The Hazardous Waste Electronic Manifest Establishment Act (e-Manifest Act) authorizes EPA to impose “reasonable service fees on manifest users as the Administrator determines to be necessary to pay costs incurred in developing, operating, maintaining, and upgrading the system, including any costs incurred in collecting and processing data from any paper manifest submitted to the system after the date on which the system enters operation.” The e-Manifest Act does not itself set e-Manifest user fees, but instead gives EPA discretion to establish user fees, through regulation, that the Administrator determines to be necessary to offset the costs of developing and operating the e-Manifest system. This proposed rule is the first step in the regulatory development process to establish the user fees and other actions necessary (see question 5) to establish the system.

Yes, there was a public comment period for this proposed rule notice. Public comments were accepted through September 26, 2016.

States with authorized hazardous waste programs will be required to revise their state programs in order to be equivalent to, consistent with, and no less stringent than the requirements that EPA will announce in the final e-Manifest user fee regulation. All state programs must adopt state law requirements on e-Manifest user fees, so that users in all states are aware of their obligation to pay user fees to EPA for e-Manifest related services. However, the state program requirements on e-Manifest user fees must be clear that e-Manifest user fees are exclusively federal obligations to be paid only to EPA, and not to the state program directors. EPA will develop detailed guidance to authorized state programs on the authorization requirements for e-Manifest user fees, shortly after the issuance of the final rule, which we expect to occur in late 2017.

The proposed rule requests comment on these key issues:

• Which users of manifests or manifest data will be charged user fees?
• What transactions or services will give rise to fee obligations?
• How will users be billed for e-Manifest services and make their fee payments?
• What model or formula will EPA rely upon for the determination of users’ fees?
• How will the rule address fee schedule revisions?
• What sanctions are being proposed to promote prompt payment of fees?

The proposed rule notice includes several matters that are not user fee related, but that touch upon other aspects of the manifest system. These non-fee matters include:

• A proposal to allow certain changes to the routing of manifested waste shipments to be made while the shipment is in transportation,
• A proposed process to allow hazardous waste receiving facilities to electronically make corrections to previously submitted manifest data, and
• A proposal to allow a manifest user, in certain instances, to execute and use a hazardous waste manifest that combines the use of a paper manifest with the use of an electronic manifest.

The proposed rule includes a user fee formula that allocates all of the Agency’s system-related costs across all the manifests, paper and electronic, that will be used and submitted to the system. The major cost categories used in the formula include:

• System Setup Costs -- the intramural and contract costs incurred by EPA prior to the time that the system is operational. System Setup Costs cover all the system planning, regulatory development, system development, program management, and all other pre-operational program costs, including the establishment of the e-Manifest Advisory Board and additional costs necessary to handle paper.
• Operations and Maintenance (O&M) Costs -- the system and program related intramural and contract costs incurred by EPA after the date that the e-Manifest system is operational. These include the costs of operating the e-Manifest information technology system, operating a help desk, operating the paper processing center, planning and conducting meetings of the e-Manifest Advisory Board, revising and publishing new fee schedules, conducting invoicing and fee collection activities, reporting on the system’s financial performance and auditing its finances, and all other aspects of program management and execution.

The proposed rule would limit the requirement to pay fees to those users who are the receiving facilities designated on manifests to receive hazardous waste shipments for off-site management. These receiving facilities are also referred to as RCRA treatment, storage, and disposal facilities (TSDFs). Since all manifested waste shipments are delivered to a TSDF, and these TSDFs are relatively few in number relative to hazardous waste generators, EPA determined it would be more efficient to limit fee collection and payment activities to the TSDFs that receive manifested wastes from off-site.

The proposed rule does not impose e-Manifest system fees on members of the public or on state governments that utilize manifest data for informational purposes, and that are not required by federal or state regulation to use manifests for waste tracking purposes.  While the e-Manifest system will not impose fees on such data access, there may be fees that result under other laws, such as the Freedom of Information Act (FOIA). EPA, however, intends for the data to be generally accessible to the public in a read-only mode. As such, the agency believes that this will reduce the need to obtain data through a FOIA.

Under the proposed rule’s fee methodology, the fees would depend on the type of manifest submitted. The e-Manifest user fees are required to accomplish full cost recovery, and EPA has concluded that some manifests incur greater costs to process than others. Fully electronic manifests will entail the least amount of processing and Quality Assurance (QA) related costs, while paper manifests will entail the greatest processing costs for data key entry QA activities, etc. Other forms of submission such as an image file will cost something in between.    

The proposed rule would specify a fee for several transactions:

• The submission of each final manifest copy to the system by receiving TSDFs, with the imposed fee dependent on the type of manifest submission,
• The submission of data corrections to previously submitted manifest data by TSDFs, and
• The sorting and return to sender of any stray or misdirected paper documents submitted to the system with paper manifests.

