for the Delinquent Payors List sanction. However, as discussed above, many commenters provided objections to this sanction, and EPA is persuaded not to retain the Delinquent Payors List in the final rule.

16. 	Denial of Service Sanction

Comment: Ten commenters expressed opposition or concern about the denial of service sanction (Commenter Nos. 3, 6, 9, 12, 20, 21, 22, 24, 25, 26). These commenters generally believe the sanction would be disruptive and detrimental to TSDFs and other waste handlers as well as counter-productive to EPA's goals because it would prevent TSDFs from remaining economically viable and submitting forms. They also question the feasibility/implementability of the sanction. One commenter stated that the payment system could have glitches that could falsely state a user is delinquent when in fact they are not (Commenter No. 21). Another commenter acknowledged the denial of service that prevents the initiation of a new manifest may be appropriate, but stated there would be several limitations when implementing it (Commenter No. 24). Two of the commenters suggest that, rather than deny a TSDF use of the services, EPA should pursue suspension of the TSDF's permit authorization (Commenter No. 20, 25).

Response: EPA acknowledges the numerous comments stating objections to the proposed denial of services sanction. We proposed such a sanction under the belief that if a user avails itself of services from e-Manifest and does not see fit to pay for those services, there comes a time to deny that user access to the system so as to avoid additional arrearages accruing. Commenters argued that the proposed sanction seemed to severe and could jeopardize the user being able to continue to service its customers, which would be unfair in a case where the facility has a legitimate dispute about its bill. Others suggested that the facility ignoring fee obligations would simply continue to use paper manifests and not submit them to the system, denying EPA, states and other stakeholders the access to the data from those manifests. On further consideration of these comments and implementation concerns, EPA has decided to not include a denial of services sanction in the final rule. Instead, we will place reliance on the financial sanctions and civil enforcement sanction to enforce compliance with the final rule's fee obligations. While we appreciate the commenter's suggestion advocating a permit suspension, such a measure would invite some of the same concerns (e.g., disruption of business) as denial of services. Also, since most RCRA permits are issued by our authorized states, the pursuit of permit sanctions would involve our authorized state officials in a sense becoming collection agents for EPA. 

Comment: One commenter stated that, if a facility is delinquent in payments or there are otherwise concerns regarding their continued viability, intervention needs to occur before business viability is an issue (Commenter No. 18). If the facility has not paid at 120 days and the U.S. EPA fails to get a response from the facility, the Agency should confer with the state or region that is authorized for the program and discuss the status of the facility. The state or region may already be aware of a problem but, if not, then they can inspect the facility to investigate the situation further. The commenter suggests that EPA should routinely monitor for a lack of manifest submissions from users and use that as a method to monitor a facility regarding their activities and contact the facility if necessary. 

Response: EPA appreciates the comment suggesting how EPA could monitor situations with significantly delinquent payments and intervene by conferring with the state on the status and viability of the facility. These are all helpful suggestions, although they do not seem tied to the proposed rule's sanctions. We will consider such collaborative approaches to monitoring facilities that are delinquent, but this does not necessitate any changes in the final rule.

17. 	Suspension of Facility Authorization 

Comment: Six commenters expressed support for the possible authorization sanctions on facilities that are delinquent on e-Manifest payments (Commenter Nos. 3, 9, 12, 20, 25, 26). One of the commenters stated that EPA should have the specific authority to disallow a facility from being a designated facility for egregious e-Manifest system violations, such as non-payment for 180 days (Commenter No. 9). The commenter suggested that, when a facility's authorization is suspended, the system should issue an error message and prevent generators and transporters from entering the facility onto the e-Manifest. Another commenter explained the suspension rationale to be that a designated facility's chronic and substantive non‐payment of manifest fees would preclude the further processing of the non‐payor's submitted manifests and therefore prevent completion of the manifest and inclusion of the final copy of record (Commenter No. 12). While this approach would require amendment of the hazardous waste manifest requirements for designated facilities to render completion of the final manifest as a condition for receiving hazardous waste shipments, the commenter believes this step falls within EPA's authority and would not constitute any burden on any designated facilities that pay their fees timely. Two commenters support this sanction as a last resort, provided the agency has exhausted all other penalties and sanctions in the proposal (Commenter Nos. 20, 25). They suggest, as an alternative, that EPA could mandate that chronic non-payers be moved to a prepayment plan or be required to post a collateral bond to assure adequate funds are available to cover their e-Manifest fees. Another commenter suggested that timely payment of monthly e-Manifest fees should be required under the terms of the TSDF's permit and associated TSDF operating requirements of 40 CFR part 264 (Commenter No. 26).

Response: EPA appreciates the several comments suggesting support for sanctions affecting a facility's permit or authorization to receive and manage hazardous wastes. After considering all comments on the proposed sanctions, EPA has concluded that permit or other sanctions limiting a facility's authorization to receive and manage hazardous wastes are more disruptive than needed to enforce fee payments. Also, permit sanctions would likely require action by our authorized states, and EPA does not intend to involve state officials in fee collection activities on EPA's behalf. Therefore, EPA is not including suspension of facility authorization or permit sanctions among the final fee rule's sanctions. Instead, we will rely on the financial sanctions and the civil enforcement sanction to enforce e-Manifest fee obligations.

