1236 Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 262, 263, 264, 265, 266, 

and 271 

[EPA–HQ–RCRA–2005–0018; FRL–9098–7] 

RIN 2050–AE93 

Revisions to the Requirements for: 

Transboundary Shipments of 

Hazardous Wastes Between OECD 

Member Countries, Export Shipments 

of Spent Lead-Acid Batteries, 

Submitting Exception Reports for 

Export Shipments of Hazardous 

Wastes, and Imports of Hazardous 

Wastes 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This rule amends certain 

existing regulations promulgated under 

the hazardous waste provisions of the 

Resource Conservation and Recovery 

Act (RCRA) regarding hazardous waste 

exports from and imports into the 

United States. Specifically, the 

amendments implement recent changes 

to the agreements concerning the 

transboundary movement of hazardous 

waste among countries belonging to the 

Organization for Economic Cooperation 

and Development (OECD), establish 

notice and consent requirements for 

spent lead-acid batteries intended for 

reclamation in a foreign country, specify 

that all exception reports concerning 

hazardous waste exports be sent to the 

International Compliance and 

Assurance Division in the Office of 

Enforcement and Compliance 

Assurance’s Office of Federal Activities 

in Washington, DC, and require U.S. 

receiving facilities to match EPAprovided import consent documentation 

to incoming hazardous waste import 

shipments and to submit to EPA a copy 

of the matched import consent 

documentation and RCRA hazardous 

waste manifest for each import 

shipment. 

DATES: This final rule is effective July 7, 

2010. The incorporation by reference of 

certain publications listed in the rule is 

approved by the Director of the Federal 

Register as of July 7, 2010. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–RCRA–2005–0018. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the RCRA Docket, EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270). 

FOR FURTHER INFORMATION CONTACT: 

Laura Coughlan, Materials Recovery and 

Waste Management Division, Office of 

Resource Conservation and Recovery 

(5304P), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460; telephone 

number: (703) 308–0005; fax number: 

(703) 308–0514; e-mail address: 

coughlan.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Final Rule Apply to Me? 

B. List of Acronyms Used in This Final 

Rule 

C. What are the Statutory Authorities for 

This Final Rule? 

II. Background 

A. OECD Revisions 

B. SLAB Revisions 

C. Exception Reports for Hazardous Waste 

Exports 

D. Documenting Hazardous Waste Import 

Shipments 

E. Proposed Rule 

III. Summary of the Final Rule 

A. Changes to 40 CFR 262.10(d) 

B. Changes to 40 CFR Part 262, Subpart E 

C. Changes to 40 CFR Part 262, Subpart H 

D. Changes to 40 CFR 263.10(d) 

E. Changes to 40 CFR 264.12(a)(2) and 40 

CFR 265.12(a)(2) 

F. Changes to 40 CFR 264.71(a)(3) and 40 

CFR 265.71(a)(3) 

G. Changes to 40 CFR 266.80(a) 

H. Changes to 40 CFR 271.1 

IV. Discussion of Comments Received in 

Response to the Proposed Rulemaking 

and the Agency’s Responses 

A. OECD Revisions 

B. SLAB Revisions 

C. Export Exception Report Technical 

Correction and Import Revisions 

V. Future Rulemaking 

VI. Costs and Benefits of the Final Rule 

A. Introduction 

B. Analytical Scope 

C. Cost Impacts 

D. Benefits 

VII. State Authorization 

A. Applicability of Rules in Authorized 

States 

B. Effect on State Authorization 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. General Information 

A. Does This Final Rule Apply to Me? 

1. OECD Revisions 

The revisions regarding the OECD in 

this final rule affect all persons who 

export or import hazardous waste, 

export or import universal waste, or 

export spent lead-acid batteries (SLABs) 

destined for recovery operations in 

OECD Member countries, except for 

Mexico and Canada. Any transboundary 

movement of hazardous wastes between 

the United States and either Mexico or 

Canada will continue to be governed (or 

addressed) by their respective bilateral 

agreements and applicable regulations. 

Potentially affected entities may 

include, but are not limited to: 

Industry sector NAICS SIC 

Utilities ..................................................................................................................................................................................... 221100 4939 

Petroleum and Coal Products Manufacturing ......................................................................................................................... 324 29 

Chemical Manufacturing .......................................................................................................................................................... 325100 28 

Primary Metal Manufacturing ................................................................................................................................................... 331 33 

Fabricated Metal Product Manufacturing ................................................................................................................................ 332 34 

Machinery Manufacturing ........................................................................................................................................................ 333 35 

Computer and Electronic Product Manufacturing ................................................................................................................... 334110 357 


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Industry sector NAICS SIC 

Electrical Equipment, Appliance, and Component Manufacturing .......................................................................................... 335 36 

Transportation Equipment Manufacturing ............................................................................................................................... 336 37 

Miscellaneous Manufacturing .................................................................................................................................................. 339900 39 

Scrap and Waste Materials ..................................................................................................................................................... 423930 5093 

Material Recovery Facilities ..................................................................................................................................................... 562920 4953 

2. SLAB Revisions 

The revisions regarding SLABs in this 

final rule affect all persons who export 

SLABs for reclamation in any foreign 

country. Potentially affected entities 

may include, but are not limited to: 

Industry sector NAICS SIC 

Hazardous Waste Collectors ................................................................................................................................................... 562112 4212 

Recyclable Material Hauling, Long-Distance ........................................................................................................................... 484230 4213 

Batteries, Automotive, Merchant Wholesalers ........................................................................................................................ 423120 5013 

Lead-acid Storage Batteries, Manufacturing ........................................................................................................................... 335911 3691 

Automotive Parts, Accessories, and Tire Stores ..................................................................................................................... 441310 5013 

Tire Dealers ............................................................................................................................................................................. 441320 5014 

All other General Merchandise Stores .................................................................................................................................... 452990 5399 

New Car Dealers ..................................................................................................................................................................... 441110 5511 

Recyclable Material Wholesaler .............................................................................................................................................. 423930 5093 

Other Waste Collection ............................................................................................................................................................ 562119 4212 

Recyclable Material Collection ................................................................................................................................................ 562111 4212 

Services, Solid Waste Collection Marinas ............................................................................................................................... 713930 4493 

General Freight Trucking, Long-Distance, TL ......................................................................................................................... 484121 4213 

General Freight Trucking, Long-Distance, LTL ....................................................................................................................... 484122 4213 

Specialized Freight Trucking ................................................................................................................................................... 484200 4213 

Freight Carriers (except air couriers), Air Scheduled .............................................................................................................. 481112 4512 

Freight Charter Services, Air ................................................................................................................................................... 481212 4522 

Freight Railways, Line-Haul ..................................................................................................................................................... 482111 4011 

Freight Transportation, Deep Sea, to and from Domestic Ports ............................................................................................ 483113 4424 

Freight Transportation, Deep Sea, to or from Foreign Ports .................................................................................................. 483111 4412 

3. Exception Report Revisions for 

Exports Under Subparts E and H of 40 

CFR Part 262 

The exception report change to 40 

CFR part 262, subpart E and subpart H 

of this final rule affect all persons who 

export hazardous waste, universal 

waste, or SLABs to any foreign country. 

Potentially affected entities may 

include, but are not limited to: 

Industry sector NAICS SIC 

Utilities ..................................................................................................................................................................................... 221100 4939 

Petroleum and Coal Products Manufacturing ......................................................................................................................... 324 29 

Chemical Manufacturing .......................................................................................................................................................... 325100 28 

Primary Metal Manufacturing ................................................................................................................................................... 331 33 

Fabricated Metal Product Manufacturing ................................................................................................................................ 332 34 

Machinery Manufacturing ........................................................................................................................................................ 333 35 

Computer and Electronic Product Manufacturing ................................................................................................................... 334110 357 

Electrical Equipment, Appliance, and Component Manufacturing .......................................................................................... 335 36 

Transportation Equipment Manufacturing ............................................................................................................................... 336 37 

Miscellaneous Manufacturing .................................................................................................................................................. 339900 39 

Scrap and Waste Materials ..................................................................................................................................................... 423930 5093 

4. Import Revisions 

The revisions regarding imports in 

this final rule affect all facilities 

receiving imported hazardous waste 

from a foreign country that must comply 

with either 264.71(a)(3) or 265.71(a)(3). 

This includes those hazardous waste 

import shipments originating in OECD 

Member countries, as well as in nonOECD countries. Potentially affected 

entities may include, but are not limited 

to: 

Industry sector NAICS SIC 

Hazardous Waste Collectors ................................................................................................................................................... 562112 4212 

Recyclable Material Wholesaler .............................................................................................................................................. 423930 5093 

Other Waste Collection ............................................................................................................................................................ 562119 4212 

Recyclable Material Collection Services, Solid Waste Collection ........................................................................................... 562111 4212 

Scrap and Waste Materials ..................................................................................................................................................... 423930 5093 


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1238 Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 

1The Basel Convention on the Control of 

Transboundary Movements of Hazardous Wastes 

and their Disposal is a comprehensive global 

environmental agreement on hazardous and other 

wastes. The Convention has 172 Member countries, 

also known as Parties, and aims to protect human 

health and the environment against the adverse 

effects resulting from the generation, management, 

transboundary movements and disposal of 

hazardous and other wastes. A copy of the 

convention text has been placed in the docket 

established for this rulemaking. More information 

on the Basel Convention may be found at http:// 

www.basel.int. 

Industry sector NAICS SIC 

Material Recovery Facilities ..................................................................................................................................................... 562920 4953 

The lists of potentially affected 

entities in the above tables may not be 

exhaustive. The Agency’s aim is to 

provide a guide for readers regarding 

those entities that potentially could be 

affected by this action. However, this 

action may affect other entities not 

listed in these tables. If you have 

questions regarding the applicability of 

this final rule to a particular entity, 

consult the person listed in the 

preceding section entitled FOR FURTHER

INFORMATION CONTACT. 

B. List of Acronyms Used in This Final 

Rule 

Acronym Meaning 

BCI ........................................................ Battery Council International. 

CBI ........................................................ Confidential Business Information. 

CERCLA ............................................... Comprehensive Environmental Response, Compensation, and Liability Act. 

CFR ...................................................... Code of Federal Regulations. 

EPA ...................................................... U.S. Environmental Protection Agency. 

FR ......................................................... Federal Register. 

HSWA ................................................... Hazardous and Solid Waste Amendments. 

LAB ....................................................... Lead-Acid Battery. 

NAICS ................................................... North American Industrial Classification System. 

NTTAA .................................................. National Technology Transfer and Advancement Act. 

NAFTA .................................................. North American Free Trade Agreement. 

OECD ................................................... Organization for Economic Cooperation and Development. 

OMB ..................................................... Office of Management and Budget. 

OSWER ................................................ Office of Solid Waste and Emergency Response. 

RCRA ................................................... Resource Conservation and Recovery Act. 

RFA ...................................................... Regulatory Flexibility Act. 

SIC ........................................................ Standard Industrial Classification. 

SLAB .................................................... Spent Lead-Acid Battery. 

SBREFA ............................................... Small Business Regulatory Enforcement Fairness Act. 

TRI ........................................................ Toxics Release Inventory. 

UMRA ................................................... Unfunded Mandates Reform Act. 

C. What Are the Statutory Authorities 

for This Final Rule? 

The authority to promulgate this rule 

is found in sections 1006, 2002(a), 

3001–3010, 3013, and 3017 of the Solid 

Waste Disposal Act, as amended by the 

Resource Conservation and Recovery 

Act (RCRA), and as amended by the 

Hazardous and Solid Waste 

Amendments, 42 U.S.C. 6905, 6912, 

6921–6930, 6934, and 6938. 

II. Background 

A. OECD Revisions 

1. What Is the OECD? 

The OECD is an international 

organization established in 1960 to 

assist Member countries in achieving 

sustainable economic growth, 

employment, and an increased standard 

of living, while simultaneously ensuring 

the protection of human health and the 

environment. OECD Member countries 

are concerned with a host of 

international socio-economic and 

political issues, including 

environmental issues. To address these 

issues, the OECD Council may negotiate 

Council Decisions, which are 

international agreements that create 

binding commitments on the United 

States under the terms of the OECD 

Convention, unless otherwise provided 

in the Articles of the 1960 Convention. 

One such Council Decision addresses 

the transboundary movement of waste, 

which is the subject of this final rule. 

There are currently thirty OECD 

Member countries: Australia, Austria, 

Belgium, Canada, the Czech Republic, 

Denmark, Finland, France, Germany, 

Greece, Hungary, Iceland, Ireland, Italy, 

Japan, Luxembourg, Mexico, the 

Netherlands, New Zealand, Norway, 

Poland, Portugal, the Slovak Republic, 

South Korea, Spain, Sweden, 

Switzerland, Turkey, the United 

Kingdom, and the United States. The 

OECD country Web site for each 

Member country may be found at http:// 

www.oecd.org/infobycountry/. 

2. What OECD Decisions Form the Basis 

of the OECD Revisions in This Final 

Rule? 

The current RCRA regulations 

regarding waste shipments destined for 

recovery within the OECD are found in 

40 CFR part 262, subpart H. These 

regulations are based on the March 30, 

1992, ‘‘Decision of the Council C(92)39/ 

FINAL Concerning the Control of 

Transfrontier Movements of Wastes 

Destined for Recovery’’ (hereinafter 

referred to as the 1992 Decision) that 

EPA then promulgated as a final rule 

under RCRA on April 12, 1996 (61 FR 

16289). Since that time, the OECD has 

made a number of changes to the waste 

shipment regime, necessitating changes 

to the RCRA regulations. 

On June 14, 2001, the OECD Council 

amended the ‘‘Decision of the Council 

C(92)39/FINAL Concerning the Control 

of Transfrontier Movements of Wastes 

Destined for Recovery’’ by adopting 

‘‘Revision of Decision C(92)39/FINAL on 

the Control of Transboundary 

Movement of Wastes Destined for 

Recovery Operations’’ (hereafter referred 

to as the 2001 OECD Decision). The goal 

of the 2001 OECD Decision was to 

harmonize the procedures and 

requirements of the OECD with those of 

the Basel Convention 1 and to eliminate 

duplicative activities between the two 


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2Copies of these amendments have been placed 

in the docket established for this rulemaking. 

international organizations as much as 

practical. These changes include 

revisions to the original established 

framework (such as reducing the levels 

of control from a three-tiered system to 

a two-tiered system), while also adding 

entirely new provisions (for example, 

the new certificate of recovery 

requirement). Subsequent to the 2001 

OECD Decision, an addendum, 

C(2001)107/ADD1 (hereafter referred to 

as the 2001 OECD Addendum), which 

consists of revised versions of the 

notification and movement documents 

and the instructions to complete them, 

was adopted by the OECD Council on 

February 28, 2002. The addendum was 

incorporated into the 2001 OECD 

Decision as section C of Appendix 8, 

and the combined version was issued in 

May 2002 as C(2001)107/FINAL. The 

appendices of Decision C(2001)107/ 

Final were amended three times by 

C(2004)20, C(2005)141, and 

C(2008)156.2 The Decision, ‘‘Decision of 

the Council C(2001)107/FINAL, 

Concerning the Control of 

Transboundary Movements of Wastes 

Destined for Recovery Operations, as 

amended by C(2004)20; C(2005)141 and 

C(2008)156,’’ is hereinafter referred to as 

the Amended 2001 OECD Decision. 

B. SLAB Revisions 

1. What are SLABs? 

Lead-acid batteries (LABs) are 

secondary, wet cell batteries that 

contain liquid and can be recharged for 

many uses. They are the most widely 

used rechargeable batteries in the world 

and are mainly used as starting, lighting, 

and ignition (SLI) power batteries found 

in automobiles and other vehicles. A 

rechargeable SLAB is spent if it no 

longer performs effectively and cannot 

be recharged. Battery failure is most 

commonly attributed to water loss and 

grid corrosion during normal use. 

SLABs are considered both solid and 

hazardous wastes under Subtitle C of 

RCRA, because they are classified as 

spent materials that exhibit the toxicity 

characteristic for lead (e.g., D008), and 

the corrosivity characteristic for the 

sulfuric acid electrolyte in the battery 

(e.g., D001). For a full discussion of 

SLAB composition and how SLABs are 

managed, please see Sections II.B.1 and 

II.B.2 of the proposed rule (73 FR 

58393). 

2. How Must a Business Manage SLABs 

Intended for Domestic Recycling or 

Disposal? 

Businesses subject to the RCRA 

hazardous waste regulations may choose 

from three options for managing 

hazardous waste spent lead-acid 

batteries. They may manage the batteries 

under the streamlined standards 

specifically for SLABs found in 40 CFR 

part 266, subpart G, the streamlined 

Universal Wastes standards for all 

hazardous waste batteries found in 40 

CFR part 273, or the full Subtitle C 

hazardous waste management 

regulations found in 40 CFR parts 262– 

265, 267, 268, and 270. For the complete 

discussion of what these requirements 

entail for disposal or recycling within 

the United States, please see Section 

II.B.3 of the proposed rule (73 FR 

58394). 

3. What Does a Business Have To Do 

When Exporting SLABs for Recycling? 

A company seeking to export SLABs 

may choose from the same three 

regulatory options described above. If 

they choose to follow the universal 

waste regulations, exporters of SLABs 

for reclamation are subject to the export 

requirements in 40 CFR part 273 

(including the notice and consent 

requirements) or, if the SLABs are to be 

exported to an OECD Member country 

for recovery, the export requirements 

(including notice and consent) in 40 

CFR part 262, subpart H. The second 

option would be for the export to follow 

the full subtitle C hazardous waste 

export regulations in 40 CFR part 262, 

subparts E or H. Most likely, SLAB 

exporters will choose to follow the 

regulatory provisions specific to SLABs 

in 40 CFR part 266, subpart G. Prior to 

today’s rule, under part 266, SLABs that 

were destined for reclamation were 

exempt from the RCRA export 

requirements in 40 CFR part 262, 

subparts E and H (including the notice 

and consent requirements). Today’s rule 

adds export requirements to part 266 

that mirror those that apply to universal 

waste, as described later in this 

preamble. 

C. Exception Reports for Hazardous 

Waste Exports 

Prior to this final rule, under 40 CFR 

part 262, subparts E and H, exception 

reports were required to be submitted by 

the exporter to the EPA Administrator if 

any of the following occurred: 

(1) The exporter did not receive a 

copy of the RCRA hazardous waste 

manifest (if applicable) signed by the 

transporter identifying the point of 

departure of the waste from the United 

States, within forty-five (45) days from 

the date it was accepted by the initial 

transporter; 

(2) Within ninety (90) days from the 

date the hazardous waste was accepted 

by the initial transporter, the exporter 

did not receive written confirmation 

from the recovery facility that the 

hazardous waste was received; 

(3) The hazardous waste was returned 

to the United States. 

