February 1, 2018

e-Manifest System Launch Date and Fees Set

EPA has announced that June 30, 2018 is the date it plans to launch and begin operation of the e-manifest system. This announcement was included in a January 3, 2018 rulemaking, in which EPA finalized the method it will use to set, revise, and collect e-manifest user fees. [83 FR 420] Although paper manifests may continue to be used after that date, in addition to the electronic version, there will be higher fees for using paper manifests.

The final rule requires receiving facilities—not hazardous waste generators or transporters—to pay the fees. (There are approximately 400 TSD facilities in the United States that receive hazardous waste shipments.) Receiving facilities also include those facilities receiving state-only regulated wastes that are required to be manifested under state law. Receiving facilities will receive monthly electronic invoices showing their actual manifest activity during the previous month.

Since it will be the receiving facilities and not generators who will pay e-manifest user fees, receiving facilities will presumably increase the waste management prices they charge to generators to recoup those expenses. However, EPA is not regulating any pass-along costs but is deferring to business arrangements between the parties. The agency will not charge members of the public or state and local governments any user fees for accessing manifest data from the e-manifest system.

e-Manifest User Fees

When up and running, EPA envisions four types of manifests from which data will be entered into the e-manifest system: 1) paper manifests that receiving facilities will mail to EPA, 2) paper manifests that receiving facilities will scan into an image file and transmit to the agency, 3) paper manifests that receiving facilities will submit as an image file along with a corresponding data file (e.g., JAVA Script Object Notation, or JSON, file), and 4) fully electronic manifests that have been completed and distributed electronically using the system. For the first three types, there will be varying additional costs associated with a “paper processing center” (where data from paper copies will be entered into the system), and these additional costs will be factored into the per-manifest fees.

The rule contains complicated formulas that EPA will use initially to calculate per-manifest user fees; they include system development costs, operating costs, and indirect costs (e.g., overhead, maintenance, utilities, and rents on land, buildings, or equipment). The formulas differentiate costs for each of the four types of manifests noted above, and the agency’s best estimate of initial manifest user fees is as follows:

Manifest submission type1

Year 1 estimated fee2

Mailed paper manifest3

$20

Image upload of paper manifest

$13

Data file upload of paper manifest

$7

Fully electronic

$4

1 The fee for the manifest submission type will remain the same, regardless of any continuation sheets. [83 FR 428]

2 EPA does not have final budget for the program in FY18, nor does it have all of the contracts in place for setting up and hosting the system and for running the paper processing center. Therefore, these fee estimates should be interpreted as rough approximations of the final fees. EPA will publish a final two-year schedule of user fees on the e-manifest website when more information about the e-manifest budget and contract awards becomes available, which should be around April 1, 2018.

3 Beginning June 30, 2021, EPA will not accept mailed paper manifests from receiving facilities for processing. [new §§264/265.71(a)(2)(v)] However, paper manifests may continue to be used by hazardous waste generators after that date. [83 FR 438]

Source: 83 FR 449, unless otherwise noted.

e-Manifest user fees will be reevaluated every two years and adjusted based on 1) prevailing inflation rates, and 2) revenue recaptures (i.e., adjustments to make up for revenue shortfalls or excesses).

If e-manifest use does not reach 75% of total manifest use after four years of operation, a “highly differentiated” cost formula will be used to calculate subsequent fees. This approach will add the nonlabor operating costs of the paper processing center, along with the human labor costs, to the cost burden to be borne by paper-submission types. EPA estimates that this highly differentiated model will add about $2 to the mailed paper manifest fee.