Comment: Three commenters expressed general opposition or concerns about the possible authorization sanction (Commenter Nos. 21, 22, 24). One commenter expressed opposition but suggested that the term "exceedingly" should be defined as exceeding 4 payment cycles without payment (Commenter No. 21). Another commenter stated that, in most cases of delinquent payments, withdrawal or suspension of EPA Identification Numbers seems overly harsh (Commenter No. 22). The commenter believes such steps add complexity to the system in that there will need to be a list of withdrawn and suspended numbers. The commenter believes that, after a prolonged status of non-payment or high frequency of non-payment, enforcement is both necessary and reasonable. Another commenter stated that, to the best of its knowledge, there is no precedent for this process within other EPA management programs (Commenter No. 24). The commenter believes that an enforcement step against a TSDF of this magnitude is typically reserved for egregious violations, environmental damage, or negligence. 

Response: As discussed above, EPA agrees with the thrust of these commenters' objections to the permit sanctions or to sanction involving suspension of a facility's authorization to manage waste. The proposed sanctions could be too severe and disruptive to these businesses that may have legitimate issues with their invoices, and the implementation of permit or authority to operate sanctions may not be practical. For the final rule, therefore, EPA will rely upon the financial sanctions and the civil enforcement sanction for enforcement of e-Manifest fee obligations.

18. 	Changing Transporters en Route

Comment: Nine commenters expressed general support for EPA's proposal to modify its current regulations to allow transporter changes to shipment routing on the manifest when generator authority is granted (Commenter Nos. 6, 9, 12, 16, 20, 21, 22, 25, 26). One of these commenters (state agency) asked for clarification on how state inspectors can verify that the generator has in fact provided agency authority to a transporter (Commenter No. 6). The commenter also asked which entity (generator or transporter) must retain the contract granting such authority. Another commenter (state agency) referenced the state's case investigations and enforcement regarding transporter changes to transporters on the manifest, which effectively allowed transporters in its state to amend the manifest to revise the transporters to be used to transport the hazardous waste shipment; therefore, the commenter does not oppose EPA's proposal (Commenter No 12). The commenter supports EPA's clarification that this change does not allow transporters to revise the Designated Facility listed on the manifest.

Response: EPA thanks the several commenters for their comments supporting the proposed changes to 40 CFR 263.21 that would allow certain transporter changes to be made on the manifest pursuant to authority granted by generators. In response to these comments, EPA has clarified that a statement that must appear in Item 14 of the manifest to show that the generator has conferred the necessary agency authority on the initial transporter to add or substitute a transporter on the generator's behalf. The Agency has further specified that the contract that confers this authority must be retained at the generator site for inspection. Thus, state inspectors can examine the generator's records to verify that the agency authority recited in Item 14 in fact was granted to a transporter by a generator. EPA emphasizes also that this authority extends only to changing or adding a transporter to the manifest; it does not extend to changes to the designated facility designated by the generator.

Comment: Six commenters offered suggestions or concerns about the requirement for transporters to describe their contract authority in Item 14 of the manifest (Commenter Nos. 6, 13, 20, 24, 25, 26). Five commenters expressed concern that Item 14 is becoming overrun and cluttered with additional data elements and that additional clarification and/or space on the manifest is needed (Commenter Nos. 6, 20, 24, 25, 26). Two commenters suggested that a new block of the manifest be added to address the transporter's required language instead of using Item 14 (Commenter No. 20, 26). Three commenters suggested that EPA provide clarification on what goes in Item 14, such as an example of what the regulatory phrase  -  "describe the authorization"  -  means in this context (Commenter Nos. 6, 20, 25). 

Response: EPA acknowledges the several comments expressing concerns about the clarity of the language that should appear in Item 14 to indicate the grant of agency authority to the initial transporter by a generator, and the concerns about the use of an already crowded Item 14 to address this newly required statement. EPA has addressed the comment concerning clarity by specifying the statement that must appear in Item 14: "Contract retained by generator confers agency authority on initial transporter to add or substitute additional transporters on generator's behalf." EPA agrees that a drawback to including this statement in Item 14 is that this Item of the manifest has been set aside for numerous other types of data that are required in particular instances. However, there is not room on the current paper form to accommodate a new block, and EPA has attempted to include the essential contract authority language in as succinct a statement as possible. In addition, as more users migrate to the electronic manifest, the physical limitations of the current paper form will not be as great a constraint as it is today on the collection of the information that may be required to be entered in Item 14.

Comment: One commenter (generator trade association) recognized the need for the proposed amendments at 40 CFR 263.21(b), but is aware of situations where Superfund and other liabilities were incurred by its members as the result of the unilateral redirection of a generator's waste without prior approval (Commenter No. 13). The commenter offered modifications to the proposed regulatory language that would explicitly state that the arranging transporter would be primarily liable for any and all costs that result to the generator from the new transporter's management of the generator's waste. 

Response: EPA understands these generators' concerns that the newly substituted transporter might mismanage the waste and in some circumstances, the generator could still bear Superfund or other liabilities. However, EPA is not adding the suggested language that would shift all such liability to the initial transporter that arranged the addition of the new transporter. The final regulation provisions on transporter changes only deal with the substitution of another RCRA authorized transporter by the initial transporter acting with a grant of agency authority from the generator. EPA believes that any liability questions that arise from the substitution of a new transporter should be addressed under agency law principles or under Superfund, and not by a liability shifting amendment to the transporter regulations.

Comment: One commenter opposed the proposed amendments because transporters have been making these changes for years without the need for new regulations (Commenter No. 24). The commenter indicated the complexities of various transportation/transfer scenarios and believes that transporter responsibilities should be left to industry standard practices and existing EPA and Department of Transportation (DOT) regulations.