D. Documenting Hazardous Waste 

Import Shipments 

Prior to this final rule, under 

§§ 264.71(a)(3) and 265.71(a)(3), U.S. 

receiving treatment, storage, and 

disposal facilities (TSDFs) had to submit 

a copy of the hazardous waste manifest 

to EPA to document individual 

hazardous waste import shipments 

within 30 days of shipment delivery. 

E. Proposed Rule 

On October 6, 2008, EPA published a 

Federal Register notice seeking 

comment on proposed revisions to the 

requirements regarding the export and 

import of hazardous wastes from and 

into the United States (see 73 FR 58388 

and following pages). First, we proposed 

to modify the requirements concerning 

the transboundary movement of 

hazardous waste destined for recovery 

among Member countries to the OECD 

in order to implement the Amended 

2001 OECD Decision. The changes, 

largely in 40 CFR part 262, subpart H, 

included reducing the number of 

control levels, exempting qualifying 

shipments sent for laboratory analyses 

from certain paperwork requirements, 

requiring recovery facilities to submit a 

certificate of recovery, adding 

provisions for the return or re-export of 

wastes subject to the Amber control 

procedures, and clarifying certain 

existing provisions that were identified 

as potentially ambiguous to the 

regulated community. Second, we 

proposed to amend the regulations in 40 

CFR part 266, subpart G regarding the 

management of SLABs being reclaimed 

to require notice and consent for those 

batteries intended for reclamation in a 

foreign country, mirroring the existing 

export requirements for exports of 

RCRA universal waste batteries, to 

create a more uniform practice for 

exporting SLABs for recovery under 

RCRA. Third, we proposed a technical 

correction in the exception reporting 

requirements of §§ 262.55 and 262.87(b) 

for hazardous waste exports to specify 

that all exception reports submitted to 

EPA be sent to the International 

Compliance and Assurance Division in 

the Office of Enforcement and 

Compliance Assurance’s Office of 

Federal Activities in Washington, DC 

rather than to the Administrator to 

ensure better oversight of return 

shipments to the U.S. and compliance 

with the exception reporting 

requirements without any additional 


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1240 Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 

3The change from ‘‘consignee’’ to ‘‘importer’’ is 

only being made in 40 CFR part 262, subpart H, and 

does not affect the use of consignee in 40 CFR part 

262, subpart E. 

regulatory burden for U.S. exporters. 

Fourth and last, we proposed to amend: 

the hazardous waste import 

requirements in 40 CFR part 262, 

subpart F to require that U.S. importers 

give the initial transporter a copy of the 

EPA-provided documentation 

confirming EPA’s consent to the import 

of the hazardous waste when they 

provide the RCRA hazardous waste 

manifest; and, the import shipment 

document submittal requirements in 

§§ 264.71(a)(3) and 265.71(a)(3) to 

require that the U.S. receiving facility 

submit to EPA a copy of the EPA 

consent documentation along with the 

RCRA hazardous waste manifest within 

thirty days of import shipment delivery. 

Both proposed amendments were 

intended to improve EPA’s oversight of 

such imports. For a more detailed 

description of the proposed revisions, as 

well as the intended benefits of each 

revision, please see Section I.D of the 

proposed rule (73 FR 58390 and 

following pages). 

The Agency received four sets of 

comments in response to its October 6, 

2008 proposal. The more significant 

comments on this proposal are 

addressed later in this preamble, but all 

are addressed in background documents 

for today’s final rule, which are in the 

docket. After considering all comments, 

we are finalizing the revisions 

substantially as proposed, with one 

modification. 

III. Summary of the Final Rule 

A. Changes to 40 CFR 262.10(d) 

This final rule updates § 262.10(d) to 

reflect that export shipments of SLABs 

being managed under 40 CFR part 266, 

subpart G that are destined for recovery 

in any of the OECD Member countries 

listed in § 262.58(a)(1) are now subject 

to 40 CFR part 262, subpart H. This 

change is necessary to conform with the 

scope in the updated § 262.80(a). 

B. Changes to 40 CFR Part 262, 

Subpart E 

This final rule amends the exception 

reporting requirements in § 262.55 to 

specify that all exception reports be 

submitted to the International 

Compliance and Assurance Division in 

the Office of Enforcement and 

Compliance Assurance’s Office of 

Federal Activities in Washington, DC 

rather than to the Administrator. In 

addition, this rule also updates 

§ 262.58(a) to reflect that export 

shipments of SLABs being managed 

under 40 CFR part 266, subpart G that 

are destined for recovery in any of the 

OECD Member countries listed in 

§ 262.58(a)(1) are subject to the 

requirements of subpart H. Finally, this 

rule adds language in § 262.58(b) of 

subpart E to clarify that hazardous waste 

exports subject to subpart E and 

hazardous waste imports subject to 

subpart F are not subject to subpart H 

in order to reduce confusion for U.S. 

exporters and importers. 

C. Changes to 40 CFR Part 262, 

Subpart H 

All but the last three changes 

discussed below are necessary to 

conform to the revisions in the 

Amended 2001 OECD Decision. These 

changes range from substantive 

revisions and amendments to changes in 

terminology to simple editorial changes. 

Collectively, these changes serve to 

implement the Amended 2001 OECD 

Decision, as well as clarify certain 

sections that were previously 

ambiguous to the regulated community. 

Changes to 40 CFR part 262, subpart H 

include: 

1. Changes in Terminology 

In the Amended 2001 OECD Decision, 

the OECD Council updated several 

terms and definitions used in the 1992 

Decision. EPA believes that these 

changes do not result in substantive 

changes to the intent of the 

requirements, but merely bring them in 

line with current terminology used in 

practice and in other international 

agreements. To limit any unnecessary 

confusion between the U.S. regulations 

and those of other OECD Member 

countries and to promote consistency 

with the Amended 2001 OECD 

Decision, this final rule adopts the 

following changes in terminology: 

• ‘‘Transfrontier’’ to ‘‘transboundary’’; 

• ‘‘Tracking document’’ to ‘‘movement 

document’’; 

• ‘‘Amber-list controls’’ to ‘‘Amber 

control procedures’’; 

• ‘‘Notifier’’ to ‘‘exporter’’; and 

• ‘‘Consignee’’ to ‘‘importer.’’ 3

2. The number of different levels of 

control is reduced from three (Green, 

Amber, and Red) to two (Green and 

Amber) and the waste lists have been 

updated. 

The 2001 OECD Decision replaced the 

OECD three-tiered waste list (Green, 

Amber, and Red) system with a twotiered system (Green and Amber) to 

conform to the Basel Convention waste 

lists more closely. Further, the revised 

OECD waste lists, as provided by the 

2004 OECD Amendment, better 

correspond to those of the Basel 

Convention. Accordingly, we are 

making these same conforming changes 

to EPA’s OECD rule. 

Wastes subject to the Green control 

procedures are those wastes listed in 

Parts I and II of Appendix 3 to the 

Amended 2001 OECD Decision. Part I 

contains wastes listed in Annex IX of 

the Basel Convention, to which the 

OECD has made and noted adjustments, 

as appropriate. Part II contains 

additional wastes subject to the Green 

control procedures, which the OECD 

has assessed as not posing any risk to 

human health or the environment under 

its risk criteria. 

Wastes subject to the Amber control 

procedures are those wastes listed in 

Parts I and II of Appendix 4 to the 

Amended 2001 OECD Decision. Part I 

contains wastes listed in Annexes II and 

VIII of the Basel Convention, to which 

the OECD has made and noted 

adjustments, as appropriate. Part II 

contains additional wastes subject to the 

Amber control procedures, which the 

OECD has assessed as posing a risk to 

human health or the environment under 

its risk criteria. Further, all wastes 

formerly appearing on the Red list are 

subject to the Amber control 

procedures. 

U.S. importers and exporters of 

hazardous waste subject to the subpart 

H requirements of 40 CFR part 262 

should be aware that wastes listed in 

Part I of both the new OECD Amber and 

Green waste lists have not retained their 

OECD waste codes. Consequently, the 

relevant Basel waste codes should be 

used when implementing the export and 

import procedures. However, wastes 

listed in Part II of both the new OECD 

Amber and Green waste lists do retain 

their original OECD waste codes, as 

listed in the 1992 Decision. This twopart system is necessary to ensure that 

wastes not yet explicitly listed under 

the Basel Convention will continue to 

have the same level of control applied 

to them when destined for recovery 

under the Amended 2001 OECD 

Decision. 

Both the Green waste list and the 

Amber waste list are cited in § 262.89. 

This rule amends § 262.89(d) to 

incorporate by reference the most 

current OECD waste lists from the 

Amended 2001 OECD Decision. Further, 

the elimination of the Red list allows for 

the consolidation of the provisions 

currently found in § 262.89(b) and (c), 

which appears in new final § 262.89(b). 


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4Section 262.81 in the final revisions to the 

regulatory text in 40 CFR part 262, subpart H 

defines ‘‘OECD Decision’’ as ‘‘Decision of the 

Council C(2001)107/FINAL, Concerning the Control 

of Transboundary Movements of Wastes Destined 

for Recovery Operations, as Amended by C(2004)20; 

C(2005)141 and C(2008)156’’ for the purposes of the 

subpart. 

5Under both the 1992 Decision and the Amended 

2001 OECD Decision, transboundary movements of 

wastes subject to the Amber control procedures may 

only occur under the terms of a valid written 

contract, or chain of contracts, or equivalent 

arrangements between facilities controlled by the 

same legal entity, starting with the exporter and 

terminating at the recovery facility. The contracts 

must: (a) Clearly identify the generator of each type 

of waste, each person who shall have legal control 

of the wastes and the recovery facility; (b) provide 

that relevant requirements of the OECD Decisions 

are taken into account and binding on all parties; 

and (c) specify which party to the contract shall 

assume responsibility for ensuring alternative 

management of the wastes including, if necessary, 

the return of the wastes. 

3. References to Unlisted Wastes Have 

Been Eliminated in Favor of ‘‘Wastes 

Not Covered in Appendices 3 and 4 of 

the OECD Decision’’ 

Section 262.83(d) previously 

addressed the general notification 

requirements for unlisted wastes. 

Today’s rule renumbers this section as 

§ 262.83(c) since the previous 

§ 262.83(c) addressed ‘‘Red-list wastes,’’ 

which is no longer included in the final 

rule. Today’s rule also replaces the term 

‘‘unlisted wastes’’ with the phrase 

‘‘wastes not covered in Appendices 3 

and 4 of the OECD Decision,’’ 4 so that 

wastes not on these lists are not 

automatically subject to the Amber 

control procedures. Rather, ‘‘wastes not 

covered in Appendices 3 and 4 of the 

OECD Decision’’ will be subject to the 

domestic rules and regulations of the 

countries of concern. 

4. Transboundary Movements May Now 

Qualify for a Laboratory Analysis 

Exemption 

The Amended 2001 OECD Decision 

allows Member countries to decide 

through their domestic laws and 

regulations that waste samples normally 

subject to the Amber control procedures 

will only be subject to the Green control 

procedures (e.g., the existing controls 

normally applied in commercial 

transactions) if such samples are 

destined for laboratory analyses to 

assess its physical or chemical 

characteristics, or to determine its 

suitability for recovery operations, and 

providing that the amount of the waste 

samples qualifying for this exemption 

are not more than the minimum 

quantity reasonably needed to perform 

the analyses adequately in each 

particular case up to a maximum of 

twenty-five kilograms (25 kg/55 lbs). 

Analytical samples also must be 

appropriately packaged and labeled and 

must be carried out under the terms of 

all applicable international transport 

agreements. Furthermore, any 

transboundary movement of such 

samples through non-OECD Member 

countries shall be subject to 

international law and to all applicable 

national laws and regulations. 

This final rule allows waste samples 

that are sent for laboratory analyses to 

be controlled under the Green control 

procedures, as opposed to the Amber 

control procedures, provided they meet 

the same conditions as set forth in the 

Amended 2001 OECD Decision. 

U.S. exporters should be aware, 

however, that even if their shipments 

qualify for the laboratory analyses 

exemption under U.S. domestic law, 

some Member countries may elect to 

still apply the Amber control 

procedures to such shipments, requiring 

the exporter of a waste sample for 

laboratory analyses to inform the 

competent authorities of such a 

movement. Therefore, we recommend 

that U.S. exporters check with the 

competent authorities of each country to 

find out if they require the Amber 

control procedures for a sample that 

would qualify for the laboratory 

analyses exemption. 

5. Recovery Facilities Must Submit a 

Certificate of Recovery 

This final rule implements the 

Amended 2001 OECD Decision’s 

requirement that a duly authorized 

representative of the recovery facility 

submit a certificate of recovery to all 

interested parties (i.e., exporter, country 

of export, country of import), 

documenting that recovery of the waste 

has been completed. A valid certificate 

of recovery is defined as a signed, 

written and dated statement that affirms 

that the waste was recovered in the 

manner agreed to by the parties to the 

contract.5 This final rule also requires, 

as does the Amended 2001 OECD 

Decision, that the recovery facility send 

the certificate of recovery as soon as 

possible, but no later than thirty (30) 

days after the completion of recovery 

and no later than one (1) calendar year 

following the receipt of the waste by the 

recovery facility to the exporter and 

competent authorities of the countries of 

export and import by mail, e-mail 

followed by mail, or fax followed by 

mail. This final rule incorporates the 

certificate of recovery provisions of the 

Amended 2001 OECD Decision in 

§ 262.83(e). 

The Amended 2001 OECD Decision 

states that the completion of block 19 of 

the OECD movement document, and the 

submission of signed copies to the 

exporter and relevant competent 

authorities, fulfils the certificate of 

recovery requirement. Although the 

OECD movement document is 

recommended, the Amended 2001 

OECD Decision does not require 

recovery facilities to use it. 

While some recovery facilities may 

not be subject to the import and other 

requirements because they are not 

importing RCRA hazardous waste, these 

entities should be aware that the 

competent authorities of the exporting 

Member countries may still impose the 

conditions outlined in the Amended 

2001 OECD Decision before the 

transactions can be completed. Thus, if 

the waste is considered non-hazardous 

in the United States, EPA would not 

require a certificate of recovery from a 

U.S. facility. However, the competent 

authority of the country of export may 

require a certificate of recovery, and 

may require that the exporter include 

such a requirement in the contract 

between the exporter and importer. 

6. Amendments to the Notification 

Requirements 

The Amended 2001 OECD Decision 

introduced a series of notification 

requirements that oblige EPA to make 

conforming amendments to its 

hazardous waste regulations. 

Specifically, this final rule amends 

§ 262.83(e) (which has been renumbered 

as § 262.83(d)) by incorporating several 

new items that must be included in the 

notification, including: 

• Exporter and importing recovery 

facility e-mail address; 

• E-mail address for importer (if 

different from the importing recovery 

facility); 

• Address, telephone, fax, and e-mail 

of intended transporter(s); 

• Means of transport envisioned; and 

• Specification of the type of recovery 

operation(s) that will be used. 

7. Amendments to Procedures for 

Exports to Pre-Approved Facilities 

Under the Amended 2001 OECD 

Decision and its predecessor, a preapproved recovery facility (also known 

as a pre-consented recovery facility) is 

one that has been identified in advance 

by the competent authority having 

jurisdiction over that facility as 

acceptable for receiving certain 

hazardous waste imports under 

simplified and accelerated notification 

procedures. For these facilities, the 

competent authority must inform the 

OECD secretariat that the facility is preapproved, and the waste types that are 

acceptable for recovery. Pre-approval 

may be granted for a specific time frame 


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6Recovery operations R1 through R11 are defined 

as follows: R1, use as a fuel (other than in direct 

incineration) or other means to generate energy; R2, 

solvent reclamation/regeneration; R3, recycling/ 

reclamation of organic substances which are not 

used as solvents; R4, recycling/reclamation of 

metals and metal compounds; R5, recycling/ 

reclamation of other inorganic materials; R6, 

regeneration of acids or bases; R7, recovery of 

components used for pollution abatement; R8, 

recovery of components used from catalysts; R9, 

used oil re-refining or other reuses of previously 

used oil; R10, land treatment resulting in benefit to 

agriculture or ecological improvement; and, R11, 

uses of residual materials obtained from any of the 

operations numbered R1–R10. 

and may be revoked at any time by the 

relevant competent authority. 

The Amended 2001 OECD Decision 

established a time period for objection 

to transboundary movements to preapproved facilities and lengthened the 

allowable coverage period for 

notifications. Specifically, the Decision 

established a time period of seven (7) 

working days during which the relevant 

competent authorities may object to the 

transboundary movements of waste to 

pre-approved facilities. The Decision 

also established that the allowable 

coverage period for general notifications 

(or the period of time for which consent 

may be granted) may extend up to three 

(3) years. Today’s final rule amends the 

current regulations to incorporate these 

changes in § 262.83(b)(2)(ii) to reflect 

the seven (7) day time period and in 

§ 262.83(b)(2)(i) to reflect the allowable 

coverage period of up to three (3) years 

for notifications. 

8. New Procedures for the Pretreatment 

of Hazardous Wastes at R12/R13 

Recovery Facilities 

The final rule incorporates the 

Amended 2001 OECD Decision’s new 

requirements for R12 and R13 recovery 

facilities. R12 and R13 recovery 

facilities are transfer and storage/ 

accumulation facilities, respectively, 

that do not recover the wastes 

themselves. Because hazardous wastes 

destined for recovery may have to 

undergo treatment before a R1–R11 6

recovery facility actually recovers them, 

the OECD considers R12 and R13 

facilities as ‘‘intermediate or temporary 

operations.’’ The primary reason for the 

new requirements is to ensure that the 

subsequent R1–R11 recovery operation 

receives the hazardous waste and 

completes its recovery in an 

environmentally sound manner. 

Specifically, when the notification 

document lists an R12/R13 recovery 

facility, the exporter must indicate in 

the same notification document the 

recovery facility or facilities where the 

subsequent R1–R11 recovery operation 

takes place or may take place. In 

addition, the R12/R13 recovery facility 

shall: 

• Certify the receipt of the hazardous 

waste by sending a copy of the duly 

completed movement document within 

three (3) working days of the receipt of 

such wastes to the exporter and all 

competent authorities concerned; 

• Retain the original movement 

document for three (3) years; 

• Certify the completion of the R12/ 

R13 recovery operation by submitting a 

certificate of recovery as soon as 

possible, but no later than thirty (30) 

days after the completion of the R12/ 

R13 recovery operation at that facility 

and no later than one (1) calendar year 

following the receipt of the waste by the 

R12/R13 recovery facility; and 

• Send the certificate of recovery to 

the exporter and to the competent 

authorities of the countries of export 

and import by either mail, e-mail 

followed by mail, or by fax followed by 

mail. 