Changes to the Paper Manifest

After the e-manifest system becomes operational on June 30, 2018, there will no longer be a requirement for a copy of the paper manifest to be sent to the destination state (page 1 or top copy of the existing 6-copy paper manifest) or to the generator state (page 2 of the existing paper manifest). Instead, both destination and generator states will be able to receive their copies from the e-manifest system. Therefore, by June 30, 2018, approved printers must make available to users a 5-copy manifest indicating that the top copy (page 1) must be submitted to the e-manifest system. (Pages 3–6 of the existing paper manifest will become pages 2–5 of the new manifest.) Paper manifest users must begin using the new 5-copy form with this revised copy distribution notation beginning June 30, 2018. [83 FR 437]

Although not proposed for public comment, EPA used the January 2018 user-fee rule to delete the appendix to Part 262. That appendix was previously used to provide sample images of the top copy of the paper manifest and continuation sheet and instructions for their completion. With the implementation of the e-manifest system, the agency has designated a web address—www.epa.gov/e-manifest—where it will publish and make available to users the currently required manifest forms and instructions, serving the same purpose as the appendix to Part 262. [83 FR 445]

Miscellaneous Issues

The January 2018 rule revised the existing manifest regulations in the following ways.

As mentioned earlier, some state-only regulated wastes are required to be shipped under a manifest via state law. For shipments of these state-only regulated wastes that cross state lines, the receiving facility must close out the manifest (whether it is required by either the origination or destination state) by completing the facility portion, signing and dating the facility certification, and submitting the signed, final copy to the e-manifest system for processing (and, of course, fee assessment). These requirements apply to receiving facilities under federal law, even if the law of the destination state would not require a manifest for the wastes involved and would not require the facility to take any action with respect to the manifest required by the origination state. This submittal of a final copy to the e-manifest system will satisfy all requirements for return copies to tracking states. [83 FR 425]

For return shipments to generators of rejected hazardous wastes, the rejecting facility (usually a TSD facility) is responsible for payment of the fee for the return manifest. The billable event for this fee is the rejecting facility’s submission of the original manifest indicating the rejection and the submission of a copy of the return-shipment manifest. A chargeback by the TSD facility to its generator customer is an option to balance the equities of the resulting fees. [83 FR 426]

At this time, EPA will not handle LDR paperwork at the e-manifest processing center. Any plans to process LDR-related documents via the e-manifest system will await a later phase of system implementation. Therefore, LDR documentation should remain at TSD facilities and not be submitted with manifests to the e-manifest system. [83 FR 428]

EPA will not begin collecting export manifests described in Part 262, Subpart H on the June 30, 2018 e-manifest system implementation date. Instead, the agency will announce the implementation/compliance date and appropriate processing fee for the electronic submission of export manifests in a future rulemaking. Until that occurs, export manifests should continue to be completed as paper documents. [83 FR 421]

Effective Date and State Implementation

The effective date of the final rule is June 30, 2018, coinciding with the launch date of the e-manifest system. On that date, EPA will begin collecting fees to recover the costs of developing and operating the system. Most of the regulatory changes promulgated in the final rule are issued under the authority of the e-Manifest Act. These provisions will be implemented and enforced by EPA in all states beginning on the June 30, 2018 effective date. States must adopt the e-Manifest Act-based provisions of this final rule in order to enforce them under state law and to maintain manifest program consistency. However, EPA will implement and enforce these provisions until states modify their authorized programs to adopt these provisions.

There are two groups of provisions in the final rule that can be administered and enforced only by EPA and not by authorized states: 1) the revised printing specifications for the paper manifest, and 2) the fee methodology and related fee implementation provisions contained in new Parts 264/265, Subpart FF. Although states cannot receive authorization to administer or enforce EPA’s e-manifest program user fees, authorized state programs must still include the content of, or references to, the Subpart FF requirements.

One provision in the rule is based on the 1976 “base RCRA” statutory authority and not on the e-Manifest Act. This is the revision to §263.21(b), addressing en route changes to transporters. Because this provision is promulgated under base RCRA program authority, this change will not become effective in an authorized state until it is adopted by the state. States must adopt this regulatory change to maintain manifest program consistency. In Alaska and Iowa, this regulation is effective on June 30, 2018.

 


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