Response: EPA understands the commenter's concern that EPA is modifying its 40 CFR 263.21 regulation to synchronize it with current industry practices. However, the commenter should be aware that the existing regulation does not in fact authorize transporter substitutions that occur in cases other than emergencies, and then, only when there is an actual consultation with the generator on the suggested change. This regulation has previously given rise to enforcement actions in some states against transporters that did not follow the existing regulation more literally. EPA is including the amendment on transporter changes in the final rule, since it will in fact result in clarity as to what changes are allowed, and protect entities such as the commenter from being the subject of enforcement actions in the future for the conduct that the amended regulation now explicitly allows.

Comment: Two commenters offered editorial changes to the proposed regulatory provisions at 40 CFR 263.21(b) (Commenter Nos. 6, 26). They suggest, for example, that the phrase "Transporters with agency authority" be revised to say "Transporters with generator authority."

Response: EPA acknowledges the comment and suggestion that the amended section 263.21(b) use the term "transporters with generator authority" rather than the proposed language that mentioned "transporters with agency authority." EPA is retaining the transporters with agency authority language in the final rule, because it more accurately reflects the legal relationship of the initial transporter to the generator and conveys the point that the initial transporter making a transporter change under this section is acting under a grant of limited agency authority to act on behalf of the generator only to make such transporter changes, that is, only to add or substitute another transporter, to respond to an emergency, or for purposes of transportation efficiency, convenience, or safety. The suggested reference to generator authority could suggest that the initial transporter assumes other generator responsibilities not conferred by the regulation's limited agency.

Comment: One commenter noted that the preamble mentions brokers in addition to the transporters as the entity that has expertise in arranging the logistics of the waste shipments (Commenter No. 25). The commenter recommends that EPA should acknowledge that a broker, who is not also functioning in the capacity of the transporter for a particular waste shipment, could not be granted the authority to make manifest revisions. 

Response: EPA thanks the commenter for this helpful point that merits clarification. The commenter is correct that a broker who is not also functioning as the initial transporter for a particular waste shipment has no authority to make the manifest changes allowed under this regulation as amended. The proposed rule addressed only transporter changes by the initial transporter, and the final rule retains this limitiation.

Comment: One commenter asked EPA to define "agency authority" (Commenter No. 10). The commenter also suggested that EPA require any changes to the manifest to be legible.

Response: EPA thanks the commenter for the suggestion to add a definition of "agency authority." While the final regulation does not include a formal definition of agency authority, the Agency believes that the final rule language as modified is very explicit in requiring a contractual term providing the initial transporter with the limited authority to only make the rule's specified transporter changes on behalf of the generator. EPA believes that the more explicit language of the final rule is sufficiently clear on the scope of agency authorized by the rule.

19. 	Submission of Manifest Data Corrections

Comment: Eight commenters offered suggestions or concerns that only designated TSDFs are allowed to make corrections (Commenter Nos. 1, 6, 9, 16, 18, 22, 24, 26). Four commenters expressed questions and concerns that generators (and other parties) cannot make changes to the manifest data even though they are responsible for their waste and suggested that generators and others be given greater opportunity to make or dispute corrections (Commenter Nos. 1, 6, 24, 26). Four commenters asked for clarification on how other interested persons (e.g., transit states not identified on the manifest) will be informed of manifest transactions and have the ability to provide corrections input (Commenter Nos. 6, 9, 24, 26). Five commenters asked for clarification on how all waste handlers involved with a shipment (e.g., persons without system access) will be involved in the corrections process (Commenter Nos. 6, 16, 22, 24, 26). 

Response: EPA thanks the several commenters for their expressions of concern with the proposed rule's approach to submitting post-receipt data corrections. EPA heard numerous objections to how the proposed rule limited corrections to only the designated TSDFs or receiving facilities rather than allowing generators or other parties responsible for wastes to initiate corrections. In response to these comments, and related advice from the e-Manifest System Advisory Board in January 2017, EPA is changing the corrections process significantly for the final rule. Under the final rule, any waste handler or interested person named on the manifest may submit a data correction at any time to the system. The revised corrections process is now a more open process, where a correction may be submitted by any interested person, and notice of such change provided electronically to the other parties. Any party may then respond with their correction.

Persons desiring to participate in the post-receipt corrections process must have registered in the system and identified an email address where they may be contacted with correction related notices. Generators do not need to execute electronic manifests to participate, and they may make corrections to their paper manifests as their wastes are being prepared for transportation and delivered to their transporter. However, once the receiving facility submits a manifest to the EPA system, all post-receipt corrections, including corrections by generators, must be made electronically. Therefore, generators participating in the post-receipt corrections process must establish an account in the e-Manifest system and register an email address where they will receive correction notices. All parties participating in the corrections process, by making corrections or by receiving notices to which they may respond, must participate electronically. Only the waste handlers and interested states listed on the manifest will be able to make corrections and receive notices of corrections. Transit states are not listed on the manifest, and will not be provided the opportunity to participate in the data corrections process.

Comment: Eleven commenters offered suggestions or concerns about the proposed 90-day limit for TSDF corrections (Commenter Nos. 6, 7, 10, 16, 17, 18, 20, 22, 24, 25, 26). Six of these commenters believe there should not be a time limit on making corrections, or else, the window should be re-opened after 90 days if corrections are needed (Commenter Nos. 6, 16, 17, 24, 25, 26). They offered examples of situations when errors are found after 90 days of shipment receipt. One of the commenters (state agency) also pointed out that, if state databases are updated with correct information after 90 days and data corrections are not accepted in e-Manifest, there will be data inconsistencies between state and federal databases (Commenter No. 6).  Three commenters asked how the proposed 90-day window for manifest corrections would function alongside the existing manifest discrepancy requirements at 40 CFR 264.72 (Commenter Nos. 7, 10, 22). Two commenters asked for clarification on how to address corrections that are needed after the 90-day period (Commenter Nos. 7, 20).