The control procedures applied to the 

transboundary movement of hazardous 

waste from an R12/R13 recovery facility 

to a subsequent R1–R11 recovery facility 

vary depending on whether these 

facilities are located within the same 

Member country or in a different 

Member country. 

When the subsequent R1–R11 

recovery facility is located within the 

same Member country, the R12/R13 

recovery facility must obtain from the 

subsequent R1–R11 recovery facility a 

certificate that the ‘‘final’’ recovery of the 

hazardous waste at that facility has been 

completed within one (1) calendar year 

following the delivery of the hazardous 

waste to the R1–R11 facility. The format 

of the certificate of recovery is not fixed, 

but it must, at a minimum, identify the 

code number of the notification 

document and the serial number of the 

movement documents to which it 

pertains. The R12/R13 recovery facility 

must then transmit the certification 

document prepared by the R1–R11 

recovery facility to the competent 

authorities of the countries of import 

and export as soon as possible, but no 

later than one (1) calendar year 

following the delivery of the hazardous 

waste to the R1–R11 recovery facility. 

When the subsequent R1–R11 facility 

is not located in the same Member 

country as the R12/R13 facility, a new 

notification must be made for the 

transboundary movement of hazardous 

waste by the R12/R13 recovery facility. 

In addition, the applicable procedures 

differ depending upon the country 

where the final recovery operation 

occurs. In particular, if the final R1–R11 

recovery facility is located in the initial 

country of export, then the normal 

Amber control procedures shall apply. 

In this case, the R12/R13 facility must 

submit a new notification document to 

its competent authority and obtain 

consent from its competent authority 

and from the initial country of export to 

the export of the hazardous waste back 

to that country for final recovery. If, 

however, the final R1–R11 recovery 

facility is located in a country different 

from the initial country of export, then 

the Amber control procedures shall 

apply, but also the movement will in 

effect be treated as a ‘‘re-export’’ of waste 

to a third country. In this case, not only 

is a new notification document 

required, but the competent authority of 

the initial country of export must also 

be notified of the transboundary 

movement, and consent must be 

obtained from the original country of 

export and the new countries of import, 

export, and transit. For example, if a 

hazardous waste is exported from the 

United States to a R12/R13 facility in 

France, and then will be sent to a 

subsequent R1–R11 recovery facility in 

Germany, the R12/R13 facility in France 

must submit a notification to and obtain 

consent from France (the new country of 

export), the United States (the original 

country of export) and Germany (the 

new country of import for final 

recovery). 

The final rule incorporates all of these 

requirements in § 262.82(f). 

9. New Provisions Regarding Mixtures 

of Hazardous Wastes 

The Amended 2001 OECD Decision 

contains controls and provisions related 

to the mixture of hazardous waste. 

Specifically, the Amended 2001 OECD 

Decision defines a mixture of hazardous 

waste as one that results from the 

intentional or unintentional mixing of 

two or more different hazardous wastes. 

However, under the Amended 2001 

OECD Decision, a single shipment of 

hazardous wastes, consisting of two or 

more wastes, where each is separated, is 

not considered a mixture of hazardous 

waste. 

The Amended 2001 OECD Decision 

also provides that: 

• A mixture of two or more Green 

wastes should be subject to the Green 

control procedures. However, the 

regulated community should be aware 

that some OECD Member countries may 

require, by domestic law that mixtures 

of different Green wastes be subject to 

the Amber control procedures. 

• A mixture consisting of a Green 

waste and more than a ‘‘de minimis’’ 

amount of Amber waste is subject to the 

Amber control procedures. In the 

absence of internationally accepted 

criteria, the term ‘‘de minimis’’ should 


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be defined according to national 

regulations and procedures. 

• A mixture containing two or more 

Amber wastes is subject to the Amber 

control procedures. 

In this final rule, EPA has revised the 

text in § 262.82(a) to clarify that only 

those wastes and waste mixtures 

considered hazardous under U.S. 

national regulations will be subject to 

the Amber control procedures within 

the United States. This is consistent 

with longstanding EPA policy, and 

should minimize confusion for the 

regulated community. For example, 

under the existing RCRA hazardous 

waste regulations, any mixture of an 

Amber waste that exhibits one or more 

of the hazardous characteristics of 

ignitability, corrosivity, reactivity, or 

toxicity under RCRA with a Green waste 

shall be considered an Amber waste if 

the mixture still exhibits one or more of 

the RCRA hazardous waste 

characteristics and, thus, be subject to 

the Amber control procedures. 

Conversely, if the resulting mixture no 

longer exhibits one or more of the RCRA 

hazardous characteristics, it will instead 

be considered a Green waste, and be 

subject to the Green control procedures. 

Because other OECD Member 

countries may require that the mixtures 

listed above (that the U.S. sometimes 

considers subject to the Green control 

procedures) be subject to the Amber 

control procedures, the final rule 

includes notes stating that other OECD 

Member countries may subject such 

mixtures to the Amber control 

procedures. In such cases, U.S. 

importers and exporters should be 

prepared to follow the Amber control 

procedures within those OECD Member 

countries. 

Finally, the Amended 2001 OECD 

Decision requires that notification for a 

transboundary movement of a mixture 

of hazardous wastes falling under the 

Amber control procedures should be 

made by the person performing the 

mixing activity (the generator of the 

mixture) or any other person acting as 

an exporter in place of the person 

performing the mixing activity. In the 

notification, relevant information on 

each fraction of the waste, including its 

code numbers, has to be given in order 

of importance. This final rule imposes 

these requirements in 40 CFR 

262.82(a)(3). 

10. New Provisions Regarding the 

Return and Re-Export of Hazardous 

Wastes Subject to the Amber Control 

Procedures 

This final rule adopts the Amended 

2001 OECD Decision’s more precise 

provisions (than the earlier 1992 

Decision) on measures to be taken in 

case a transboundary movement of 

hazardous waste is subject to the Amber 

control procedures and cannot be 

completed as intended (e.g., not in 

accordance with the notification, 

consents given by the competent 

authorities, or the terms of the contract). 

There may be a number of reasons for 

this non-completion, for example, an 

accident during the transport of the 

hazardous waste, improper notification, 

or any illegal action taken by someone 

involved with the movement of the 

hazardous waste. 

The Amended 2001 OECD Decision 

provides that if this uncompleted 

movement of hazardous waste (hereafter 

referred to as the ‘‘incident’’), takes place 

in the country of import, the competent 

authority of that country shall 

immediately inform the competent 

authority of the country of export. The 

competent authorities of the concerned 

countries are to cooperate in resolving 

the incident by making all necessary 

arrangements to ensure the best 

alternative management of the 

hazardous waste. If alternative 

arrangements cannot be made to recover 

these wastes in an environmentally 

sound manner in the country of import, 

the hazardous waste must be returned to 

the country of export or re-exported to 

a third country. 

(a) Return of Hazardous Waste to the 

Country of Export 

Under the Amended 2001 OECD 

Decision, the return of the hazardous 

waste to the country of export is to take 

place within ninety (90) days from the 

time when the country of export was 

informed of the incident, unless the 

concerned countries agree to another 

period of time. The competent 

authorities of both countries of export 

and transit (if applicable) are to be 

informed about the return of the 

hazardous waste and the reasons for its 

return. These authorities are prohibited 

from opposing or preventing the return 

of the hazardous waste to the country of 

export, so long as the movement 

complies with the requirements set out 

by the country of export’s domestic law. 

If the waste is returned through a 

country of transit, the competent 

authority of that country is to be 

notified and consent obtained in 

accordance with the normal Amber 

control procedures. 

When the incident occurs in the 

United States, the U.S. importer must 

inform EPA of the need to return the 

shipment. EPA will then inform the 

countries of export and transit, citing 

the reason(s) for returning the waste, 

and request written consent to the 

return by any transit country as needed. 

If the return shipment will cross any 

transit country, the return shipment 

may only occur after EPA provides a 

copy of the transit country’s consent to 

the U.S. importer. The U.S. importer 

must complete the return within ninety 

(90) days from the time EPA informs the 

country of export of the need to return 

the waste unless otherwise informed by 

EPA in writing of an alternate timeframe 

for the return. 

When the incident involves an export 

shipment from the United States, the 

U.S. exporter must provide for the 

return of the hazardous waste shipment 

within ninety (90) days from the time 

the country of import informs EPA of 

the need to return the shipment unless 

otherwise informed by EPA in writing of 

an alternate timeframe for the return. 

The U.S. exporter must also submit an 

exception report to EPA. 

(b) Re-Export of Hazardous Waste From 

the Country of Import to a Third 

Country 

Under the Amended 2001 OECD 

Decision, the re-export from the country 

of import to a third country is 

considered a new transboundary 

movement of hazardous waste. As a 

result, the Amber control procedures are 

applicable. The initial importer becomes 

the exporter of the hazardous waste and, 

consequently, assumes all 

responsibilities as an exporter. In 

addition, the notification must also 

include the competent authority of the 

initial country of export who, in 

accordance with the Amber control 

procedures, may object to the re-export 

if the movement does not comply with 

the requirements set out by its domestic 

law. Re-export of a hazardous waste 

shipment from the United States to a 

third country may therefore only occur 

after the importer (acting as the new 

exporter) submits a notification to EPA 

in compliance with the notice and 

consent procedures of § 262.83 and 

obtains consent from the original 

country of export, the new country of 

import, and any transit countries. 

(c) Return of Hazardous Waste From the 

Country of Transit to the Country of 

Export 

If the incident takes place in the 

country of transit, the exporter should 

make arrangements so that the 

hazardous waste still can be recovered 

in an environmentally sound manner in 

the recovery facility of the importing 

country to where it was originally 

destined. The competent authority of 

the country of transit is to immediately 

inform the competent authorities of the 

countries of export and import and any 


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other countries of transit. If the exporter 

is unable to arrange for the recovery of 

the hazardous waste in an 

environmentally sound manner at the 

recovery facility to where it was 

originally destined, the hazardous waste 

should be returned, adhering to 

subsection (a) above, to the country of 

export within ninety (90) days from the 

time when the country of export was 

informed of the incident or such other 

period of time as the concerned 

countries agree. The competent 

authorities of the country of export and 

the countries of transit are to be 

informed of the return, but they are 

prohibited from opposing or preventing 

the return of the hazardous wastes to the 

country of export, so long as the 

movement complies with the 

requirements set out by the country of 

export’s domestic law. 

When the United States is the transit 

country where the incident occurs, the 

U.S. transporter must inform EPA of the 

need to return the shipment. EPA will 

then inform the country of export, citing 

the reason(s) for returning the waste. 

The U.S. transporter must then 

complete the return within ninety (90) 

days from the time EPA informs the 

country of export of the need to return 

the waste unless otherwise informed by 

EPA in writing of an alternate timeframe 

for the return. 

When the waste shipment from the 

incident originated in the United States, 

the U.S. exporter must provide for the 

return of the hazardous waste shipment 

within ninety (90) days from the time 

the country of transit informs EPA of the 

need to return the shipment unless 

otherwise informed by EPA in writing of 

an alternate timeframe for the return. 

The U.S. exporter must also submit an 

exception report to EPA. 

This final rule sets forth these reexport and return provisions of the 

Amended 2001 OECD Decision in 

§§ 262.82(c), 262.82(d), and 262.82(e). 

11. SLABs Are Now Covered by EPA’s 

OECD Rule 

This final rule updates § 262.80(a) and 

§ 262.89(a) to reflect that export 

shipments of SLABs being managed 

under 40 CFR part 266, subpart G that 

are destined for recovery in any of the 

OECD Member countries listed in 

§ 262.58(a)(1) are subject to 40 CFR part 

262, subpart H. 

12. Technical Corrections to EPA’s 

OECD Rule 

This final rule makes several 

technical corrections to EPA’s current 

OECD rule, including corrections to 

capitalization, syntax, and punctuation 

errors. In these changes, EPA is not 

making any substantive revisions, but is 

seeking to eliminate any confusion on 

the part of the regulated community by 

striving for consistency both within the 

regulations and with the terms of the 

Amended 2001 OECD Decision. Some 

examples of these types of revisions 

include changing ‘‘Subpart’’ to ‘‘subpart,’’ 

‘‘OECD member’’ to ‘‘OECD Member,’’ 

and ‘‘thirty days’’ to ‘‘thirty (30) days.’’ 

13. Change to the Submittal Address for 

Exception Reports 

This final rule amends the exception 

reporting requirements in § 262.87(b) to 

specify that all exception reports are to 

be submitted to the International 

Compliance and Assurance Division in 

the Office of Enforcement and 

Compliance Assurance’s Office of 

Federal Activities in Washington, DC 

rather than the Administrator. 

D. Changes to 40 CFR 263.10(d) 

This final rule updates § 263.10(d) to 

reflect that export shipments of SLABs 

being managed under 40 CFR part 266, 

subpart G that are destined for recovery 

in any of the OECD Member countries 

listed in § 262.58(a)(1) are now subject 

to 40 CFR part 262, subpart H. This 

change is necessary to conform with the 

scope in the updated § 262.80(a). 

E. Changes to 40 CFR 264.12(a)(2) and 

40 CFR 265.12(a)(2) 

This final rule amends §§ 264.12(a)(2) 

and 265.12(a)(2) by, among other things, 

requiring owners or operators of 

recovery facilities to submit a certificate 

of recovery as soon as possible after the 

recovery is completed, but no later than 

thirty (30) days after the completion of 

recovery and no later than one (1) 

calendar year following the receipt of 

the hazardous waste. This change is 

necessary to conform to the Amended 

2001 OECD Decision. 

F. Changes to 40 CFR 264.71(a)(3) and 

40 CFR 265.71(a)(3) 

This final rule amends §§ 264.71(a)(3) 

and 265.71(a)(3) by requiring owners or 

operators of facilities receiving imported 

hazardous wastes to submit to EPA a 

copy of the relevant written 

documentation of EPA’s consent to the 

import along with a copy of the RCRA 

hazardous waste manifest for the 

incoming shipment within thirty (30) 

days of shipment delivery. This will 

enable EPA to match the individual 

shipment manifest to the consent for an 

annual notice from a foreign exporter. 

G. Changes to 40 CFR 266.80(a) 

EPA is amending the table located at 

40 CFR 266.80 by including two 

additional rows to the current table. 

These additional rows contain the new 

provisions that require exporters and 

transporters of SLABs being sent to a 

foreign country for reclamation to meet 

the universal waste requirements 

concerning the export of SLABs for 

reclamation. 

Specifically, exporters will need to 

either comply with the requirements in 

40 CFR part 262, subpart H when the 

shipments are destined to any of the 

OECD Member countries listed in 

§ 262.58(a)(1), or with the following 

requirements when the shipments are 

destined for any country not listed in 

§ 262.58(a)(1): 

• Comply with the requirements 

applicable to a primary exporter in 40 

CFR 262.53, 262.56(a)(1) through (4), 

(6), and (b) and 262.57; 

• Export such SLABs only upon 

consent of the receiving country and in 

conformance with the EPA 

Acknowledgement of Consent as 

defined in subpart E of 40 CFR part 262 

of this chapter; and 

• Provide a copy of the EPA 

Acknowledgment of Consent for the 

shipment to the transporter transporting 

the shipment for export. 

The transporter of SLABs being sent 

to a foreign country for reclamation will 

need to comply with the applicable 

requirements in 40 CFR part 262, 

subpart H when the shipments are 

destined to any of the OECD Member 

countries listed in § 262.58(a)(1). For 

export shipments of SLABs destined for 

a country not listed in § 262.58(a)(1), 

such as Canada or Mexico, the 

transporter will not be able to accept a 

shipment if the transporter knows the 

shipment does not conform to the EPA 

Acknowledgment of Consent, and will 

have to ensure that: 

• A copy of the EPA 

Acknowledgment of Consent 

accompanies the shipment; and 

• The shipment is delivered to the 

foreign facility designated by the person 

initiating the shipment. 

The new requirements at 40 CFR 

266.80 will ensure greater protection of 

human health and the environment 

through notification, tracking, and 

management of SLABs. In addition to 

harmonizing the RCRA hazardous waste 

regulations for SLABs with the 

notification and consent requirements 

in the RCRA universal waste rules, 

today’s final rule harmonizes the export 

requirements for SLABs with the 

Amended 2001 OECD Decision. (Note 

that the exemption from the RCRA 

hazardous waste manifest requirements 

for exporters and transporters of SLABs 

for reclamation will continue to remain 

in effect, although SLAB shipments for 

recovery to any of the OECD Member 


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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 1245 

countries listed in § 262.58(a)(1) must be 

accompanied by a movement document 

per § 262.84 that is separate from the 

RCRA hazardous waste manifest.) 

The table located at 40 CFR 266.80 

describes the various kinds of SLAB 

handlers and their respective legal 

requirements. Some SLAB handlers may 

find that more than one description 

located in the table applies to their 

SLAB management activities. It is the 

SLAB handler’s responsibility to read 

all seven descriptions and carefully 

consider any and all requirements 

which may apply. 

1. Export Shipments of SLABs to OECD 

Member Countries Listed in 

§ 262.58(a)(1) 

Exporters and transporters of SLABs 

destined for reclamation in any of the 

OECD Member countries listed in 

§ 262.58(a)(1) will have to comply with 

all applicable sections of 40 CFR part 

262, subpart H for wastes subject to the 

Amber control procedures. For a 

complete listing of the final OECD 

requirements, exporters and transporters 

should consult the regulatory text for 40 

CFR part 262, subpart H in this final 

rule. In addition to the changes in 

subpart H discussed in earlier sections, 

the applicable Amber control 

procedures include, but are not limited 

to, the following: 

(a) Notification of Intent To Export 

Exporters of SLABs destined for 

reclamation are required to comply with 

the Amber control procedures in 

§ 262.83. Under the Amber control 

procedures, an exporter must submit a 

complete notification to EPA of its 

intent to export at least 45 days before 

the export is scheduled to leave the 

United States (or at least ten days if the 

shipment is going to a pre-approved 

facility in the country of import). The 

notification can cover export activities 

spanning a period of up to and 

including 12 months (or up to three 

years, depending on the procedures of 

the importing country, if the shipment 

is going to a pre-approved facility in the 

country of import). Exporters may use 

the OECD Notification form in 

Appendix 8 of the Amended 2001 OECD 

Decision, or whatever notification form 

may be required by the country of 

import, but are not required by EPA to 

do so. 

A complete notification includes, but 

is not limited to: 

• Contact information and the EPA ID 

number (if applicable) for the exporter; 

• Point of departure from country of 

export; 

• A waste description and quantity of 

the hazardous waste being exported; 

• The RCRA waste code(s) (if 

applicable), United Nations number, 

and OECD waste code for the hazardous 

waste (SLABs are classified as Amber 

waste A1160 under the Amended 2001 

OECD Decision); 

• Planned mode(s) of transportation; 

• Contact information for all intended 

transporters; 

• Contact information and the OECD 

recovery operation code(s) (e.g., R1– 

R13) for both the importer and the final 

recovery facility (if different sites); 

• The requested period of 

exportation; 

• A list of all transit countries, along 

with the points of entry and departure, 

through which the hazardous waste will 

be sent; and 

• A certification by the exporter that 

a contract or chain of contracts or 

equivalent arrangements among all 

parties to the final shipment are in place 

and are legally enforceable in all 

concerned countries. 

