In its latest rulemaking to implement the 2016 amendments to the Toxic Substances Control Act (TSCA), the EPA is proposing a fee structure to partly defray the Agency’s administrative costs. The fee authority was authorized by Congress to provide the Agency with a sustainable source of funds to fulfill its legal obligations, mainly under three TSCA sections—Section 4 (applicable to persons required to submit information by test rule, test order, or enforceable consent agreement; Section 5 (applicable to persons who submit notification of or information related to intent to manufacture a new chemical or significant new use of a chemical); and Section 6 (applicable to a person who manufactures or processes a chemical substance subject to a risk evaluation, including a risk evaluation conducted at the request of a manufacturer). The proposal also discusses estimated Agency costs under Section 14, which addresses claims of confidential business information (CBI).
The proposed fee structure would cover fiscal years (FYs) 2019, 2020, and 2021; over that period, the Agency estimates its costs to administer the four sections at $80 million. The amendments direct that the EPA collect 25 percent of its cost. The EPA must also reevaluate and adjust, as necessary, the fees every 3 years. Under the proposed fee structure, the Agency anticipates it will collect $20.5 million annually. Before establishing new fees or revising any existing fees, the EPA must consult with chemical manufacturers and processors or their representatives.
Current Fee Structure
Before passage of the amendments, the EPA had no authority to defray the costs of its TSCA activities through user fees. Mainly, since 1988, fees for persons who submit notices under Section 5 (e.g., chemical premanufacture notices (PMNs)) were capped at $2,500; the Section 5 fee for small business was capped at $100 per notice. Under this schedule, the Agency says it has consistently generated approximately $1.1 million annually in fee revenue. This revenue goes to the General Fund of the U.S. Treasury, not to the EPA.
Fee Categories
The Agency is proposing to expand the categories of activities for which fees are collected as follows:
- Section 4. The proposed fees are $10,000 for a test order; $32,000 for a test rule; and $25,000 for an enforceable consent agreement.
- Section 5. The fee proposed for each PMN, significant new use notice (SNUN), and microbial commercial activity notice (MCAN) is $16,000. The proposed fee for each low-exposure/low-release exemption (LoREX), low-volume exemption (LVE), test-marketing exemption (TME), certain new microorganism (Tier II) exemption, film article exemption, and TSCA experimental release application (TERA) is $4,700.
- Section 6. Total fees collected for a risk evaluation requested by manufacturers are estimated at $1.3 million for chemicals included in the TSCA Work Plan for Chemical Assessments: 2014 Update and $2.6 million for chemicals not included in the Work Plan. The Agency says it estimates receiving a total of five manufacturer requests for chemical risk evaluations during the next 3 years—two for risk evaluations of Work Plan chemicals and three for risk evaluations of chemicals not in the Work Plan. The estimated $20.5 million total for all fees collected does not include fees collected for manufacturer-requested risk evaluations.
The EPA is not proposing to charge an additional fee for submissions and activities that contain CBI.
Small Businesses
Also, as required by the amendments, the EPA must establish discounted fees for small businesses. Proposed discounted fees include $1,950 for Section 4 test orders and $2,800 for Section 5 PMNs. No small business discounts are proposed for manufacturer-requested risk evaluations. Under the proposal, a small business would be defined as a person’s whose average total annual sales over the person’s 3 fiscal years preceding the date the fee is assessed are less than $91 million.
The prepublication version of the fee schedule proposal is here.