Response: EPA received many comments objecting to the proposed rule's 90-day window or limit for making corrections. A number of these comments provided helpful examples of instances in which a 90-day limit is not workable, such as drum shipments with multiple line items that are stored but not immediately processed, errors not discovered until the preparation of an annual or biennial report, errors not discovered until a later billing cycle or during an audit, and wastes placed in storage for up to one year under the land disposal restrictions (LDRs) storage provision. EPA finds these comments persuasive, and as a result, the final rule will not impose a 90-day limit on making data corrections. Under the final rule, data corrections may be made by any interested person named on the manifest at any time. However, this does not affect the policy announced in the One Year Rule whereby manifest data will be disclosed to the public 90 days after receipt of a shipment. EPA believes that in most instances, manifest corrections will occur prior to the 90-day window that still determines when data will be disclosed to the public. In some infrequent cases, this will result in data that are not yet fully corrected being disclosed to the public after 90 days. 

Comment: Two commenters commented on the 60-day timeframe for the TSDF to make corrections (Commenter Nos. 17, 21). One commenter suggested that EPA mandate that manifest corrections be initiated by designated TSDFs within 60 days to ensure that adequate time is provided for other interested persons to review and respond before the 90-day limit (Commenter No. 17). The other commenter asked EPA to clarify that TSDFs can make corrections beyond the 60-day timeframe since data errors might be found afterwards (Commenter No. 21).

Response: EPA thanks these commenters for suggesting improvements to the proposed rule's timeframes for TSDFs to initiate corrections so that all interested persons will have time to respond before the 90-day period for corrections has run. Since EPA is no longer limiting the corrections process to the proposed 90-day timeframe, but is allowing corrections to be made at any time by any interested person named on the manifest, it is not necessary to adopt the requested changes. 

Comment: Two commenters suggested that EPA provide clear, concise instructions to designated facilities on the data validation/corrections process to ensure that they are followed consistently and that all parties understand the data standards/resource needs (Commenter Nos. 12, 18). They stated that some receiving facilities may lack sophistication with the manifest requirements, including the corrections process. 

Response: This system has built-in business logic for manifest creation and submission, and there will be training and help materials posted on the web as well as documentation built into the system itself (both the web application and through the API). In addition, the EPA will continue to communicate the requirements of the manifest throughout the user community. EPA has been conducting much outreach and testing with RCRA TSDFs during the development of the system, and this will continue until and beyond the system's launch. Receiving facilities that lack sophistication or need more time to adopt the electronic manifest requirements will still be able to use the paper manifest with their customers until they are up to speed and prepared for the adoption of electronic manifests.

Comment: One commenter suggested that manifest data corrections should be allowed using images as an alternative to XML (Commenter No. 16). The commenter states that, while most TSDFs will submit manifest data electronically, TSDFs initially submitting manifest images may not be set up to prepare the correction data in an XML format. 

Response: EPA appreciates this comment on an image-based correction submission. The Agency is concerned, however, that the approach suggested by the commenter would create a greater expense for the corrections process and perhaps lead to an increase in user fees. A corrections process posing higher costs and fees would likely inhibit corrections and lead to a decrease in data quality in the system. The submission of images would pose much more complexity and result in higher costs because a handler would need to make the correction, scan the correction, convert the correction to PDF, upload the corrected PDF, and then finally electronically sign the correction. The TSDF would then need to wait for the paper processing center to verify the correction and make enter the corrected record in the system. The final rule rejects this suggestion and instead relies on the handler to submit a correction electronically, thereby avoiding the manual processing that image files would require, and relieving the burden on industry. The final rule approach also ensures that submitters can see their changes in real time.

Comment: Three commenters expressed support for giving the designated TSDF the final approval authority over manifest data corrections (Commenter Nos. 20, 21, 25).

Response: EPA appreciates the comments supporting the feature of the proposed rule that gave the designated TSDF the final approval over manifest data corrections. Since the final rule has altered the proposed approach significantly, and now includes an open corrections process whereby any interested person named on the manifest may make a correction at any time, the designated TSDF (receiving facility) no longer has this final approval authority. Instead, under the final rule's open process, the last correction made in the system is presumed to be correct, unless and until it is subsequently corrected.

Comment: Two commenters asked for clarification of the term "correction" as used in the rule (Commenter Nos. 24, 25).

Response: EPA thanks the commenters for requesting this clarification. For the final rule, a correction is a correction made to an existing data record in the e-Manifest system after it has been submitted initially to the system by the receiving facility. The receiving facility's submission of the final manifest to the system will typically result in an initial data record being created in the e-Manifest system. Later, the receiving facility or other interested persons listed on the manifest may detect errors in the previously created data record. When the facility or other interested persons submit the correction submission to alter the initially created data record, the result is a data correction within the meaning of this final rule.

Comment: One commenter asked for greater clarification on the applicable requirements of the Cross Media Electronic Reporting Rule (CROMERR) and the corrections process generally (Commenter No. 24). The commenter raised questions about how corrections will be made, who can make them, and how a manifest copy of record will be configured.