If the notification is complete, EPA 

will forward it to the importing country 

and any transit country(ies). Within 

three working days of receiving the 

notification, the importing country must 

send either an Acknowledgement of 

Receipt or a list of items that the 

notification lacks directly to U.S. EPA, 

to the exporter, and to any countries of 

transit. The countries of import and 

transit have thirty (30) days from the 

date on the Acknowledgement of 

Receipt (seven days for shipments going 

to pre-approved facilities) to object or 

consent explicitly to the proposed 

shipment. Any explicit objection or 

consent by the country of import or 

transit will be sent simultaneously to 

U.S. EPA, the exporter, and any other 

interested country (e.g., of import or 

transit). If no objections are submitted 

within the thirty day (30) period (seven 

days for shipments going to preapproved facilities), under the 

provisions of the Amended 2001 OECD 

Decision, tacit (or implied) consent is 

assumed and the movement of the 

hazardous wastes may commence. 

The subsequent SLAB shipments 

must be in accordance with the 

information from the notification that 

was reviewed and approved by the 

receiving country in its consent. Any 

changes to the information listed in the 

notification, such as changes to 

proposed total amounts to be exported 

or the ports of entry to be used, would 

require renotification and shipments 

could not take place until either tacit or 

written consent was obtained. 

(b) Shipment Tracking 

Under § 262.84, shipments of SLABs 

that are exported must be accompanied 

by a movement document from the 

initiation of the shipment until it 

reaches the final recovery facility. This 

movement document is described in 

§ 262.84 and is different from the RCRA 

hazardous waste manifest. Exporters 

may use the OECD Movement form in 

Appendix 8 of the Amended 2001 OECD 

Decision, or whatever movement form 

may be required by the country of 

import, but are not required by EPA to 

use any particular form. Exporters must 

provide the initial transporter with the 

movement document. Transporters are 

prohibited from accepting a shipment of 

SLABs without such a movement 

document, and are required to ensure 

that the movement document 

accompanies the shipment from the 

initiation of the shipment until it 

reaches the final recovery facility. The 

movement document must include all 

the information from the notification, as 

well as the following: 

• Date movement commenced; 

• Name (if not the exporter), address, 

telephone and fax numbers, and e-mail 

of person originating the movement 

document (Note that this person is 

equivalent to the primary exporter 

under 40 CFR part 262, subpart E); 

• Company name and EPA ID number 

(if applicable) of all transporters; 

• Identification (license, registered 

name or registration number) of means 

of transport, including types of 

packaging envisaged; 

• Any special precautions to be taken 

by transporter(s) during transportation; 

• Certification/declaration signed by 

the exporter that no objection to the 

shipment has been lodged; and 

• Appropriate signatures for each 

custody transfer (e.g., transporter, 

importer, and owner or operator of the 

recovery facility). 

(c) Annual Reporting 

Under § 262.87(a), any person 

exporting SLABs who meets the 

definition of primary exporter in 

§ 262.51 or who initiates the movement 

document under § 262.84 will have to 

submit to the International Compliance 

and Assurance Division in the Office of 

Enforcement and Compliance 

Assurance’s Office of Federal Activities 

in Washington, DC, an annual report 

summarizing the types, quantities, 

frequency, and ultimate destination of 

all SLABs exported during the previous 

calendar year. Reports are due by March 

1st of every year. 

(d) Exception Reporting 

Under § 262.87(b), any person 

exporting SLABs who meets the 

definition of primary exporter in 

§ 262.51 or who initiates the movement 


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1246 Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 

7As noted previously, this is equivalent to the 

‘‘importer’’ in the final revisions to 40 CFR part 262, 

subpart H. 

document under § 262.84 must file an 

exception report with the International 

Compliance and Assurance Division in 

the Office of Enforcement and 

Compliance Assurance’s Office of 

Federal Activities in Washington, DC, if 

either of the following occurs: 

• Within ninety (90) days from the 

date the SLAB shipment was accepted 

by the initial transporter, the exporter 

has not received written confirmation 

from the recovery facility that the SLAB 

shipment was received; or 

• The SLAB shipment is returned to 

the United States. 

(e) Recordkeeping 

Under § 262.87(c), any person 

exporting SLABs who meets the 

definition of primary exporter in 

§ 262.51 or who initiates the movement 

document under § 262.84 must keep the 

following records: 

• A copy of each notification of intent 

to export and all written consents 

obtained from the competent authorities 

of countries concerned (e.g., export, 

transit, and import) for a period of at 

least three (3) years from the date the 

SLAB shipment was accepted by the 

initial transporter; 

• A copy of each annual report for a 

period of at least three (3) years from the 

due date of the report; 

• A copy of any exception reports and 

a copy of each confirmation of delivery 

(i.e., movement document) sent by the 

recovery facility to the exporter for at 

least three (3) years from the date the 

SLAB shipment was accepted by the 

initial transporter or received by the 

recovery facility, whichever is 

applicable; and 

• A copy of each confirmation of 

recovery sent by the recovery facility to 

the exporter for at least three (3) years 

from the date that the recovery facility 

completed the processing of the SLAB 

shipment. 

2. Export Shipments of SLABs to 

Countries Not Listed in § 262.58(a)(1) 

(a) Notification of Intent To Export 

Exporters of SLABs destined for 

reclamation in countries not listed in 

§ 262.58(a)(1), such as Canada or 

Mexico, are required to comply with the 

primary exporter notification 

requirements in § 262.53, and may 

export the SLABs only upon consent of 

the receiving country and in 

conformance with the EPA 

Acknowledgement of Consent, as 

defined in 40 CFR part 262, subpart E. 

Specifically, the exporter has to submit 

a complete notification of its intent to 

export to EPA at least 60 days before the 

export is scheduled to leave the United 

States. The notification can cover export 

activities spanning a period of up to and 

including 12 months. This complete 

notification contains: 

• Contact information and the EPA ID 

number (if applicable) for the primary 

exporter; 

• A description and quantity of the 

SLABs to be exported; 

• The RCRA waste code(s) (if 

applicable), U.S. DOT proper shipping 

name, hazard class, and United Nations 

number as identified in 49 CFR parts 

171 through 177; 

• Planned mode(s) of transportation 

and type(s) of containers; 

• A description of the manner in 

which the SLABs will be treated, stored, 

or disposed of (including recovery) in 

the receiving country; 

• The planned frequency and time 

period of exportation; 

• A list of all transit countries 

through which the SLABs will be sent, 

and a description of the approximate 

length of time the hazardous waste will 

remain in each country and the nature 

of its handling while there; 

• All points of entry to and departure 

from each foreign country through 

which the SLABs will pass; and 

• The name and site address of the 

consignee 7 and any alternate consignee. 

If after proper notification, the 

receiving country consents to the receipt 

of the hazardous waste, EPA will 

forward an EPA Acknowledgment of 

Consent to the exporter. If, on the other 

hand, the receiving country objects to 

the receipt of the hazardous waste or 

withdraws a prior consent, EPA will 

notify the exporter in writing. EPA will 

also notify the exporter of any responses 

from transit countries. 

The subsequent SLAB shipments 

must be in accordance with the 

information from the notification that 

was reviewed and approved by the 

receiving country in its consent. Any 

changes to the information listed in the 

notification (with the exception of 

changes to the primary exporter’s 

telephone number, the listed means of 

transportation, or a decrease in the total 

amount to be exported) would require 

renotification and shipments could not 

take place until the exporter received an 

EPA Acknowledgement of Consent for 

the renotification. 

(b) Shipment Documentation and 

Tracking 

Exporters of SLABs must provide a 

copy of the EPA Acknowledgment of 

Consent for the SLAB shipment to the 

transporter transporting the shipment 

for export. Transporters are prohibited 

from accepting a SLAB export shipment 

if the transporter knows the shipment 

does not conform to the EPA 

Acknowledgment of Consent. In 

addition, the transporter must ensure 

that: 

• A copy of the EPA 

Acknowledgment of Consent 

accompanies the SLAB export 

shipment; and 

• The SLAB export shipment is 

delivered to the facility designated by 

the person initiating the shipment. 

Unlike SLAB export shipments to 

countries listed in § 262.58(a)(1) that 

must comply with 40 CFR part 262, 

subpart H, SLAB export shipments 

destined for countries not listed in 

§ 252.58(a)(1) do not have any shipment 

tracking documentation requirements or 

exception reporting requirements 

because they are exempt from the RCRA 

hazardous waste manifest requirements 

and are not required to comply with the 

movement document requirements in 

§ 262.84. 

(c) Annual Reporting 

Exporters of SLABs must follow the 

requirements applicable to a primary 

exporter detailed in § 262.56 ‘‘Annual 

reports’’ (a)(1) through (4), (6), and (b). 

Specifically, exporters will have to file 

with the EPA Administrator an annual 

report summarizing the types, 

quantities, frequency, and ultimate 

destination of all SLABs exported 

during the previous calendar year. 

Reports are due by March 1st of every 

year. 

(d) Recordkeeping 

Under § 262.57, exporters of SLABs 

must keep the following records: 

• A copy of each notification of intent 

to export for at least three years from the 

date the SLAB export shipment was 

accepted by the initial transporter; 

• A copy of each EPA 

Acknowledgment of Consent for at least 

three years from the date the SLAB 

export shipment was accepted by the 

initial transporter; and 

• A copy of each annual report for at 

least three years from the due date of the 

report. 

H. Changes to 40 CFR 271.1 

This final rule amends Table 1 and 

Table 2 of § 271.1 by adding references 

to the revisions which amend 40 CFR 

part 262, subpart E to reflect that 

subpart E implements the Hazardous 

and Solid Waste Amendments of 1984. 


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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 1247 

8 ‘‘Decision-Recommendation of the Council on 

Exports of Hazardous Wastes from the OECD area,’’ 

issued June 5, 1986. This document is available 

online at http://webdomino1.oecd.org/horizontal/ 

oecdacts.nsf/linkto/C(86)64, and a copy has been 

placed in the docket established for this 

rulemaking. 

IV. Discussion of Comments Received 

in Response to the Proposed 

Rulemaking and the Agency’s 

Responses 

The Agency received comments from 

four entities: the Basel Action Network 

(BAN), a nongovernmental organization 

focused on the Basel Convention and in 

particular on the issue of illegal trade in 

hazardous wastes to developing 

countries; the Association of Battery 

Recyclers (ABR), a national trade 

association representing the lead 

recycling industry; Johnson Controls, 

Inc. (JCI), a global supplier of batteries 

to the automotive aftermarket and 

original equipment manufacturers; and 

Dow Chemical Company (DOW), a 

global chemical manufacturer. The 

comments were focused on specific 

issues or provisions in the proposed 

rule. To the extent that comments were 

not submitted on various aspects or 

provisions of the proposal, the Agency 

is finalizing those portions of the 

proposal, as-is, except in one case. That 

exception is discussed in section C 

below. 

A. OECD Revisions 

BAN argued that EPA should subject 

all wastes on the OECD amber list to 

amber control procedures when being 

exported regardless of whether the 

materials are RCRA hazardous wastes. 

This comment is outside the scope of 

this rulemaking, as EPA did not propose 

any changes to the fundamental 

regulatory framework regarding the 

applicability of the OECD provisions in 

40 CFR part 262, subpart H (see Section 

II.A.5 of the proposed rule at 73 FR 

58393). Moreover, it is important to 

recognize that the Amended 2001 OECD 

Decision and its predecessor have long 

recognized and allowed a Member 

country to determine if a waste on an 

OECD list is hazardous based on its 

‘‘national procedures’’ (see Annex I, 

Section II.4 of the ‘‘Decision of the 

Council C(92)39/FINAL Concerning the 

Control of Transfrontier Movements of 

Wastes Destined for Recovery’’ and 

Chapter II, Section B.4 of the Amended 

2001 Decision). Discussion on how 

RCRA implementation of ‘‘national 

procedures’’ impacts transboundary 

movements of wastes subject to the 

RCRA exemptions, exclusions and 

recycling provisions can be found in the 

April 12, 1996, preamble to the original 

OECD rule (61 FR 16290–16316). EPA is 

therefore finalizing the scope of the 

OECD provisions in subpart H, as 

proposed. 

BAN also commented that EPA 

should prohibit all exports of OECD 

amber listed wastes to non-OECD 

countries for any reason. ABR similarly 

commented that EPA should prohibit all 

exports of SLABs to non-OECD 

countries. EPA cannot grant this request 

since the statute does not give EPA the 

legal authority to implement an outright 

ban on hazardous waste exports. 

Specifically, RCRA section 3017 

prohibits exports of hazardous waste 

unless either: (1) The shipments are 

covered under and conform to the terms 

specified in an agreement between the 

U.S. and the receiving country; or (2) 

the exporter has submitted written 

notification to EPA, obtained written 

consent from the receiving country via 

EPA, attached a copy of the written 

consent to the RCRA hazardous waste 

manifest for each shipment, and ensures 

that the shipments comply with the 

terms of the receiving country’s consent. 

Moreover, section 3017 directs the State 

Department, on behalf of EPA, to 

forward a copy of the notification to the 

intended country of import within 30 

days of EPA receiving a complete 

notification concerning a proposed 

waste export that would not be covered 

under the terms of an existing 

international agreement. Therefore, an 

outright ban regarding all exports of any 

individual hazardous waste (e.g. SLABs) 

or all hazardous wastes to non-OECD 

countries would require changes to the 

statutory language and is outside the 

scope of this regulatory action. 

In practice, EPA has rarely received 

inquiries for hazardous waste exports to 

non-OECD countries. When approached 

by potential exporters who ask about 

exporting hazardous wastes to nonOECD countries that are, however, 

parties to the Basel Convention, it is 

EPA’s practice to actively discourage 

such exports by informing them of the 

Basel Convention prohibition on 

transboundary shipments of hazardous 

waste between Basel Parties and a nonParty like the United States in the 

absence of a formal agreement per 

Article 11 of the Basel Convention (e.g., 

the U.S.-Canada bilateral agreement, the 

U.S.-Mexico bilateral agreement, or the 

OECD multilateral agreement). The 

United States has no agreement with a 

non-OECD country for exports of RCRA 

hazardous wastes. A review of 

hazardous waste export notices between 

1995–2007 indicates no approved or 

even proposed exports of RCRA 

hazardous waste to a non-OECD 

country. In the interest of transparency, 

however, EPA intends to post online at 

http://www.epa.gov/epawaste/hazard/ 

international/hazard/index.htm 

summary information for all future 

notices we receive concerning a 

proposed export of RCRA hazardous 

waste to a non-OECD country. The 

online information will list the exporter 

name, exporter address, waste text 

description, proposed receiving country, 

and consent status (e.g., notice 

submitted to foreign country, whether 

the foreign country consents or objects). 

Moreover, EPA’s cover letters for notices 

concerning exports to non-OECD 

countries will remind the countries, 

when appropriate, of the relevant Basel 

hazardous waste listing and the Basel 

Convention prohibition on 

transboundary shipments of hazardous 

waste between Basel Parties and a nonParty like the United States. 

In another comment, BAN asserted 

that EPA has not yet implemented the 

1986 OECD Council DecisionRecommendation C(86)64(final) 8 (‘‘1986 

OECD Decision-Recommendation’’), and 

should do so immediately. This 

comment is outside the scope of this 

rulemaking, as EPA proposed revisions 

to the OECD provisions to implement 

the Amended 2001 OECD Decision. 

Finally, BAN suggested that the U.S. 

should simultaneously ratify the Basel 

Convention and the Basel Ban 

Amendment. However, ratification of 

the Basel Convention, with or without 

the Basel Ban Amendment, would 

require Congressional action to provide 

EPA the legislative authority to 

implement either of these, and thus, is 

outside the scope of this rulemaking. 

Dow stated that it supported EPA 

revising the existing regulations to 

implement the Amended 2001 OECD 

Decision, and that the revisions will 

clarify and streamline the import and 

export process among OECD Member 

countries. 

B. SLAB Revisions 

Three of the commenters recognized 

the need to require notification and 

consent for SLABs being exported for 

reclamation in a foreign country, and all 

four commenters supported EPA 

establishing the notice and consent 

export requirements. 

As part of ABR’s comment suggesting 

that EPA ban all exports of SLABs to 

non-OECD countries (which is 

discussed in the previous section), ABR 

submitted data that analyzed export 

shipments of SLABs and other lead 

scrap based on the harmonized tariff 

code classifications between 2006–2008. 

The data indicated shipments of lead 

scrap and/or SLABs to non-OECD 


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9See June 25, 1985, memo from John H. Skinner, 

Director of the Office of Solid Waste to Harry 

Seraydarian, Director, Toxics and Waste 

Management Division, EPA Region IX, 

‘‘Determining Who Assumes Generator 

Responsibilities for Importations of Hazardous 

Waste.’’ 

countries (e.g., China and India). ABR 

asserted that this data demonstrates that 

many exporters were mislabeling their 

SLAB shipments as non-battery scrap, 

and that EPA might be underestimating 

the amount of SLABs that were exported 

for reclamation between 2006–2008. 

However, after reviewing the analysis 

conducted by ABR, who generally 

supports the proposed rule, we do not 

believe that ABR’s data would lead to a 

significantly different answer, and cause 

EPA to reconsider its position. In 

particular, ABR’s data indicated total 

exports of SLABs and lead scrap were 

approximately 220,000 metric tons in 

2006 and approximately 250,000 metric 

tons in 2007, with about 8% of the total 

exports in 2006 going to non-OECD 

countries. In comparison, EPA’s data on 

SLAB exports estimated that 269,171 

metric tons were exported in 2006, and 

that 1.77% went to non-OECD 

countries. Because the maximum annual 

amount of SLABs exported between 

2006–2007 based on ABR’s data is less 

than the annual amount based on EPA’s 

data, the Agency believes it most 

appropriate that the data used in the 

economic analysis for the proposed rule 

should continue to be used, and not 

revised to include the ABR data in the 

economic analysis for the final rule. As 

a general note, if anyone has specific 

knowledge pertaining to specific export 

shipments that they believe are in 

violation of the RCRA hazardous waste 

regulations, we encourage them to 

submit it using EPA’s Web site at http:// 

www.epa.gov/compliance/complaints/ 

index.html. 

ABR further commented that adding 

export requirements to 40 CFR part 266, 

subpart G that reference the 40 CFR part 

262 requirements was confusing, and 

instead recommended that EPA simply 

require that all SLABs destined for 

export to be managed as Universal 

Waste batteries under 40 CFR part 273. 