The proposed rule’s initial fee formula would result in higher fees for paper manifest submissions, because the paper manifests involve greater marginal costs than electronic manifests to receive and process into the e-Manifest system. The initial fee formula would result in significantly higher fees for paper manifests mailed to the system, and somewhat lower fees for paper manifests submitted as image files or as data file uploads to the system. In addition, should the use of the initial user fee formula not produce a 75 percent adoption rate for electronic manifests within the initial four years of system operations, the proposed rule would shift to a different fee formula that imposes greater fees on paper manifests.

The proposed methodology enables EPA to revise its fee schedules to keep pace with changes in program costs, and with improvements in manifest use data. Under the proposed methodology, EPA plans to regularly determine whether to revise its e-Manifest user fees. In addition, the Hazardous Waste E-Manifest System Advisory Board will consult with EPA on setting and revising user fee schedules and on system enhancements that might affect the scope of the program and the fee amounts required for cost recovery.

In the proposed rule’s fee formula, the fees imposed are highly dependent upon the total program related costs incurred by EPA and the numbers of manifests over which program costs will be allocated. Therefore, when revising its user fee schedules, EPA would re-run its fee formula using the most recent data on program costs and manifest numbers. The proposed rule also contains fee adjustment factors that would revise fees to address inflation, to correct for inaccurate estimates of manifests in use, and to correct for revenue lost because of uncollectable user fee obligations.

Under the proposed e-Manifest user fee rule, EPA would re-run the fee formula and publish revised user fee schedules at two-year intervals.

Revisions to user fees generally will not require a new rulemaking. EPA is proposing a fee revision methodology under which the fee formula would be re-run at two-year intervals, with the most recent program cost and manifest usage numbers being used in running the fee formula to calculate the fees for each manifest submission type. The result would be a fee schedule that announces the fees for each of the next two years. 

If, however, EPA significantly alters its methodology for calculating or adjusting fees, or the fees are affected by significant new program costs not anticipated in the formulas included in the initial fee-setting methodology, then EPA would follow notice-and-comment procedures before announcing any revised fees based on a significantly new fee methodology.

EPA will publish the revised fee schedules at the e-Manifest program’s website, and will also provide a link to users when they access the e-Manifest system so that they can be immediately notified of and directed to the new fee schedules.

EPA is considering several fee collection approaches for e-Manifest. Specifically, the Agency is considering a pre-payment option based on projected or historic use of both paper and electronic manifests, and an invoicing option under which users would be invoiced for fees based on their actual manifest usage during the previous billing cycle. 

Manifest users could use any payment method of their choice supported by the Department of the Treasury’s Pay.gov electronic payment collection services (or any applicable alternative or successor to Pay.gov developed by Treasury) as long as EPA’s financial tracking systems are able to obtain and process the selected method of payment.

This rulemaking proposes sanctions that will increase in their severity based on the degree and duration of the delinquency, including:

• Financial Claims Collection Penalties - Interest and additional financial penalties may be imposed on outstanding or delinquent debts;
• Publication of a Delinquent Payor’s List – EPA would include a list or registry of payors whose user fee payments remain delinquent for 120 days or more despite the imposition of financial penalties and opportunities to cure the delinquency; and
• RCRA Enforcement - If any manifests remain incomplete because of owed fees, then EPA may pursue an enforcement action against the delinquent facility.

This rulemaking also requests comment on other possible sanctions that might be considered as we develop our final user fee regulation, including denial of services and the possible suspension of a delinquent facility’s authority to receive wastes for management from off-site.

The proposed user fees will go into effect once EPA announces the implementation date for the e-Manifest system. EPA will issue a final rule notice in the Federal Register that will include or provide links to the initial fee schedule developed using the rule’s fee methodology and the implementation date for the e-Manifest system. Certain users of the hazardous waste manifest will be required to pay a prescribed fee for each electronic and paper manifest they use and submit to the system beginning on the implementation date for the e-Manifest system.

EPA attaches great significance to the role of the e-Manifest Advisory Board in consulting with EPA on fee revisions. As the Board will be comprised of a cross-section of program stakeholders, EPA believes that this consultation role will be very important to maintaining trust in EPA fee setting and revision methodology. EPA will share financial reports and audits with the Advisory Board, and current and projected program budgets and their effects on proposed fee revisions will be a regular agenda item for EPA’s discussions with the Advisory Board.

The expected costs and benefits of e-Manifest will vary from year to year. The adoption of electronic manifesting, the total number of manifests passing through the system, and system design are all factors that influence the costs and benefits. Over time, as more users adopt electronic manifests, costs are expected to fall and benefits are expected to rise. Over the first six years of system operation, costs savings are expected to be $34 million per year.

Yes. The e-Manifest Advisory Board will consult with EPA on setting and revising user fee schedules and on system enhancements that might affect the scope of the program and the fee amounts required for cost recovery. Both the Advisory Board and the Office of Inspector General (OIG) will provide scrutiny and oversight of the user fees.