Response: Due to the requirements of the CROMERR rule, EPA must mandate that each correction be certified by the user making the correction. Corrections will be made via the e-Manifest front end and via web services. Corrections may be made by any user who is a waste handler named on the manifest or by an interested state that is named on the manifest. The user or state official submitting a data correction through the e-Manifest data corrections process shall apply their registered CROMERR signature to certify to the accuracy and completeness of the data as corrected. The manifest copy of record will be the final signed manifest copy submitted by the receiving facility, while the copy of record of the data record in the system shall be the data from the final signed manifest copy as amended by the most recent data correction. The system will keep a copy of each signed manifest copy submitted as well as an auditable record of each correction submitted.


20. 	Hybrid Approach 

Comment: Four commenters expressed opposition to the proposed hybrid approach (Commenter Nos. 5, 6, 12, 24). In addition, five commenters conveyed concerns and critical questions about the approach (Commenter Nos. 5, 6, 12, 18, 24). They raised questions and concerns that the hybrid approach would result in the creation and existence of two versions of the same manifest (i.e., paper and electronic versions) which will pose risks and problems for industry implementation (e.g., chain-of-custody errors and intentional abuses) as well as state compliance monitoring and enforcement (e.g., difficulties detecting errors). One of them stated that the hybrid approach would be a disincentive for generators to participate fully in the e-Manifest process, hindering complete and full industry adoption (Commenter No. 6). Two commenters raised concerns that the hybrid approach is unnecessary, e.g., because most sites have electronic devices and Internet access suitable for electronic manifesting activities or because the paper-based system will still be available as an alternative to the e-Manifest (Commenter Nos. 5, 12). One commenter expressed concern that designated TSDFs might try to re-coup their e-Manifesting costs from unsuspecting generators that have used only the paper manifest (Commenter No. 5).

Response: EPA acknowledges the several comments critical of the proposed hybrid approach. EPA is fully aware that the proposed hybrid would enable generators to not participate fully in the electronic process. That was in fact the purpose of the proposed hybrid  -  to provide an interim means for manifests that would otherwise likely be executed on paper to be executed electronically for all but the generators. EPA proposed the hybrid approach out of concern that impediments to generator adoption of electronic manifesting would thwart electronic manifest usage under the One Year Rule's ban of mixed paper and electronic manifests. There may be implementation challenges at generator sites  -  e.g., using technology at some remote sites, registering many thousands of generator personnel to access e-Manifest, requiting many thousands of generator signatories to engage in CROMERR identity proofing and to execute CROMERR's two-factor authentication-based electronic signatures  -  that might cause the generators' adoption rate to lag behind the rate of adoption for transporters and receiving facilities. Thus, the proposed hybrid manifest approach was intended as a limited revision to the mixed manifest ban announced in 2014. Under the proposed hybrid manifest, the generators only might continue to sign and retain a paper manifest as their initial copy, while the transporters and receiving facilities with the greater business incentives to adopt and use electronic manifests could execute the remainder of the hybrid transaction as an electronic manifest. EPA readily acknowledges that the hybrid manifest presents features that are not ideal, such as the creation of a distinct paper copy at generator sites that is severed from the electronic version that continues in play in the system. Thus, the generator copy can be inspected only at the generator site, and changes made subsequently to the manifest by other handlers may not be apparent to the generator, unless the generator examines the final electronic copy in the system. Despite these deficiencies, EPA is still persuaded to include the hybrid approach in the final rule. The hybrid presents tracking drawbacks, but the advantages it poses in enabling more electronic manifests to be executed in the interim surpass the drawbacks. The paper copy retained by the generator is only the initial generator copy and is no different than the initial copy that generators currently obtain from the initial transporter. Changes that occur to the manifest downstream are only apparent to the generator if it closely monitors the final copy returned to it by the receiving facility. That will still be the case under the hybrid approach. Generators using the hybrid will still be expected to obtain system credentials to access their manifest copies, so these generators will be able to view the final electronic copies sent to their accounts, and can compare the final copies with their initial paper copies. 

While EPA would indeed be concerned if the hybrid thwarted progress toward fully electronic manifesting by generators over the long run, EPA will monitor trends in electronic manifest adoption for the several years after the system launch. EPA will consult with the Advisory Board on trends in electronic manifest adoption, and should we find that the hybrid is a deterrent to electronic manifesting, the hybrid may be phased out after several years.

Comment: Six commenters expressed support for the proposed hybrid approach or a commenter-supplied alternative (Commenter Nos. 16, 19, 20, 21, 22, 25). One of these commenters suggested that a hybrid approach be made permanent if using fee structure Option 3 (Marginal Cost Highly Differentiated Fee) (Commenter No. 21). If not using fee structure Option 3, the commenter supports the hybrid approach for an interim period of at least 3 years, after which the option would be available to CESQGs and SQGs only. The commenter believes that such an approach can be implemented with simplicity and will reduce processing burdens and help to achieve EPA's goals of 75% e-Manifest participation. Another commenter expressed support for the proposed approach, but requests additional clarification on its procedures (Commenter No. 22).  The commenter asks if generators using paper manifests have any obligation to notify EPA that they are using the hybrid approach, or if there is a TSDF responsibility for such a notification. The commenter also states that clarification is needed on how the downstream manifest requirements (e.g., manifest receipt notifications, exception reporting, etc.) and fee assessment will be carried out given the absence of a paper manifest beyond the initial generator copy. 

Three commenters offered an alternative approach (Commenter Nos. 16, 20, 25). Under the alternative, the transition from paper to electronic manifest would occur when the shipment is received by the designated facility. Generators and transporters would transact the paper manifest until delivery to the facility. The facility would sign the paper manifest by wet ink, retain a copy and upload electronic manifest data to the e-Manifest system. These commenters believe this approach will provide greater flexibility and enable significantly more electronic manifests to be uploaded to the national system. 