EPA does not agree that requiring all 

SLABs that will be exported in the 

future be managed under 40 CFR part 

273 would be easier or less confusing. 

EPA’s policy has long allowed collectors 

and managers of SLABs destined for 

recycling to choose either Part 273 or 

Part 266 (see Section IV.B.2.b of the 

1995 Final Universal Waste Rule at 60 

FR 25504 and following pages). We 

believe that having the same export 

requirements for SLAB exports in 40 

CFR part 273 and 40 CFR part 266, 

subpart G is the most straightforward 

approach to ensuring that SLAB exports 

for reclamation are appropriately 

controlled, and the references to 

requirements in 40 CFR part 262 should 

be no more confusing than the 

previously established references to 40 

CFR parts 261 and 268. EPA is therefore 

finalizing the 40 CFR part 266, subpart 

G requirements as proposed. 

JCI commented that a three-year time 

period for notice and consent of exports 

(as opposed to a one-year time period) 

would reduce the burden on U.S. 

exporters while still providing sufficient 

notification to the importing country of 

proposed shipments. While the 

Amended 2001 OECD Decision does 

allow importing countries to issue 

extended consents that last for up to 

three years when the proposed 

shipment is destined for a facility that 

the importing country has ‘‘preapproved’’ for such imports, OECD 

countries are neither required to preapprove facilities nor to issue such 

extended consents. The international 

agreements covering exports from the 

United States that are in place with 

Canada, Mexico, and the OECD all 

specify a one-year time period as the 

standard maximum length of time that 

a notification and consent can cover. 

Consistent with those agreements and 

with all other RCRA export regulatory 

requirements in 40 CFR parts 261, 262 

and 273, EPA is therefore retaining the 

one-year time period for SLABs being 

exported under 40 CFR part 266, 

subpart G. 

Dow made a general comment of 

support for the revisions to the SLAB 

regulations. 

C. Export Exception Report Technical 

Correction and Import Revisions 

BAN and Dow both made a general 

comment of support for the proposed 

technical corrections regarding export 

exception reports and import consent 

documentation submissions, as 

proposed. Therefore, EPA is finalizing 

the technical corrections as proposed. 

The final rule however, does not 

include the proposed requirement in 40 

CFR part 262, subpart F that RCRA 

hazardous waste importers give a copy 

of the EPA-provided import consent 

documentation to the initial transporter 

along with the RCRA hazardous waste 

manifest. 

According to longstanding EPA 

policy, any party who helped arrange 

for the importation (e.g., a broker, a 

transporter, or the waste management 

facility), may be considered an 

importer.9 Because EPA’s consents are 

currently communicated only to the 

competent authority of the exporting 

country, the proposal stated that EPA 

would need to provide or otherwise 

make available to U.S. importers the 

documentation confirming the Agency’s 

consent. We asked for comment in the 

proposed rule on how best to provide 

the consent documentation to the RCRA 

importer, but received no comments on 

this issue. Foreign notices we receive 

regarding proposed imports of 

hazardous waste do not generally 

identify the party acting as the importer 

under the RCRA regulations, but the 

notices always have to list the foreign 

generator, the waste to be imported, the 

intended management of the waste, and 

the U.S. TSDF that will dispose of or 

recover the imported hazardous waste. 

Since we should be able to reliably 

identify the TSDF, and the TSDF should 

have enough knowledge of their 

individual customers and contracts to 

match up the incoming shipment 

manifests with the EPA-provided import 

consent documentation, we have 

decided to provide the import consent 

documentation directly to the TSDF 

listed on each consent document and 

require each TSDF receiving hazardous 

waste from a foreign source to send back 

a copy of the relevant import consent 

documentation along with a signed copy 

of the RCRA hazardous waste manifest 

within 30 days of delivery. Because 

receiving facilities would have received 

the consent documentation directly 

under the proposal for those instances 

when they were acting as the RCRA 

importer of record, making this change 

is a logical outgrowth of the proposal 

and does not require a supplemental 

notice. 

V. Future Rulemaking 

1. Changes to OECD Member Country 

List 

Qualified countries may be invited to 

accede to the OECD Convention as new 

Members. The OECD Convention 

defines qualified countries as those that 

have demonstrated the basic values 

shared by all Members: An open market 

economy, democratic pluralism, and 

respect for human rights. Any decision 

to invite a new country to become a 

Member of the OECD must be 

unanimous, although abstentions may 

be allowed. Thus, no new Member may 

be admitted over the objection of the 

United States (or any other Member 

country). 

In order to accommodate changes in 

OECD membership as quickly as 

possible, EPA will publish in the 

Federal Register any future 

amendments to the list of OECD 

Member countries set forth in 


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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 1249 

10Secretarı ́a de Medio Ambiente y Recursos 

Naturales (SEMARNAT). 

11Cost Assessment for the Final Rule on Exports 

and Imports of Hazardous Waste Destined for 

Recovery Among OECD Countries, Exports of Spent 

Lead-Acid Batteries from the U.S., and Import 

Consent Documentation. 

§ 262.58(a)(1), as a final rule without 

prior notice and opportunity for 

comment. EPA believes that the Agency 

would be able to make a ‘‘good cause’’ 

finding under the Administrative 

Procedure Act (APA) (5 U.S.C. 

553(b)(3)(B) to make these future 

amendments without prior notice and 

comment. EPA believes notice and an 

opportunity for comment on future 

amendments to § 262.58(a)(1) to reflect 

the updates to the OECD list of Member 

countries would be unnecessary, 

because the United States, as an OECD 

Member country, is legally obligated to 

implement OECD Decisions with 

respect to all OECD Member countries. 

2. Changes to OECD Waste List 

The OECD waste list is incorporated 

by reference and cited in § 262.89(d). If 

the OECD amends its waste list in the 

future by decision of the OECD Council 

(with the concurrence of the United 

States), EPA will publish a notice of 

these amendments in the Federal 

Register as a final rule without prior 

notice and an opportunity for comment. 

EPA believes that the Agency would be 

able to make a ‘‘good cause’’ finding 

under the Administrative Procedure Act 

(APA) (5 U.S.C. 553(b)(3)(B)) to make 

these future amendments without prior 

notice and comment because the 

purpose of § 262.89(d) is solely 

informational—to provide an up-to-date 

reference of the OECD waste list. Public 

comment on such updates is 

unnecessary, as EPA would have no 

discretion to modify this list. 

VI. Costs and Benefits of the Final Rule 

A. Introduction 

The value of any regulatory action is 

traditionally measured by the net 

change in social welfare that it 

generates. The Agency’s economic 

assessment conducted in support of this 

final action evaluates costs, cost savings, 

benefits, and other impacts, such as 

environmental justice, children’s health, 

unfunded mandates, regulatory takings, 

and small entity impacts. To conduct 

this analysis, we developed and 

implemented a methodology for 

examining the impacts, and followed 

appropriate guidelines and procedures 

for examining equity considerations, 

children’s health, and other impacts. 

B. Analytical Scope 

This analysis assesses the final 

integration of the Amended 2001 OECD 

Decision into the existing U.S. 

regulations governing shipments 

(export/import/transit) of hazardous 

wastes destined for recovery between 

the U.S. and other OECD Member 

countries. In addition, we assess the 

newly final export regulations for 

SLABs to OECD and non-OECD 

countries. Also incorporated into the 

analysis is the requirement that a 

receiving facility subject to 40 CFR parts 

264 or 265 submit to EPA a copy of the 

documentation confirming EPA’s 

consent to the import when it submits 

to EPA the RCRA hazardous waste 

manifest for the import shipment of 

hazardous waste. Finally, this action 

revises the current language in §§ 262.55 

and 262.87(b) to require exception 

reports to be submitted directly to the 

International Compliance and 

Assurance Division in the Office of 

Enforcement and Compliance 

Assurance’s Office of Federal Activities 

in Washington, DC, rather than to the 

EPA Administrator. There is no 

discernable cost impact associated with 

this final requirement for exception 

reports to be submitted directly to the 

Director. 

First, we assessed potential cost 

impacts (positive and negative) of the 

final revisions to the OECD rule, 

including: 

• Exemptions for wastes destined for 

laboratory analyses, 

• The requirement to provide a 

certificate of recovery, 

• Information collection requirements 

associated with the exchange and 

accumulation recovery operations, and 

• The notification requirements 

related to the return of wastes. 

Next, we assessed potential cost 

impacts (positive and negative) of the 

final revisions to the SLAB regulations, 

including: 

• Notification requirements for SLAB 

exporters, 

• The renotification requirements 

associated with any changes to the 

original SLAB export notification, 

• The annual reporting requirements, 

• Additional reporting requirements 

(if requested by EPA), and 

• SLAB exporter recordkeeping 

requirements. 

Finally, we analyzed the final 

requirements that a receiving facility 

subject to 40 CFR parts 264 or 265 

submit to EPA a copy of the 

documentation confirming EPA’s 

consent to the import when it submits 

to EPA the RCRA hazardous waste 

manifest for the import shipment of 

hazardous waste. 

We also included an estimate for 

potentially affected entities to read the 

regulation, which is, by default, a 

necessary requirement for 

understanding the regulation. Cost 

impacts associated with reading the 

regulation are assessed for exporters, 

importers, and transporters. 

C. Cost Impacts 

The total incremental cost for the 

OECD portion of the final rule during 

the first year of implementation, 

including reading the rule, is estimated 

to be $14,494. This is a net impact 

estimate that includes a total net 

incremental cost increase to the 

regulated community of $13,656, and a 

total net cost increase to EPA of $838. 

The total incremental annual net cost 

for the OECD portion after the first year 

of implementation, excluding reading 

the rule, is estimated to be $9,700. 

The total incremental cost for the 

SLAB portion of the final rule during 

the first year of implementation, 

including reading the rule, is estimated 

at $850,000. The first year total 

incremental cost is expected to be about 

$780,000 for the affected U.S. industry 

and about $71,000 for EPA. The total 

incremental annual cost after the first 

year of implementation, excluding 

reading the rule, is estimated to be 

$400,000. 

The combined total cost of the final 

rule (OECD portion, plus SLAB portion, 

plus import consent documentation 

portion) is estimated at $910,000 for the 

first year. Approximately 93% of this 

total is attributable to the SLAB portion 

of the rule, followed by the EPA import 

consent documentation requirements 

representing about 5% of the total. The 

OECD portion accounts for less than 2% 

of the total first year cost of the rule. 

After the first year, the total incremental 

cost of the final rulemaking is estimated 

at $460,000. 

Cost estimates presented in this 

section are based on our estimates for 

the number of potentially affected 

importers, exporters, and transporters. 

Numerous data sources were used in the 

derivation of these estimates, including: 

RCRAInfo, the Waste International 

Tracking System (WITS), industry 

consultations, the Biennial Report, the 

International Trade Commission (ITC), 

Environment Canada, and 

SEMARNAT10 data. A full explanation 

of the data sources, analytical 

methodology, assumptions, and 

limitations associated with the findings 

presented above is presented in our Cost 

Assessment 11 document prepared in 

support of this final action. This 

document is available in the docket to 

today’s rule. 


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D. Benefits 

We have prepared a qualitative 

assessment of the benefits anticipated 

from this action. Overall, this action is 

expected to result in improved 

regulatory efficiency of the affected 

materials, while ensuring improved data 

collection and enhanced enforcement 

capabilities. Specific benefits include 

the following: 

• Increasing regulatory efficiency by 

implementing provisions in the 

Amended 2001 OECD Decision that 

were meant to clarify the scope of 

control and make the control procedures 

more precise; 

• Helping to improve market 

efficiency by allowing exporters to ship 

wastes more quickly and store for 

shorter periods of time; 

• Encouraging the environmentally 

sound recovery of hazardous wastes, 

thereby reducing the risks associated 

with treatment and disposal; and 

• Providing for the improved ability 

to acquire information regarding the 

quantities of SLABs exported from the 

U.S. and the destination facilities to 

which the SLABs are exported. 

VII. State Authorization 

A. Applicability of Rules in Authorized 

States 

Under section 3006 of RCRA, EPA 

may authorize qualified States to 

administer their own hazardous waste 

programs in lieu of the Federal program 

within the State. Following 

authorization, EPA retains enforcement 

authority under sections 3008, 3013, 

and 7003 of RCRA, although authorized 

States have primary enforcement 

responsibility. The standards and 

requirements for State authorization are 

found at 40 CFR part 271. 

Prior to enactment of the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), a State with final RCRA 

authorization administered its 

hazardous waste program entirely in 

lieu of EPA administering the Federal 

program in that State. The Federal 

requirements no longer applied in the 

authorized State, and EPA could not 

issue permits for any facilities in that 

State, since only the State was 

authorized to issue RCRA permits. 

When new, more stringent Federal 

requirements were promulgated, the 

State was obligated to enact equivalent 

authorities within specified time frames. 

However, the new Federal requirements 

did not take effect in an authorized State 

until the State adopted the Federal 

requirements as State law. 

In contrast, under RCRA section 

3006(g) (42 U.S.C. 6926(g)), which was 

added by HSWA, new requirements and 

prohibitions imposed under HSWA 

authority take effect in authorized States 

at the same time that they take effect in 

unauthorized States. EPA is directed by 

the statute to implement these 

requirements and prohibitions in 

authorized States, including the 

issuance of permits, until the State is 

granted authorization to do so. While 

States must still adopt more stringent 

HSWA related provisions as State law to 

retain final authorization, EPA 

implements the HSWA provisions in 

authorized States until the States do so. 

Authorized States are required to 

modify their programs only when EPA 

enacts Federal requirements that are 

more stringent than existing Federal 

requirements. RCRA section 3009 

allows the States to impose standards 

more stringent than those in the Federal 

program (see also 40 CFR 271.1). 

Therefore, authorized States may, but 

are not required to, adopt Federal 

regulations, both HSWA and nonHSWA, that are considered less 

stringent than previous Federal 

regulations. 

B. Effect on State Authorization 

Because of the Federal government’s 

special role in matters of foreign policy, 

EPA does not authorize States to 

administer Federal import/export 

functions in any section of the RCRA 

hazardous waste regulations. This 

promotes national coordination, 

uniformity and the expeditious 

transmission of information between the 

United States and foreign countries. 

Although States do not receive 

authorization to administer the Federal 

government’s export functions in 40 

CFR part 262, subpart E, import 

functions in 40 CFR part 262, subpart F, 

import/export functions in 40 CFR part 

262, subpart H, or the import/export 

related functions in any other section of 

the RCRA hazardous waste regulations, 

State programs are still required to 

adopt those provisions in today’s rule 

that are more stringent than existing 

Federal requirements to maintain their 

equivalency with the Federal program 

(see for example, 40 CFR 271.10(e)). 

Today’s rule contains many 

amendments to 40 CFR part 262, 

subpart H, a number of which are more 

stringent. The rule also contains 

amendments to § 262.10, § 262.55, 

§ 262.58, § 263.10(d), § 264.12(a)(2), 

§ 264.71, § 265.12(a)(2), and § 265.71, 

almost all of which are more stringent. 

The States that have adopted 40 CFR 

part 262, subparts E and H, 40 CFR part 

263, 40 CFR part 264 or 40 CFR part 265 

must adopt the provisions listed above 

that are more stringent. In addition, 

States that have adopted management 

standards for spent lead-acid batteries 

analogous to 40 CFR part 266, subpart 

G must adopt the changes in today’s 

rule which are more stringent. 

States are not required to adopt the 

amendments in this rule that are not 

more stringent. However, EPA strongly 

encourages States to incorporate all the 

import and export related requirements 

into their regulations for the 

convenience of the regulated 

community and for completeness, 

particularly where a State has already 

incorporated 40 CFR part 262, subparts 

E, and H, the import/export manifest 

and OECD movement document related 

requirements in § 263.10(d), the import 

manifest and OECD movement 

document submittal requirements in 

§§ 264.12(a)(2), 264.71, 265.12(a)(2), and 

265.71, or the management provisions 

for SLABs in 40 CFR part 266, subpart 

G. When a State adopts the import/ 

export provisions in this final rule, care 

should be taken not to replace Federal 

or international references with State 

terms. 

The provisions of today’s notice take 

effect in all States on July 7, 2010, since 

these import and export requirements 

will be administered by the Federal 

government as a foreign policy matter, 

and will not be administered by States. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ This action may raise novel 

legal or policy issues [3(f)(4)] arising out 

of legal mandates, although it is not 

economically significant. Accordingly, 

EPA submitted this action to the Office 

of Management and Budget (OMB) for 

review under EO 12866. Any changes 

made in response to OMB’s 

recommendations have been 

documented in the docket for this 

action. 

This final rule is projected to result in 

a net increase in costs to certain 

importers, exporters, and transporters of 

affected hazardous wastes. Increased 

costs are also projected for the Federal 

government. The total net cost of this 

rule is estimated to be $910,000 during 

the first year following rule 

implementation. Exporters are projected 

to account for approximately 69 percent 

of this total. Benefits of this action 

include increased regulatory efficiency, 

reduced risks associated with the 

treatment and disposal of hazardous 

wastes, and improved data collection. 


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12This $100 million threshold applies to both 

costs, and cost savings. 

13Cost Assessment for the Final Rule on Exports 

and Imports of Hazardous Waste Destined for 

Recovery Among OECD Countries, Exports of Spent 

Lead-Acid Batteries from the U.S., and Import 

Consent Documentation (Cost Assessment). 

The total net cost estimate for this 

rule is significantly below the $100 

million threshold 12 established under 

part 3(f)(1) of the Order. Thus, this rule 

is not considered to be an economically 

significant action. However, in an effort 

to comply with the spirit of the Order, 

we have prepared an economic 

assessment 13 in support of this final 

rule. The RCRA docket established for 

today’s rulemaking contains a copy of 

this document. 

B. Paperwork Reduction Act 

The information collection 

requirements in this rule have been 

submitted for approval to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. The information collection 

requirements are not enforceable until 

OMB approves them. The Information 

Collection Request (ICR) document 

prepared by EPA has been assigned EPA 

ICR number 2308.02. 

The final rule requires that the 

affected sources submit the following: 

• Under the final OECD revisions: 

U.S. recovery facilities will have to 

submit a certificate of recovery to the 

foreign exporter, and to the competent 

authority of the country of export and 

EPA, as soon as possible, but no later 

than thirty (30) days after the 

completion of recovery and no later 

than one (1) calendar year following 

receipt of the waste; U.S. facilities that 

exchange or accumulate waste 

shipments (e.g., R12/R13 facilities) 

before final recovery at another facility 

(e.g., R1–R11 facilities) will have to 

prepare and provide a certificate of 

recovery for the R12/R13 recovery 

operations, and provide and maintain a 

copy of the certificate of recovery for the 

subsequent R1–R11 recovery operations; 

U.S. recovery facilities, including R12/ 

R13 facilities, that must re-export or 

otherwise return the hazardous waste 

shipment will have to submit new 

notification documents and comply 

with the associated Amber control 

procedures; and U.S. exporters will 

have to keep records of the additional 

certifications of recovery and any R12/ 

R13 certifications they receive from 

recovery facilities in other OECD 

Member countries. 

• Under the final SLAB revisions: 

SLAB exporters will have to comply 

with the full subpart H requirements if 

going to the OECD Member countries 

listed in § 262.58(a)(1) (e.g., submitting 

notices, originating a movement 

document for each shipment, keeping 

records of all confirmations of receipt 

and recovery they receive, submitting 

exception reports and annual reports, 

and recordkeeping); and comply with 

portions of the subpart E requirements 

if going elsewhere (e.g., submitting 

notices, providing a copy of EPA’s 

Acknowledgement of Consent for each 

shipment, submitting annual reports 

and recordkeeping). 

• Under the final import 

documentation revisions: U.S. receiving 

facilities will have to submit to EPA 

copies of the documentation confirming 

EPA’s consent to the import each time 

they submit to EPA a copy of the RCRA 

hazardous waste manifest for each 

hazardous waste import shipment 

within thirty (30) days of shipment 

delivery. 

All affected sources will have to 

retain records of this paperwork for a 

period of three (3) years, which is 

consistent with the RCRA hazardous 

waste requirements of §§ 262.53, 262.56, 

262.57, 262.83, 262.87, 264.71 and 

265.71. The collection of the requested 

information is mandatory, as it is 

needed by EPA as a part of its overall 

compliance and enforcement program 

for the protection of human health and 

the environment. 

The estimated annual public reporting 

burden for the new paperwork 

requirements in the final rule is 4.63 

hours/year per respondent under the 

final OECD revisions; 20.74 hours/year 

per respondent under the final SLAB 

revisions; and 8.44 hours/year per 

respondent under the final import 

consent documentation. The annual 

public recordkeeping burden is 

estimated to average 10.20 hours/year 

per respondent under the final OECD 

revisions, and 0.25 hours/year per 

respondent under the final SLAB 

revisions. The total annual public 

burden is estimated to be 14,854 hours 

at a cost of $832,400 during the first 

year of implementation, and 8,799 hours 

at a cost of $381,400 after the first year. 

The capital and start-up costs plus total 

operation and maintenance costs are 

expected to be negligible. Burden is 

defined at 5 CFR 1320.3(b). 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. When 

this ICR is approved by OMB, the 

Agency will publish a technical 

amendment to 40 CFR part 9 in the 

Federal Register to display the OMB 

control number for the approved 

information collection requirements 

contained in this final rule. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

We have determined that a substantial 

number of potentially affected small 

businesses (importers, exporters, and 

transporters) will not experience 

significant negative economic impacts. 

For the purpose of our impact analyses, 

small business is defined either by the 

number of employees or by the dollar 

amount of sales. The level at which a 

business is considered small is 

determined for each North American 

Industrial Classification System 

(NAICS) code by the Small Business 

Administration. No small governmental 

jurisdiction or small not-for-profit 

organizations are expected to be affected 

by this action. 

While a significant number of 

exporters may be small businesses, the 

results of our analysis indicate that the 

cost to individual small entities in each 

potentially affected sector (as identified 

by NAICS codes) is likely to be 

insignificant. This determination was 

made by comparing annual compliance 

costs under the rule to the average 

annual sales of small business in the 

industry sectors likely affected by the 

rule. According to the U.S. Small 

Business Administration’s small 

business size standards, firms in most of 

these industry sectors are classified as a 


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‘‘small business’’ if they have fewer than 

750 employees. For purposes of this 

analysis, the Agency examined a subset 

of small entities expected to face the 

largest relative impacts as measured by 

cost to sales ratios. The average annual 

gross sales of the potentially impacted 

small companies within this subset with 

fewer than 20 employees were found to 

range from $0.4 million to $4.1 million, 

depending upon the NAICS sector. The 

annual compliance costs for these 

companies, as a percentage of average 

annual gross sales, was found to range 

from 0.01 percent to 0.08 percent. The 

regulatory flexibility screening analysis 

prepared in support of this 

determination is incorporated into the 

Cost Assessment, which is available in 

the docket established for this rule. 

D. Unfunded Mandates Reform Act of 

1995 

This action contains no Federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or Tribal 

governments or the private sector. 

UMRA does not apply to rules that are 

necessary for the national security or the 

ratification or implementation of 

international treaty obligations (e.g., the 

Amended 2001 OECD Decision, the 

U.S.-Canada bilateral waste agreement). 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. Finally, this action is also 

not subject to the requirements of 

section 203 of UMRA because it 

contains no regulatory requirements that 

might significantly or uniquely affect 

small governments. As explained 

previously, EPA does not authorize 

States to administer Federal import/ 

export functions in any section of the 

RCRA hazardous waste regulations 

because of the Federal government’s 

special role in matters of foreign policy. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. Specifically, 

this final rule does not have Federalism 

implications because the State and local 

governments do not administer the 

export and import requirements under 

RCRA. Thus, Executive Order 13132 

does not apply to this action. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This final rule does not have Tribal 

implications, as specified in Executive 

Order 13175. No Tribal governments are 

known to own or operate businesses 

that may be affected by this rule. Thus, 

Executive Order 13175 does not apply 

to this final rule. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in Executive Order 12866, and 

because the Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children 

residing in the United States. This rule 

is intended to improve regulatory 

efficiency, enhance waste tracking 

procedures, and increase accountability 

among all parties associated with 

international shipments, and does not 

directly affect the level of protection 

provided to human health or the 

environment in the United States. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)) because it is not a significant 

regulatory action under Executive Order 

12866. This rule will not seriously 

disrupt energy supply, distribution 

patterns, prices, imports or exports. In 

fact, this rule is designed to improve 

regulatory efficiency and improve 

information collection, in part by 

implementing revisions and 

clarifications to the existing regulations. 

I. National Technology Transfer 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This final rulemaking does not 

involve technical standards. Therefore, 

EPA did not consider the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order (EO) 12898 (59 FR 

7629 (Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

EPA has determined that this final 

rule will not have disproportionately 

high and/or adverse human health or 

environmental effects on minority or 

low-income populations because it does 

not directly affect the level of protection 

provided to human health or the 

environment in the United States. This 

rule is intended to improve regulatory 

efficiency, enhance waste tracking 

procedures, and increase accountability 

among all parties associated with 

international shipments. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this rule and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). This rule 

will be effective July 7, 2010. 

List of Subjects 

40 CFR Part 262 

Environmental protection, Exports, 

Hazardous materials transportation, 

Hazardous waste, Imports, 

Incorporation by reference, International 


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organizations, Labeling, Packaging and 

containers, Recycling, Reporting and 

recordkeeping requirements. 

40 CFR Part 263 

Environmental protection, Hazardous 

materials transportation, Hazardous 

waste, Imports. 

40 CFR Part 264 

Environmental protection, Hazardous 

waste, Imports, Packaging and 

containers, Reporting and recordkeeping 

requirements. 

40 CFR Part 265 

Environmental protection, Hazardous 

waste, Imports, Packaging and 

containers, Reporting and recordkeeping 

requirements. 

40 CFR Part 266 

Environmental protection, Exports, 

Spent lead-acid batteries, Recycling, 

Waste treatment and disposal. 

40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Hazardous materials transportation, 

Hazardous waste, Intergovernmental 

relations, Penalties, Reporting and 

recordkeeping requirements. 

Dated: December 23, 2009. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter 1 of the Code 

of Federal Regulations is amended as 

follows. 

PART 262—STANDARDS APPLICABLE 

TO GENERATORS OF HAZARDOUS 

WASTE 

1. The authority citation for part 262 

continues to read as follows: 

Authority: 42 U.S.C. 6906, 6912, 6922– 

6925, 6937, and 6938. 

2. Section 262.10(d) is amended by 

revising paragraph (d) to read as 

follows: 

§ 262.10 Purpose, scope, and applicability. 

* * * * * 

(d) Any person who exports or 

imports wastes that are considered 

hazardous under U.S. national 

procedures to or from the countries 

listed in § 262.58(a)(1) for recovery must 

comply with subpart H of this part. A 

waste is considered hazardous under 

U.S. national procedures if the waste 

meets the Federal definition of 

hazardous waste in 40 CFR 261.3 and is 

subject to either the Federal RCRA 

manifesting requirements at 40 CFR part 

262, subpart B, the universal waste 

management standards of 40 CFR part 

273, State requirements analogous to 40 

CFR part 273, the export requirements 

in the spent lead-acid battery 

management standards of 40 CFR part 

266, subpart G, or State requirements 

analogous to the export requirements in 

40 CFR part 266, subpart G. 

* * * * * 

3. 262.55 is amended by revising the 

introductory text to read as follows: 

§ 262.55 Exception reports. 

In lieu of the requirements of 

§ 262.42, a primary exporter must file an 

exception report with the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, if 

any of the following occurs: 

* * * * * 

4. Section 262.58 is revised to read as 

follows: 

§ 262.58 International agreements. 

(a) Any person who exports or 

imports wastes that are considered 

hazardous under U.S. national 

procedures to or from designated 

Member countries of the Organization 

for Economic Cooperation and 

Development (OECD) as defined in 

paragraph (a)(1) of this section for 

purposes of recovery is subject to 

subpart H of this part. The requirements 

of subparts E and F of this part do not 

apply to such exports and imports. A 

waste is considered hazardous under 

U.S. national procedures if the waste 

meets the Federal definition of 

hazardous waste in 40 CFR 261.3 and is 

subject to either the Federal RCRA 

manifesting requirements at 40 CFR part 

262, subpart B, the universal waste 

management standards of 40 CFR part 

273, State requirements analogous to 40 

CFR part 273, the export requirements 

in the spent lead-acid battery 

management standards of 40 CFR part 

266, subpart G, or State requirements 

analogous to the export requirements in 

40 CFR part 266, subpart G. 

(1) For the purposes of subpart H, the 

designated OECD Member countries 

consist of Australia, Austria, Belgium, 

the Czech Republic, Denmark, Finland, 

France, Germany, Greece, Hungary, 

Iceland, Ireland, Italy, Japan, 

Luxembourg, the Netherlands, New 

Zealand, Norway, Poland, Portugal, the 

Republic of Korea, the Slovak Republic, 

Spain, Sweden, Switzerland, Turkey, 

the United Kingdom, and the United 

States. 

(2) For the purposes of subpart H of 

this part, Canada and Mexico are 

considered OECD Member countries 

only for the purpose of transit. 

(b) Any person who exports 

hazardous waste to or imports 

hazardous waste from: A designated 

OECD Member country for purposes 

other than recovery (e.g., incineration, 

disposal), Mexico (for any purpose), or 

Canada (for any purpose) remains 

subject to the requirements of subparts 

E and F of this part, and is not subject 

to the requirements of subpart H of this 

part. 

5. Subpart H is revised to read as 

follows: 

Subpart H—Transboundary Movements of 

Hazardous Waste for Recovery Within the 

OECD 

Sec. 

262.80 Applicability. 

262.81 Definitions. 

262.82 General conditions. 

262.83 Notification and consent. 

262.84 Movement document. 

262.85 Contracts. 

262.86 Provisions relating to recognized 

traders. 

262.87 Reporting and recordkeeping. 

262.88 Pre-approval for U.S. recovery 

facilities [Reserved]. 

262.89 OECD waste lists. 

Subpart H—Transboundary 

Movements of Hazardous Waste for 

Recovery Within the OECD 

§ 262.80 Applicability. 

(a) The requirements of this subpart 

apply to imports and exports of wastes 

that are considered hazardous under 

U.S. national procedures and are 

destined for recovery operations in the 

countries listed in § 262.58(a)(1). A 

waste is considered hazardous under 

U.S. national procedures if the waste: 

(1) Meets the Federal definition of 

hazardous waste in 40 CFR 261.3; and 

(2) Is subject to either the Federal 

RCRA manifesting requirements at 40 

CFR part 262, subpart B, the universal 

waste management standards of 40 CFR 

part 273, State requirements analogous 

to 40 CFR part 273, the export 

requirements in the spent lead-acid 

battery management standards of 40 

CFR part 266, subpart G, or State 

requirements analogous to the export 

requirements in 40 CFR part 266, 

subpart G. 

(b) Any person (exporter, importer, or 

recovery facility operator) who mixes 

two or more wastes (including 

hazardous and non-hazardous wastes) 

or otherwise subjects two or more 

wastes (including hazardous and nonhazardous wastes) to physical or 

chemical transformation operations, and 

thereby creates a new hazardous waste, 


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becomes a generator and assumes all 

subsequent generator duties under 

RCRA and any exporter duties, if 

applicable, under this subpart. 

§ 262.81 Definitions. 

The following definitions apply to 

this subpart. 

Competent authority means the 

regulatory authority or authorities of 

concerned countries having jurisdiction 

over transboundary movements of 

wastes destined for recovery operations. 

Countries concerned means the OECD 

Member countries of export or import 

and any OECD Member countries of 

transit. 

Country of export means any 

designated OECD Member country 

listed in § 262.58(a)(1) from which a 

transboundary movement of hazardous 

wastes is planned to be initiated or is 

initiated. 

Country of import means any 

designated OECD Member country 

listed in § 262.58(a)(1) to which a 

transboundary movement of hazardous 

wastes is planned or takes place for the 

purpose of submitting the wastes to 

recovery operations therein. 

Country of transit means any 

designated OECD Member country 

listed in § 262.58(a)(1) and (a)(2) other 

than the country of export or country of 

import across which a transboundary 

movement of hazardous wastes is 

planned or takes place. 

Exporter means the person under the 

jurisdiction of the country of export 

who has, or will have at the time the 

planned transboundary movement 

commences, possession or other forms 

of legal control of the wastes and who 

proposes transboundary movement of 

the hazardous wastes for the ultimate 

purpose of submitting them to recovery 

operations. When the United States 

(U.S.) is the country of export, exporter 

is interpreted to mean a person 

domiciled in the United States. 

Importer means the person to whom 

possession or other form of legal control 

of the waste is assigned at the time the 

waste is received in the country of 

import. 

OECD area means all land or marine 

areas under the national jurisdiction of 

any OECD Member country listed in 

§ 262.58. When the regulations refer to 

shipments to or from an OECD Member 

country, this means OECD area. 

OECD means the Organization for 

Economic Cooperation and 

Development. 

Recognized trader means a person 

who, with appropriate authorization of 

countries concerned, acts in the role of 

principal to purchase and subsequently 

sell wastes; this person has legal control 

of such wastes from time of purchase to 

time of sale; such a person may act to 

arrange and facilitate transboundary 

movements of wastes destined for 

recovery operations. 

Recovery facility means a facility 

which, under applicable domestic law, 

is operating or is authorized to operate 

in the country of import to receive 

wastes and to perform recovery 

operations on them. 

Recovery operations means activities 

leading to resource recovery, recycling, 

reclamation, direct re-use or alternative 

uses, which include: 

R1 Use as a fuel (other than in direct 

incineration) or other means to 

generate energy. 

R2 Solvent reclamation/regeneration. 

R3 Recycling/reclamation of organic 

substances which are not used as 

solvents. 

R4 Recycling/reclamation of metals 

and metal compounds. 

R5 Recycling/reclamation of other 

inorganic materials. 

R6 Regeneration of acids or bases. 

R7 Recovery of components used for 

pollution abatement. 

R8 Recovery of components used from 

catalysts. 

R9 Used oil re-refining or other reuses 

of previously used oil. 

R10 Land treatment resulting in 

benefit to agriculture or ecological 

improvement. 

R11 Uses of residual materials 

obtained from any of the operations 

numbered R1–R10. 

R12 Exchange of wastes for 

submission to any of the operations 

numbered R1–R11. 

R13 Accumulation of material 

intended for any operation 

numbered R1–R12. 

Transboundary movement means any 

movement of wastes from an area under 

the national jurisdiction of one OECD 

Member country to an area under the 

national jurisdiction of another OECD 

Member country. 

§ 262.82 General conditions. 

(a) Scope. The level of control for 

exports and imports of waste is 

indicated by assignment of the waste to 

either a list of wastes subject to the 

Green control procedures or a list of 

wastes subject to the Amber control 

procedures and by the national 

procedures of the United States, as 

defined in § 262.80(a). The OECD Green 

and Amber lists are incorporated by 

reference in § 262.89(d). 

(1) Listed wastes subject to the Green 

control procedures. 

(i) Green wastes that are not 

considered hazardous under U.S. 

national procedures as defined in 

§ 262.80(a) are subject to existing 

controls normally applied to 

commercial transactions. 

(ii) Green wastes that are considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a) are 

subject to the Amber control procedures 

set forth in this subpart. 

(2) Listed wastes subject to the Amber 

control procedures. 

(i) Amber wastes that are considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a) are 

subject to the Amber control procedures 

set forth in this subpart. 

(ii) Amber wastes that are considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a), are 

subject to the Amber control procedures 

in the United States, even if they are 

imported to or exported from a 

designated OECD Member country 

listed in § 262.58(a)(1) that does not 

consider the waste to be hazardous. In 

such an event, the responsibilities of the 

Amber control procedures shift as 

provided: 

(A) For U.S. exports, the United States 

shall issue an acknowledgement of 

receipt and assume other 

responsibilities of the competent 

authority of the country of import. 

(B) For U.S. imports, the U.S. recovery 

facility/importer and the United States 

shall assume the obligations associated 

with the Amber control procedures that 

normally apply to the exporter and 

country of export, respectively. 

(iii) Amber wastes that are not 

considered hazardous under U.S. 

national procedures as defined in 

§ 262.80(a), but are considered 

hazardous by an OECD Member country 

are subject to the Amber control 

procedures in the OECD Member 

country that considers the waste 

hazardous. All responsibilities of the 

U.S. importer/exporter shift to the 

importer/exporter of the OECD Member 

country that considers the waste 

hazardous unless the parties make other 

arrangements through contracts. 

Note to Paragraph (a)(2): Some wastes 

subject to the Amber control procedures are 

not listed or otherwise identified as 

hazardous under RCRA, and therefore are not 

subject to the Amber control procedures of 

this subpart. Regardless of the status of the 

waste under RCRA, however, other Federal 

environmental statutes (e.g., the Toxic 

Substances Control Act) restrict certain waste 

imports or exports. Such restrictions 

continue to apply with regard to this subpart. 

(3) Procedures for mixtures of wastes. 

(i) A Green waste that is mixed with 

one or more other Green wastes such 

that the resulting mixture is not 

considered hazardous under U.S. 


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national procedures as defined in 

§ 262.80(a) shall be subject to the Green 

control procedures, provided the 

composition of this mixture does not 

impair its environmentally sound 

recovery. 