Response: EPA appreciates the several comments supporting the proposed hybrid manifest. EPA is currently planning to implement the hybrid as an interim approach to be reevaluated after several years to determine if it is having a positive effect or not on electronic manifest adoption. Whether the hybrid will be phased out or made permanent for some classes of waste handlers will be determined after that program evaluation is completed in several years. 

While the use of the hybrid will not require any special notification by the generator or receiving facility, generators may need to obtain credentials to access their accounts on e-Manifest and to view the final copies of the manifests that will be distributed to handlers by the system. By monitoring the electronic, final copies, and responding to any notifications from the system, generators will thus be able to participate in exception reporting, receive notices of any discrepancies, and receive or submit corrections. The hybrid does not excuse generators from obtaining accounts in e-Manifest and monitoring manifest activities there. It only excuses the generator from executing and signing its initial manifest electronically, and allows the generator to retain a paper copy as its initial file copy. 

Comment: Four commenters recommended that EPA not implement full electronic manifesting at one time, but to phase in the e-Manifest over time (Commenter Nos. 16, 20, 24, 25). Given the administrative requirements that will apply under the e-Manifest system, these commenters do not believe industry will be ready to transition to e-Manifests at the same time. They also expect that operational malfunctions could arise with the e-Manifest system. 

In addition, one of the commenters expressed concern and encouraged greater progress toward building the e-Manifest system (Commenter No. 24). The commenter described problems and issues to be encountered in the development and implementation of the e-Manifest system related to user administration systems, data corrections workflows and offline capabilities. Given these challenges, the commenter believes that the e-Manifest system should be built in phases, utilizing existing industry knowledge and resources.

These commenters recommend that EPA phase in the e-Manifest system as follows: 

 Phase I would be TSD facility conversion of the paper manifest to electronic data for upload to EPA, the so-called "back end" of the system. The goal of Phase I would be to ensure that approximately 900 TSD facilities in the U.S. can successfully transmit e-Manifests to EPA's data center, make corrections when necessary, and fully implement this part of the e-Manifest system. In addition, Phase I would address the administrative requirements related to registering TSD personnel as authorized users and signatories, identity proofing each TSD signatory, and otherwise meet the CROMERR electronic reporting standards as they relate to TSD facilities. 
 Phase II would prepare generators for the e-Manifest system by registering generators and transmitting confirmation of manifest completion electronically to the generator. The goal of Phase II would be to educate and enlist as many generators as possible to participate in the e-Manifest system and complete the administrative requirements related to registering generator personnel as authorized users and signatories, identity proofing each such generator signatory, and otherwise meeting the CROMERR electronic reporting standards as they relate to generators. This phase could also involve integration of the DOT's hazardous materials electronic shipping system and the EPA's e-Manifest system.
 Phase III would be full implementation of the electronic manifest. After generators, transporters and TSD facilities are educated, registered, and planning for their participation in the e-Manifest system, final implementation would occur. 

The commenters believe this three-phase approach aligns with EPA's agile development strategy. In terms of user fees, the commenters suggest that a nominal fee could be assessed beginning in Phase II when both generators and TSD facilities begin to realize a modest cost savings. The full user fee amount would be collected when Phase III is implemented. 

Response: EPA appreciates the several comments from the waste industry recommending a phased approach to e-Manifest implementation. EPA agrees with the thrust of these comments, and the Agency sees advantages to the phased implementation suggested by the commenters. EPA agrees that the commenters' Phase I is a useful way to commence e-Manifest operations, as it will convert paper manifests received at facilities to electronic data to be uploaded to the system. This is not so great a lift from the current paper system, and it will enable EPA to establish for the first time a national database containing manifest data from all sources. It will also allow EPA to commence collecting fee revenues needed to fund the system's development and operating costs in a self-sufficient manner. 

The Agency also agrees that the industry commenters' Phase II, involving significant generator outreach and the electronic transmittal of final manifest copies to participating generators, has considerable merit. Indeed, phases I and II are very consistent with EPA's regulations allowing receiving facilities to transmit paper manifest data to the system as a data file upload with the image file attached, and the final fee rule includes a differential user fee aimed at such data file uploads from paper manifests.

EPA is undertaking a deliberate, phased approach to e-Manifest implementation so that we can accomplish the Act's objectives to both allow the continued use of paper manifests, while still facilitating the adoption of electronic manifesting. EPA is finalizing the hybrid manifest approach in the final rule, as it may be a helpful component to a strategy to involve generators in Phase II, while enabling more manifests to be received and processed as electronic manifests in the system as an interim step toward Phase III. The Agency is also including in the final rule a provision phasing out mailed paper manifest submissions by facilities three years after system launch. The Agency also plans an evaluation of electronic manifest adoption trends, and we will consult with the Advisory Board on this evaluation and ask for the Board's input on whether other incentives or restrictions should be adopted to ensure greater progress toward full adoption and use of electronic manifests.

EPA is not accepting the commenter's suggestion that a nominal fee be charged only after Phase II begins, thus deferring full fee collection until Phase III. EPA is obligated to produce full cost recovery with its user fees, and the fees in each of the initial five years of operation will also recover a part of the system development costs. Under the differential fee approach in the final rule, the fee associated with the types of data file uploads contemplated by commenters for phases I and II is not much greater than the fee charged to electronic manifests. The fees determined by the final rule's fee methodology are well aligned with recovery of the costs of using these manifests, and should provide the Agency with the revenues it needs to offset the actual costs of the system.