Note to Paragraph (a)(3)(i): The regulated 

community should note that some OECD 

Member countries may require, by domestic 

law, that mixtures of different Green wastes 

be subject to the Amber control procedures. 

(ii) A Green waste that is mixed with 

one or more Amber wastes, in any 

amount, de minimis or otherwise, or a 

mixture of two or more Amber wastes, 

such that the resulting waste mixture is 

considered hazardous under U.S. 

national procedures as defined in 

§ 262.80(a) are subject to the Amber 

control procedures, provided the 

composition of this mixture does not 

impair its environmentally sound 

recovery. 

Note to Paragraph (a)(3)(ii): The regulated 

community should note that some OECD 

Member countries may require, by domestic 

law, that a mixture of a Green waste and 

more than a de minimis amount of an Amber 

waste or a mixture of two or more Amber 

wastes be subject to the Amber control 

procedures. 

(4) Wastes not yet assigned to an 

OECD waste list are eligible for 

transboundary movements, as follows: 

(i) If such wastes are considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a), 

such wastes are subject to the Amber 

control procedures. 

(ii) If such wastes are not considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a), 

such wastes are subject to the Green 

control procedures. 

(b) General conditions applicable to 

transboundary movements of hazardous 

waste: (1) The waste must be destined 

for recovery operations at a facility that, 

under applicable domestic law, is 

operating or is authorized to operate in 

the importing country; 

(2) The transboundary movement 

must be in compliance with applicable 

international transport agreements; and 

Note to Paragraph (b)(2): These 

international agreements include, but are not 

limited to, the Chicago Convention (1944), 

ADR (1957), ADNR (1970), MARPOL 

Convention (1973/1978), SOLAS Convention 

(1974), IMDG Code (1985), COTIF (1985), and 

RID (1985). 

(3) Any transit of waste through a 

non-OECD Member country must be 

conducted in compliance with all 

applicable international and national 

laws and regulations. 

(c) Provisions relating to re-export for 

recovery to a third country: (1) Reexport of wastes subject to the Amber 

control procedures from the United 

States, as the country of import, to a 

third country listed in § 262.58(a)(1) 

may occur only after an exporter in the 

United States provides notification to 

and obtains consent from the competent 

authorities in the third country, the 

original country of export, and any 

transit countries. The notification must 

comply with the notice and consent 

procedures in § 262.83 for all countries 

concerned and the original country of 

export. The competent authorities of the 

original country of export, as well as the 

competent authorities of all other 

countries concerned have thirty (30) 

days to object to the proposed 

movement. 

(i) The thirty (30) day period begins 

once the competent authorities of both 

the initial country of export and new 

country of import issue 

Acknowledgements of Receipt of the 

notification. 

(ii) The transboundary movement may 

commence if no objection has been 

lodged after the thirty (30) day period 

has passed or immediately after written 

consent is received from all relevant 

OECD importing and transit countries. 

(2) In the case of re-export of Amber 

wastes to a country other than those 

listed in § 262.58(a)(1), notification to 

and consent of the competent 

authorities of the original OECD 

Member country of export and any 

OECD Member countries of transit is 

required as specified in paragraph (c)(1) 

of this section, in addition to 

compliance with all international 

agreements and arrangements to which 

the first importing OECD Member 

country is a party and all applicable 

regulatory requirements for exports from 

the first country of import. 

(d) Duty to return or re-export wastes 

subject to the Amber control procedures. 

When a transboundary movement of 

wastes subject to the Amber control 

procedures cannot be completed in 

accordance with the terms of the 

contract or the consent(s) and 

alternative arrangements cannot be 

made to recover the waste in an 

environmentally sound manner in the 

country of import, the waste must be 

returned to the country of export or reexported to a third country. The 

provisions of paragraph (c) of this 

section apply to any shipments to be reexported to a third country. The 

following provisions apply to shipments 

to be returned to the country of export 

as appropriate: 

(1) Return from the United States to 

the country of export: The U.S. importer 

must inform EPA at the specified 

address in § 262.83(b)(1)(i) of the need 

to return the shipment. EPA will then 

inform the competent authorities of the 

countries of export and transit, citing 

the reason(s) for returning the waste. 

The U.S. importer must complete the 

return within ninety (90) days from the 

time EPA informs the country of export 

of the need to return the waste, unless 

informed in writing by EPA of another 

timeframe agreed to by the concerned 

Member countries. If the return 

shipment will cross any transit country, 

the return shipment may only occur 

after EPA provides notification to and 

obtains consent from the competent 

authority of the country of transit, and 

provides a copy of that consent to the 

U.S. importer. 

(2) Return from the country of import 

to the United States: The U.S. exporter 

must provide for the return of the 

hazardous waste shipment within 

ninety (90) days from the time the 

country of import informs EPA of the 

need to return the waste or such other 

period of time as the concerned Member 

countries agree. The U.S. exporter must 

submit an exception report to EPA in 

accordance with § 262.87(b). 

(e) Duty to return wastes subject to the 

Amber control procedures from a 

country of transit. When a 

transboundary movement of wastes 

subject to the Amber control procedures 

does not comply with the requirements 

of the notification and movement 

documents or otherwise constitutes 

illegal shipment, and if alternative 

arrangements cannot be made to recover 

these wastes in an environmentally 

sound manner, the waste must be 

returned to the country of export. The 

following provisions apply as 

appropriate: 

(1) Return from the United States (as 

country of transit) to the country of 

export: The U.S. transporter must 

inform EPA at the specified address in 

§ 262.83(b)(1)(i) of the need to return the 

shipment. EPA will then inform the 

competent authority of the country of 

export, citing the reason(s) for returning 

the waste. The U.S. transporter must 

complete the return within ninety (90) 

days from the time EPA informs the 

country of export of the need to return 

the waste, unless informed in writing by 

EPA of another timeframe agreed to by 

the concerned Member countries. 

(2) Return from the country of transit 

to the United States (as country of 

export): The U.S. exporter must provide 

for the return of the hazardous waste 

shipment within ninety (90) days from 

the time the competent authority of the 

country of transit informs EPA of the 

need to return the waste or such other 

period of time as the concerned Member 

countries agree. The U.S. exporter must 


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submit an exception report to EPA in 

accordance with § 262.87(b). 

(f) Requirements for wastes destined 

for and received by R12 and R13 

facilities. The transboundary movement 

of wastes destined for R12 and R13 

operations must comply with all Amber 

control procedures for notification and 

consent as set forth in § 262.83 and for 

the movement document as set forth in 

§ 262.84. Additional responsibilities of 

R12/R13 facilities include: 

(1) Indicating in the notification 

document the foreseen recovery facility 

or facilities where the subsequent R1– 

R11 recovery operation takes place or 

may take place. 

(2) Within three (3) days of the receipt 

of the wastes by the R12/R13 recovery 

facility or facilities, the facility(ies) shall 

return a signed copy of the movement 

document to the exporter and to the 

competent authorities of the countries of 

export and import. The facility(ies) shall 

retain the original of the movement 

document for three (3) years. 

(3) As soon as possible, but no later 

than thirty (30) days after the 

completion of the R12/R13 recovery 

operation and no later than one (1) 

calendar year following the receipt of 

the waste, the R12 or R13 facility(ies) 

shall send a certificate of recovery to the 

foreign exporter and to the competent 

authority of the country of export and to 

the Office of Enforcement and 

Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW. Washington, DC 20460, by mail, email without digital signature followed 

by mail, or fax followed by mail. 

(4) When an R12/R13 recovery facility 

delivers wastes for recovery to an R1– 

R11 recovery facility located in the 

country of import, it shall obtain as soon 

as possible, but no later than one (1) 

calendar year following delivery of the 

waste, a certification from the R1–R11 

facility that recovery of the wastes at 

that facility has been completed. The 

R12/R13 facility must promptly transmit 

the applicable certification to the 

competent authorities of the countries of 

import and export, identifying the 

transboundary movements to which the 

certification pertain. 

(5) When an R12/R13 recovery facility 

delivers wastes for recovery to an R1– 

R11 recovery facility located: 

(i) In the initial country of export, 

Amber control procedures apply, 

including a new notification; 

(ii) In a third country other than the 

initial country of export, Amber control 

procedures apply, with the additional 

provision that the competent authority 

of the initial country of export shall also 

be notified of the transboundary 

movement. 

(g) Laboratory analysis exemption. 

The transboundary movement of an 

Amber waste is exempt from the Amber 

control procedures if it is in certain 

quantities and destined for laboratory 

analysis to assess its physical or 

chemical characteristics, or to determine 

its suitability for recovery operations. 

The quantity of such waste shall be 

determined by the minimum quantity 

reasonably needed to perform the 

analysis in each particular case 

adequately, but in no case exceed 

twenty-five kilograms (25 kg). Waste 

destined for laboratory analysis must 

still be appropriately packaged and 

labeled. 

§ 262.83 Notification and consent. 

(a) Applicability. Consent must be 

obtained from the competent authorities 

of the relevant OECD countries of 

import and transit prior to exporting 

hazardous waste destined for recovery 

operations subject to this subpart. 

Hazardous wastes subject to the Amber 

control procedures are subject to the 

requirements of paragraph (b) of this 

section; and wastes not identified on 

any list are subject to the requirements 

of paragraph (c) of this section. 

(b) Amber wastes. Exports of 

hazardous wastes from the United States 

as described in § 262.80(a) that are 

subject to the Amber control procedures 

are prohibited unless the notification 

and consent requirements of paragraph 

(b)(1) or paragraph (b)(2) of this section 

are met. 

(1) Transactions requiring specific 

consent: 

(i) Notification. At least forty-five (45) 

days prior to commencement of each 

transboundary movement, the exporter 

must provide written notification in 

English of the proposed transboundary 

movement to the Office of Enforcement 

and Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460, with the 

words ‘‘Attention: OECD Export 

Notification’’ prominently displayed on 

the envelope. This notification must 

include all of the information identified 

in paragraph (d) of this section. In cases 

where wastes having similar physical 

and chemical characteristics, the same 

United Nations classification, the same 

RCRA waste codes, and are to be sent 

periodically to the same recovery 

facility by the same exporter, the 

exporter may submit one general 

notification of intent to export these 

wastes in multiple shipments during a 

period of up to one (1) year. Even when 

a general notification is used for 

multiple shipments, each shipment still 

must be accompanied by its own 

movement document pursuant to 

§ 262.84. 

(ii) Tacit consent. If no objection has 

been lodged by any countries concerned 

(i.e., exporting, importing, or transit) to 

a notification provided pursuant to 

paragraph (b)(1)(i) of this section within 

thirty (30) days after the date of issuance 

of the Acknowledgement of Receipt of 

notification by the competent authority 

of the country of import, the 

transboundary movement may 

commence. Tacit consent expires one 

(1) calendar year after the close of the 

thirty (30) day period; renotification and 

renewal of all consents is required for 

exports after that date. 

(iii) Written consent. If the competent 

authorities of all the relevant OECD 

importing and transit countries provide 

written consent in a period less than 

thirty (30) days, the transboundary 

movement may commence immediately 

after all necessary consents are received. 

Written consent expires for each 

relevant OECD importing and transit 

country one (1) calendar year after the 

date of that country’s consent unless 

otherwise specified; renotification and 

renewal of each expired consent is 

required for exports after that date. 

(2) Transboundary movements to 

facilities pre-approved by the competent 

authorities of the importing countries to 

accept specific wastes for recovery: 

(i) Notification. The exporter must 

provide EPA a notification that contains 

all the information identified in 

paragraph (d) of this section in English, 

at least ten (10) days in advance of 

commencing shipment to a preapproved facility. The notification must 

indicate that the recovery facility is preapproved, and may apply to a single 

specific shipment or to multiple 

shipments as described in paragraph 

(b)(1)(i) of this section. This information 

must be sent to the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, 

with the words ‘‘OECD Export 

Notification—Pre-approved Facility’’ 

prominently displayed on the envelope. 

General notifications that cover multiple 

shipments as described in paragraph 

(b)(1)(i) of this section may cover a 

period of up to three (3) years. Even 

when a general notification is used for 

multiple shipments, each shipment still 

must be accompanied by its own 


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movement document pursuant to 

§ 262.84. 

(ii) Exports to pre-approved facilities 

may take place after the elapse of seven 

(7) working days from the issuance of an 

Acknowledgement of Receipt of the 

notification by the competent authority 

of the country of import unless the 

exporter has received information 

indicating that the competent authority 

of any countries concerned objects to 

the shipment. 

(c) Wastes not covered in the OECD 

Green and Amber lists. Wastes destined 

for recovery operations, that have not 

been assigned to the OECD Green and 

Amber lists, incorporated by reference 

in § 262.89(d), but which are considered 

hazardous under U.S. national 

procedures as defined in § 262.80(a), are 

subject to the notification and consent 

requirements established for the Amber 

control procedures in accordance with 

paragraph (b) of this section. Wastes 

destined for recovery operations, that 

have not been assigned to the OECD 

Green and Amber lists incorporated by 

reference in § 262.89(d), and are not 

considered hazardous under U.S. 

national procedures as defined by 

§ 262.80(a) are subject to the Green 

control procedures. 

(d) Notifications submitted under this 

section must include the information 

specified in paragraphs (d)(1) through 

(d)(14) of this section: (1) Serial number 

or other accepted identifier of the 

notification document; 

(2) Exporter name and EPA 

identification number (if applicable), 

address, telephone, fax numbers, and email address; 

(3) Importing recovery facility name, 

address, telephone, fax numbers, e-mail 

address, and technologies employed; 

(4) Importer name (if not the owner or 

operator of the recovery facility), 

address, telephone, fax numbers, and email address; whether the importer will 

engage in waste exchange recovery 

operation R12 or waste accumulation 

recovery operation R13 prior to 

delivering the waste to the final 

recovery facility and identification of 

recovery operations to be employed at 

the final recovery facility; 

(5) Intended transporter(s) and/or 

their agent(s); address, telephone, fax, 

and e-mail address; 

(6) Country of export and relevant 

competent authority, and point of 

departure; 

(7) Countries of transit and relevant 

competent authorities and points of 

entry and departure; 

(8) Country of import and relevant 

competent authority, and point of entry; 

(9) Statement of whether the 

notification is a single notification or a 

general notification. If general, include 

period of validity requested; 

(10) Date(s) foreseen for 

commencement of transboundary 

movement(s); 

(11) Means of transport envisaged; 

(12) Designation of waste type(s) from 

the appropriate OECD list incorporated 

by reference in § 262.89(d), 

description(s) of each waste type, 

estimated total quantity of each, RCRA 

waste code, and the United Nations 

number for each waste type; 

(13) Specification of the recovery 

operation(s) as defined in § 262.81. 

(14) Certification/Declaration signed 

by the exporter that states: 

I certify that the above information is 

complete and correct to the best of my 

knowledge. I also certify that legallyenforceable written contractual obligations 

have been entered into, and that any 

applicable insurance or other financial 

guarantees are or shall be in force covering 

the transboundary movement. 

Name: lllllllllllllllll

Signature: llllllllllllllll

Date: llllllllllllllllll

Note to Paragraph (d)(14): The United 

States does not currently require financial 

assurance for these waste shipments. 

However, U.S. exporters may be asked by 

other governments to provide and certify to 

such assurance as a condition of obtaining 

consent to a proposed movement. 

(e) Certificate of Recovery. As soon as 

possible, but no later than thirty (30) 

days after the completion of recovery 

and no later than one (1) calendar year 

following receipt of the waste, the U.S. 

recovery facility shall send a certificate 

of recovery to the exporter and to the 

competent authorities of the countries of 

export and import by mail, e-mail 

without a digital signature followed by 

mail, or fax followed by mail. The 

certificate of recovery shall include a 

signed, written and dated statement that 

affirms that the waste materials were 

recovered in the manner agreed to by 

the parties to the contract required 

under § 262.85. 

§ 262.84 Movement document. 

(a) All U.S. parties subject to the 

contract provisions of § 262.85 must 

ensure that a movement document 

meeting the conditions of paragraph (b) 

of this section accompanies each 

transboundary movement of wastes 

subject to the Amber control procedures 

from the initiation of the shipment until 

it reaches the final recovery facility, 

including cases in which the waste is 

stored and/or sorted by the importer 

prior to shipment to the final recovery 

facility, except as provided in 

paragraphs (a)(1) and (2) of this section. 

(1) For shipments of hazardous waste 

within the United States solely by water 

(bulk shipments only), the generator 

must forward the movement document 

with the manifest to the last water (bulk 

shipment) transporter to handle the 

waste in the United States if exported by 

water, (in accordance with the manifest 

routing procedures at § 262.23(c)). 

(2) For rail shipments of hazardous 

waste within the United States which 

originate at the site of generation, the 

generator must forward the movement 

document with the manifest (in 

accordance with the routing procedures 

for the manifest in § 262.23(d)) to the 

next non-rail transporter, if any, or the 

last rail transporter to handle the waste 

in the United States if exported by rail. 

(b) The movement document must 

include all information required under 

§ 262.83 (for notification), as well as the 

following paragraphs (b)(1) through 

(b)(7) of this section: 

(1) Date movement commenced; 

(2) Name (if not exporter), address, 

telephone, fax numbers, and e-mail of 

primary exporter; 

(3) Company name and EPA ID 

number of all transporters; 

(4) Identification (license, registered 

name or registration number) of means 

of transport, including types of 

packaging envisaged; 

(5) Any special precautions to be 

taken by transporter(s); 

(6) Certification/declaration signed by 

the exporter that no objection to the 

shipment has been lodged, as follows: 

I certify that the above information is 

complete and correct to the best of my 

knowledge. I also certify that legallyenforceable written contractual obligations 

have been entered into, that any applicable 

insurance or other financial guarantees are or 

shall be in force covering the transboundary 

movement, and that: 

1. All necessary consents have been 

received; OR 

2. The shipment is directed to a recovery 

facility within the OECD area and no 

objection has been received from any of the 

countries concerned within the thirty (30) 

day tacit consent period; OR 

3. The shipment is directed to a recovery 

facility pre-approved for that type of waste 

within the OECD area; such an authorization 

has not been revoked, and no objection has 

been received from any of the countries 

concerned. 

(Delete sentences that are not applicable) 

Name: lllllllllllllllll

Signature: llllllllllllllll

Date: llllllllllllllllll

(7) Appropriate signatures for each 

custody transfer (e.g., transporter, 

importer, and owner or operator of the 

recovery facility). 

(c) Exporters also must comply with 

the special manifest requirements of 40 

CFR 262.54(a), (b), (c), (e), and (i) and 

importers must comply with the import 


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requirements of 40 CFR part 262, 

subpart F. 

(d) Each U.S. person that has physical 

custody of the waste from the time the 

movement commences until it arrives at 

the recovery facility must sign the 

movement document (e.g., transporter, 

importer, and owner or operator of the 

recovery facility). 