21. 	RIA 

No substantive comments were provided on the Regulatory Impact Analysis (RIA).

22. 	ICR 

No substantive comments were provided on the Information Collection Request (ICR).

23. 	Other Comments 

EPA's Manifest Estimates

Comment: One commenter asked for EPA to clarify the timeframe for its estimate that hazardous waste entities currently use between three and five million manifests and continuation sheets to track RCRA hazardous and state-only regulated wastes from generation sites to receiving facilities for their management.

Response: During the development of the Manifest Revisions Rule in 2005 and publication of several regulatory notices from 2006 to the present related to the electronic manifest, EPA has prepared information collection requests (ICRs) and economic analyses that have tried to estimate reasonably the numbers of manifests currently in use. As we began work on the Fee Rule in 2014, we conducted outreach with members of the Environmental Technology Council (ETC) and with registered printers aimed at determining how many manifests are used by several of the largest users and how many are sold to users by the registered printers. These analyses and outreach efforts consistently suggested manifest usage in the three to five million per year range. With the inclusion of state-only regulated waste manifests in the e-Manifest system per the mandate of the e-Manifest Act, EPA acknowledges that the inclusion of state-only regulated waste manifests introduces some uncertainty to this estimate. Once the system is operational, however, the actual level of usage of manifests should become apparent. Since the number of manifests in use is pivotal to fee calculations, and EPA plans to re-run the fee formula and determine new fee schedules at two year intervals, the fee amounts will be self-correcting once the actual manifest usage numbers are known and are plugged into the formula, and the rule's adjusters applied to account for any estimating errors in the initial years.

Manifest Completion by Transporter

Comment: One commenter agreed with EPA that transporters play a significant role in supporting generators in completing the manifest (Commenter No. 6). The commenter recommends that transporters share the regulatory responsibility of properly and legibly completing the manifest form.

Response: EPA thanks the commenter for the observation that transporters play a significant role in assisting some generators with completing their manifests. Nothing in today's regulation or the planned e-Manifest system alters this fact or affects the ability of transporters or receiving facilities to assist generators by supplying draft manifests or otherwise assisting in the preparation of the manifest for their generator customers. Initial transporters often perform valuable pre-transportation or "offeror" responsibilities for their generator customers, and EPA expects that these transporters will also provide valuable assistance to generators with preparing and using electronic manifests.

Phase-In Period for e-Manifest Adoption

Comment: One commenter expressed support for EPA's intention to phase in the use of the e-Manifest system and allow manifest users to have the option to use paper copies until a specified date (Commenter No. 1). The commenter states that this phase-in period will afford manifest users the most efficient and seamless adjustment process to the new system. The commenter suggests that the date at which electronic manifests are mandatory and paper copies no longer allowed should not be set until there is confidence that all parties, including smaller generators, can make an easy adjustment to an electronic only system. In addition, it is important to ensure that when rolled out the system is truly national, and that generators will not be using an electronic version to meet federal requirements and paper versions to be compliant with state regulations. Such duplication will eliminate any efficiencies to be gained from the electronic system and will be unduly burdensome on the regulated community.

Response: EPA thanks the commenter for their comment supporting the phase-in of the e-Manifest system, and the eventual phase-out of paper manifest use. EPA is undertaking a deliberate, phased approach to e-Manifest implementation so that we accomplish the Act's objectives to both allow the continued use of paper manifests, while still facilitating the adoption of electronic manifesting. EPA understands that initially, many receiving facilities might choose to continue to receive and process paper manifests from their customers, but then upload the data from these manifests to the EPA system electronically. There will be a number of advantages to this method of submission initially, as it will allow the data to be exchanged with EPA efficiently and will populate for the first time a national database of manifest data from all sources. In order to move rationally beyond paper manifests in time, EPA has included in the final rule a phase-out after three years of mailed manifest submissions by receiving facilities. This will not affect the ability of generators to still use paper manifests to track their shipments, but will limit the receiving facilities to providing the data from their paper manifests by digital means. EPA's goal is to phase out all paper manifest use after five years, but a decision to do this will await a fuller evaluation of manifest use trends in several years, and consultation with the e-Manifest System Advisory Board on appropriate steps to facilitate more electronic manifest use.

EPA is aware that duplicative or inconsistent state and federal manifest requirements could be burdensome. In the e-Manifest Act, the Congress signaled that it intended a national e-Manifest that would be implemented consistently in all states. In the 2014 One Year Rule, EPA clarified that authorized states must respect the validity of the electronic manifests implemented in the national system, and that states cannot impose additional or different manifest requirements. Thus, states cannot require a paper manifest in lieu of electronic manifests, and after the system launch, all manifests from receiving facilities must be submitted to the national system hub, and not directly to states. 

Bulk Shipments

Comment: One commenter recommended that EPA clarify whether an intermediate bulk container (IBC) is a bulk container requiring a discrepancy note if the received weight varies more than 10% from the shipped waste (Commenter No. 10). The commenter also recommended clarifying whether the DOT definition for bulk waste applies in this situation. 

Response: EPA included the statement about bulk containers only as an example of a situation where errors might occur between quantities shown as shipped and quantities received necessitating a correction to manifest data. EPA did not intend to open a new rulemaking issue concerning intermediate bulk containers (IBC) and when they might require discrepancy reports.

Stakeholder Involvement

Comment: One commenter expressed concern about the large amount of information EPA is seeking through the comment process in the proposed rule (Commenter No. 22). The commenter notes that the feedback and answers to questions EPA receives on the proposal could substantially alter the final regulation from its proposed form. The commenter asked EPA to engage all the affected sectors of the regulated community to be sure they process, clarify and understand changes made prior to issuing the final regulation. 

Response: EPA thanks the commenter for this comment suggesting that there be significant outreach with stakeholders after the final rule is published, so that commenters can get clarification of changes made to the rule between proposal and final rule. EPA does plan to engage in intensive outreach with stakeholders on both system launch and regulatory development matters. EPA will develop communications materials addressing the final rule, and will engage with stakeholders to explain the final rule. However, EPA is precluded by law from discussing changes made to the rule post-proposal until the rule is issued as a final rule signed by the Administrator.

Comment: One commenter encouraged EPA to learn from its experiences in developing other Agency software projects (Commenter No. 22). The commenter identified another Agency software development project and asked EPA to learn from its challenges and solutions. 

Response: EPA has reached out to and learned many helpful insights from a number of Agency systems and software products. The program's system development team continues to learn from the experiences of other programs beyond EPA's RCRAInfo System. The current e-Manifest product owner under the Agency's Capital Planning and Investment Control (CPIC) program was previously the product owner for the Office of Air and Radiation's EPA Moderated Transactions System (EMTS), which is a cradle to grave credit trading program for renewable fuel and gasoline sulfur credits under EPA's fuels programs. In addition, EPA worked with the Office of Environmental Information in understanding the Toxic Release Information (TRI) program and other Agency programs. Agency staff responsible for the fee management and planning aspects of the program have coordinated with counterparts in the Agency's pesticide registration and maintenance fee programs implemented under the Pesticide Registration Improvement Acts (PRIA), with staff in the Agency's lead paint abatement program, and with those responsible for administering fee programs in the budget office. Looking outside the program office has been helpful in learning from successes and challenges of other EPA IT and user fee programs.

Biennial Report

Comment: One commenter recommended that the e-Manifest system be designed to utilize the submitted manifest information to populate the offsite waste generation portions of the Biennial Report, thus reducing the annual labor burden for hazardous waste generators and TSDFs (Commenter No. 22).

Response: The e-Manifest Act requires EPA to integrate e-Manifest with the waste receipt reporting functions of the RCRA biennial report. EPA is developing e-Manifest as a module of its RCRAInfo system, which also includes the RCRA Hazardous Waste Report (biennial report). EPA plans to implement waste receipt reporting for the biennial report soon after the domestic hazardous waste manifesting capabilities of e-Manifest have been deployed.

System Development by Private Sector

Comment: One commenter recommended that EPA allow private entities to develop their own e-Manifest systems that meet the performance specifications established in the rules (Commenter No. 26). The commenter indicated that private companies want to track the movements of their waste shipments. They could then provide data uploads into EPA's system.

Response: EPA appreciates the comment on private sector system development. The e-Manifest Act calls for EPA to develop a national e-Manifest solution, and thus EPA is developing such a national system. However, EPA is proceeding as appropriate with the heavy involvement of industry, and engaging industry members in integrating their existing tracking systems with e-Manifest through the use of Application Programming Interfaces or APIs. Thus, private entities with existing investments in tracking systems should be able to conduct much of the electronic manifest creation and transmission workflow from their systems, and submit manifests from their systems to e-Manifest, where copies of record will be maintained and copies distributed to other handlers and to states.
                       Table of Commenting Organizations
No.
                               Organization Name
                                       1
American Petroleum Institute (API)
                                       2
Rory McCarthy, Brewer Science Inc.
                                       3
Anonymous Commenter
                                       4
Anonymous Commenter
                                       5
Anonymous Commenter
                                       6
M. Hill, State of New York Department of Environmental Conservation (NYDEC)
                                       7
Richard A. Hyde, P. E., Executive Director, Texas Commission on Environmental Quality (TCEQ)
                                       8
David Shanks, The Boeing Company
                                       9
Noa Klein, Hawaii Department of Health
                                      10
Julie Rainey, Florida Department of Environmental Protection
                                      11
Robert E. Fronczak, Assistant Vice President, Environment & Haz Mat, Association of American Railroads (AAR)
                                      12
Joshua Burman, HW/PCB Compliance, Minnesota Pollution Control Agency (MPCA)
                                      13
Douglas Greenhaus, Chief Regulatory Counsel, Environment, Health, and Safety, National Automobile Dealers Association (NADA)
                                      14
Joshua Burman, Minnesota Pollution Control Agency
                                      15
Tammie J. Hynum, Chair, Hazardous Waste Subcommittee, Association of State and Territorial Solid Waste Management Officials (ASTSWMO)
                                      16
Kerry Kelly, Senior Director, Federal Affairs, Waste Management (WM)
                                      17
Eugene Collins, Deputy Assistant Secretary of the Army, Department of the Army
                                      18
James C. Sferra, Program Administrator, Division of Emergency Response and Revitalization, Ohio Environmental Protection Agency 
                                      19
Rebecca Anderson, WRR Environmental Services Co., Inc.
                                      20
David Case, Environmental Technology Council
                                      21
Tracey A. Maloney, EH&S Operations Regulatory Services, The Dow Chemical Company (Dow)
                                      22
Michelle G. Lusk, Executive Director, Cement Kiln Recycling Coalition (CKRC) 
                                      23
John McGahren, Counsel, RCRA Corrective Action Project (RCAP) 
                                      24
Heritage
                                      25
Thomas Baker, Senior Director, Environment and Transportation, Veolia ES Technical Solutions LLC (Veolia)
                                      26
Heritage-Crystal Clean, LLC (Crystal Clean)