(e) Within three (3) working days of 

the receipt of imports subject to this 

subpart, the owner or operator of the 

U.S. recovery facility must send signed 

copies of the movement document to 

the exporter, to the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, 

and to the competent authorities of the 

countries of export and transit. If the 

concerned U.S. recovery facility is a 

R12/R13 recovery facility as defined 

under § 262.81, the facility shall retain 

the original of the movement document 

for three (3) years. 

§ 262.85 Contracts. 

(a) Transboundary movements of 

hazardous wastes subject to the Amber 

control procedures are prohibited unless 

they occur under the terms of a valid 

written contract, chain of contracts, or 

equivalent arrangements (when the 

movement occurs between parties 

controlled by the same corporate or 

legal entity). Such contracts or 

equivalent arrangements must be 

executed by the exporter and the owner 

or operator of the recovery facility, and 

must specify responsibilities for each. 

Contracts or equivalent arrangements 

are valid for the purposes of this section 

only if persons assuming obligations 

under the contracts or equivalent 

arrangements have appropriate legal 

status to conduct the operations 

specified in the contract or equivalent 

arrangements. 

(b) Contracts or equivalent 

arrangements must specify the name 

and EPA ID number, where available, of 

paragraph (b)(1) through (b)(4) of this 

section: 

(1) The generator of each type of 

waste; 

(2) Each person who will have 

physical custody of the wastes; 

(3) Each person who will have legal 

control of the wastes; and 

(4) The recovery facility. 

(c) Contracts or equivalent 

arrangements must specify which party 

to the contract will assume 

responsibility for alternate management 

of the wastes if their disposition cannot 

be carried out as described in the 

notification of intent to export. In such 

cases, contracts must specify that: 

(1) The person having actual 

possession or physical control over the 

wastes will immediately inform the 

exporter and the competent authorities 

of the countries of export and import 

and, if the wastes are located in a 

country of transit, the competent 

authorities of that country; and 

(2) The person specified in the 

contract will assume responsibility for 

the adequate management of the wastes 

in compliance with applicable laws and 

regulations including, if necessary, 

arranging the return of wastes and, as 

the case may be, shall provide the 

notification for re-export. 

(d) Contracts must specify that the 

importer will provide the notification 

required in § 262.82(c) prior to the reexport of controlled wastes to a third 

country. 

(e) Contracts or equivalent 

arrangements must include provisions 

for financial guarantees, if required by 

the competent authorities of any 

countries concerned, in accordance with 

applicable national or international law 

requirements. 

Note to Paragraph (e): Financial guarantees 

so required are intended to provide for 

alternate recycling, disposal or other means 

of sound management of the wastes in cases 

where arrangements for the shipment and the 

recovery operations cannot be carried out as 

foreseen. The United States does not require 

such financial guarantees at this time; 

however, some OECD Member countries do. 

It is the responsibility of the exporter to 

ascertain and comply with such 

requirements; in some cases, transporters or 

importers may refuse to enter into the 

necessary contracts absent specific references 

or certifications to financial guarantees. 

(f) Contracts or equivalent 

arrangements must contain provisions 

requiring each contracting party to 

comply with all applicable requirements 

of this subpart. 

(g) Upon request by EPA, U.S. 

exporters, importers, or recovery 

facilities must submit to EPA copies of 

contracts, chain of contracts, or 

equivalent arrangements (when the 

movement occurs between parties 

controlled by the same corporate or 

legal entity). Information contained in 

the contracts or equivalent arrangements 

for which a claim of confidentiality is 

asserted in accordance with 40 CFR 

2.203(b) will be treated as confidential 

and will be disclosed by EPA only as 

provided in 40 CFR 260.2. 

Note to Paragraph (g): Although the United 

States does not require routine submission of 

contracts at this time, the OECD Decision 

allows Member countries to impose such 

requirements. When other OECD Member 

countries require submission of partial or 

complete copies of the contract as a 

condition to granting consent to proposed 

movements, EPA will request the required 

information; absent submission of such 

information, some OECD Member countries 

may deny consent for the proposed 

movement. 

§ 262.86 Provisions relating to recognized 

traders. 

(a) A recognized trader who takes 

physical custody of a waste and 

conducts recovery operations (including 

storage prior to recovery) is acting as the 

owner or operator of a recovery facility 

and must be so authorized in 

accordance with all applicable Federal 

laws. 

(b) A recognized trader acting as an 

exporter or importer for transboundary 

shipments of waste must comply with 

all the requirements of this subpart 

associated with being an exporter or 

importer. 

§ 262.87 Reporting and recordkeeping. 

(a) Annual reports. For all waste 

movements subject to this subpart, 

persons (e.g., exporters, recognized 

traders) who meet the definition of 

primary exporter in § 262.51 or who 

initiate the movement documentation 

under § 262.84 shall file an annual 

report with the Office of Enforcement 

and Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460, no later 

than March 1 of each year summarizing 

the types, quantities, frequency, and 

ultimate destination of all such 

hazardous waste exported during the 

previous calendar year. (If the primary 

exporter or the person who initiates the 

movement document under § 262.84 is 

required to file an annual report for 

waste exports that are not covered under 

this subpart, he may include all export 

information in one report provided the 

following information on exports of 

waste destined for recovery within the 

designated OECD Member countries is 

contained in a separate section.) Such 

reports shall include all of the following 

paragraphs (a)(1) through (a)(6) of this 

section specified as follows: 

(1) The EPA identification number, 

name, and mailing and site address of 

the exporter filing the report; 

(2) The calendar year covered by the 

report; 

(3) The name and site address of each 

final recovery facility; 

(4) By final recovery facility, for each 

hazardous waste exported, a description 

of the hazardous waste, the EPA 

hazardous waste number (from 40 CFR 


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part 261, subpart C or D), designation of 

waste type(s) and applicable waste 

code(s) from the appropriate OECD 

waste list incorporated by reference in 

§ 262.89(d), DOT hazard class, the name 

and U.S. EPA identification number 

(where applicable) for each transporter 

used, the total amount of hazardous 

waste shipped pursuant to this subpart, 

and number of shipments pursuant to 

each notification; 

(5) In even numbered years, for each 

hazardous waste exported, except for 

hazardous waste produced by exporters 

of greater than 100kg but less than 

1,000kg in a calendar month, and except 

for hazardous waste for which 

information was already provided 

pursuant to § 262.41: 

(i) A description of the efforts 

undertaken during the year to reduce 

the volume and toxicity of the waste 

generated; and 

(ii) A description of the changes in 

volume and toxicity of the waste 

actually achieved during the year in 

comparison to previous years to the 

extent such information is available for 

years prior to 1984; and 

(6) A certification signed by the 

person acting as primary exporter or 

initiator of the movement document 

under § 262.84 that states: 

I certify under penalty of law that I have 

personally examined and am familiar with 

the information submitted in this and all 

attached documents, and that based on my 

inquiry of those individuals immediately 

responsible for obtaining the information, I 

believe that the submitted information is 

true, accurate, and complete. I am aware that 

there are significant penalties for submitting 

false information including the possibility of 

fine and imprisonment. 

(b) Exception reports. Any person 

who meets the definition of primary 

exporter in § 262.51 or who initiates the 

movement document under § 262.84 

must file an exception report in lieu of 

the requirements of § 262.42 (if 

applicable) with the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460, if 

any of the following occurs: 

(1) He has not received a copy of the 

RCRA hazardous waste manifest (if 

applicable) signed by the transporter 

identifying the point of departure of the 

waste from the United States, within 

forty-five (45) days from the date it was 

accepted by the initial transporter; 

(2) Within ninety (90) days from the 

date the waste was accepted by the 

initial transporter, the exporter has not 

received written confirmation from the 

recovery facility that the hazardous 

waste was received; 

(3) The waste is returned to the 

United States. 

(c) Recordkeeping. (1) Persons who 

meet the definition of primary exporter 

in § 262.51 or who initiate the 

movement document under § 262.84 

shall keep the following records in 

paragraphs (c)(1)(i) through (c)(1)(iv) of 

this section: 

(i) A copy of each notification of 

intent to export and all written consents 

obtained from the competent authorities 

of countries concerned for a period of at 

least three (3) years from the date the 

hazardous waste was accepted by the 

initial transporter; 

(ii) A copy of each annual report for 

a period of at least three (3) years from 

the due date of the report; 

(iii) A copy of any exception reports 

and a copy of each confirmation of 

delivery (i.e., movement document) sent 

by the recovery facility to the exporter 

for at least three (3) years from the date 

the hazardous waste was accepted by 

the initial transporter or received by the 

recovery facility, whichever is 

applicable; and 

(iv) A copy of each certificate of 

recovery sent by the recovery facility to 

the exporter for at least three (3) years 

from the date that the recovery facility 

completed processing the waste 

shipment. 

(2) The periods of retention referred to 

in this section are extended 

automatically during the course of any 

unresolved enforcement action 

regarding the regulated activity or as 

requested by the Administrator. 

§ 262.88 Pre-approval for U.S. recovery 

facilities [Reserved]. 

§ 262.89 OECD waste lists. 

(a) General. For the purposes of this 

subpart, a waste is considered 

hazardous under U.S. national 

procedures, and hence subject to this 

subpart, if the waste: 

(1) Meets the Federal definition of 

hazardous waste in 40 CFR 261.3; and 

(2) Is subject to either the Federal 

RCRA manifesting requirements at 40 

CFR part 262, subpart B, the universal 

waste management standards of 40 CFR 

part 273, State requirements analogous 

to 40 CFR part 273, the export 

requirements in the spent lead-acid 

battery management standards of 40 

CFR part 266, subpart G, or State 

requirements analogous to the export 

requirements in 40 CFR part 266, 

subpart G. 

(b) If a waste is hazardous under 

paragraph (a) of this section, it is subject 

to the Amber control procedures, 

regardless of whether it appears in 

Appendix 4 of the OECD Decision, as 

defined in § 262.81. 

(c) The appropriate control 

procedures for hazardous wastes and 

hazardous waste mixtures are addressed 

in § 262.82. 

(d) The OECD waste lists, as set forth 

in Annex B (‘‘Green List’’) and Annex C 

(‘‘Amber List’’) (collectively ‘‘OECD 

waste lists’’) of the 2009 ‘‘Guidance 

Manual for the Implementation of 

Council Decision C(2001)107/FINAL, as 

Amended, on the Control of 

Transboundary Movements of Wastes 

Destined for Recovery Operations,’’ are 

incorporated by reference. This 

incorporation by reference was 

approved by the Director of the Federal 

Register in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. This material 

is incorporated as it exists on the date 

of the approval and a notice of any 

change in these materials will be 

published in the Federal Register. The 

materials are available for inspection at: 

the U.S. Environmental Protection 

Agency, Docket Center Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Avenue NW., Washington, 

DC 20004 (Docket # EPA–HQ–RCRA– 

2005–0018) or at the National Archives 

and Records Administration (NARA), 

and may be obtained from the 

Organization for Economic Cooperation 

and Development, Environment 

Directorate, 2 rue Andre ́ Pascal, F– 

75775 Paris Cedex 16, France. For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal-register/cfr/ibr-locations.html. 

To contact the EPA Docket Center 

Public Reading Room, call (202) 566– 

1744. To contact the OECD, call +33 (0) 

1 45 24 81 67. 

PART 263—STANDARDS APPLICABLE 

TO TRANSPORTERS OF HAZARDOUS 

WASTE 

The authority citation for part 263 

continues to read as follows: 

Authority: 42 U.S.C. 6906, 6912, 6922– 

6925, 6937, and 6938. 

Section 263.10(d) is amended by 

revising paragraph (d) to read as 

follows: 

§ 263.10 Scope. 

* * * * * 

(d) A transporter of hazardous waste 

subject to the Federal manifesting 

requirements of 40 CFR part 262, or 

subject to the waste management 

standards of 40 CFR part 273, or subject 

to State requirements analogous to 40 

CFR part 273, that is being imported 


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from or exported to any of the countries 

listed in 40 CFR 262.58(a)(1) for 

purposes of recovery is subject to this 

Subpart and to all other relevant 

requirements of subpart H of 40 CFR 

part 262, including, but not limited to, 

40 CFR 262.84 for movement 

documents. 

* * * * * 

PART 264—STANDARDS FOR 

OWNERS AND OPERATORS OF 

HAZARDOUS WASTE TREATMENT, 

STORAGE, AND DISPOSAL 

FACILITIES 

8. The authority citation for part 264 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), 6924, 

and 6925. 

9. Section 264.12 is amended by 

revising paragraph (a)(2) to read as 

follows: 

§ 264.12 Required notices. 

(a) * * * 

(2) The owner or operator of a 

recovery facility that has arranged to 

receive hazardous waste subject to 40 

CFR part 262, subpart H must provide 

a copy of the movement document 

bearing all required signatures to the 

foreign exporter; to the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

and to the competent authorities of all 

other countries concerned within three 

(3) working days of receipt of the 

shipment. The original of the signed 

movement document must be 

maintained at the facility for at least 

three (3) years. In addition, such owner 

or operator shall, as soon as possible, 

but no later than thirty (30) days after 

the completion of recovery and no later 

than one (1) calendar year following the 

receipt of the hazardous waste, send a 

certificate of recovery to the foreign 

exporter and to the competent authority 

of the country of export and to EPA’s 

Office of Enforcement and Compliance 

Assurance at the above address by mail, 

e-mail without a digital signature 

followed by mail, or fax followed by 

mail. 

* * * * * 

10. Section 264.71 is amended by 

revising paragraphs (a)(3) and (d) to read 

as follows: 

§ 264.71 Use of manifest system. 

(a) * * * 

(3) If a facility receives hazardous 

waste imported from a foreign source, 

the receiving facility must mail a copy 

of the manifest and documentation 

confirming EPA’s consent to the import 

of hazardous waste to the following 

address within thirty (30) days of 

delivery: Office of Enforcement and 

Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

* * * * * 

(d) Within three (3) working days of 

the receipt of a shipment subject to 40 

CFR part 262, subpart H, the owner or 

operator of a facility must provide a 

copy of the movement document 

bearing all required signatures to the 

exporter, to the Office of Enforcement 

and Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460, and to 

competent authorities of all other 

concerned countries. The original copy 

of the movement document must be 

maintained at the facility for at least 

three (3) years from the date of 

signature. 

* * * * * 

PART 265—INTERIM STATUS 

STANDARDS FOR OWNERS AND 

OPERATORS OF HAZARDOUS WASTE 

TREATMENT, STORAGE, AND 

DISPOSAL FACILITIES 

11. The authority citation for part 265 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6906, 6912, 

6922, 6923, 6924, 6925, 6935, 6936, and 

6937. 

12. Section 265.12 is amended by 

revising paragraph (a)(2) to read as 

follows: 

§ 265.12 Required notices. 

(a) * * * 

(2) The owner or operator of a 

recovery facility that has arranged to 

receive hazardous waste subject to 40 

CFR part 262, subpart H must provide 

a copy of the movement document 

bearing all required signatures to the 

foreign exporter; to the Office of 

Enforcement and Compliance 

Assurance, Office of Federal Activities, 

International Compliance Assurance 

Division (2254A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

and to the competent authorities of all 

other countries concerned within three 

(3) working days of receipt of the 

shipment. The original of the signed 

movement document must be 

maintained at the facility for at least 

three (3) years. In addition, such owner 

or operator shall, as soon as possible, 

but no later than thirty (30) days after 

the completion of recovery and no later 

than one (1) calendar year following the 

receipt of the hazardous waste, send a 

certificate of recovery to the foreign 

exporter and to the competent authority 

of the country of export and to EPA’s 

Office of Enforcement and Compliance 

Assurance at the above address by mail, 

e-mail without a digital signature 

followed by mail, or fax followed by 

mail. 

* * * * * 

13. Section 265.71 is amended by 

revising paragraphs (a)(3) and (d) to read 

as follows: 

§ 265.71 Use of manifest system. 

(a) * * * 

(3) If a facility receives hazardous 

waste imported from a foreign source, 

the receiving facility must mail a copy 

of the manifest and documentation 

confirming EPA’s consent to the import 

of hazardous waste to the following 

address within thirty (30) days of 

delivery: Office of Enforcement and 

Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

* * * * * 

(d) Within three (3) working days of 

the receipt of a shipment subject to 40 

CFR part 262, subpart H, the owner or 

operator of a facility must provide a 

copy of the movement document 

bearing all required signatures to the 

exporter, to the Office of Enforcement 

and Compliance Assurance, Office of 

Federal Activities, International 

Compliance Assurance Division 

(2254A), Environmental Protection 

Agency, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460, and to 

competent authorities of all other 

countries concerned. The original copy 

of the movement document must be 

maintained at the facility for at least 

three (3) years from the date of 

signature. 

* * * * * 

PART 266—STANDARDS FOR THE 

MANAGEMENT OF SPECIFIC 

HAZARDOUS WASTES AND SPECIFIC 

TYPES OF HAZARDOUS WASTE 

MANAGEMENT FACILITIES 

14. The authority citation for part 266 

is revised to read as follows: 


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Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 1261 

Authority: 42 U.S.C. 1006, 2002(a), 3001– 

3009, 3014, 3017, 6905, 6906, 6912, 6921, 

6922, 6924–6927, 6934, and 6937. 

15. In § 266.80(a) the table is revised 

to read as follows: 

§ 266.80 Applicability and requirements. 

(a) * * * 

If your batteries . . . And if you . . . Then you . . . And you . . . 

(1) Will be reclaimed through regeneration (such as by electrolyte replacement)........................................................ are exempt from 40 CFR parts 

262 (except for § 262.11), 263, 

264, 265, 266, 268, 270, 124 of 

this chapter, and the notification 

requirements at section 3010 of 

RCRA.

are subject to 40 CFR parts 261 

and § 262.11 of this chapter. 

(2) Will be reclaimed other than 

through regeneration.

generate, collect, and/or transport 

these batteries.

are exempt from 40 CFR parts 

262 (except for § 262.11), 263, 

264, 265, 266, 270, 124 of this 

chapter, and the notification requirements at section 3010 of 

RCRA.

are subject to 40 CFR parts 261 

and § 262.11, and applicable 

provisions under part 268. 

(3) Will be reclaimed other than 

through regeneration.

store these batteries but you 

aren’t the reclaimer.

are exempt from 40 CFR parts 

262 (except for § 262.11), 263, 

264, 265, 266, 270, 124 of this 

chapter, and the notification requirements at section 3010 of 

RCRA.

are subject to 40 CFR parts 261, 

§ 262.11, and applicable provisions under part 268. 

(4) Will be reclaimed other than 

through regeneration.

store these batteries before you 

reclaim them.

must comply with 40 CFR 

266.80(b) and as appropriate 

other regulatory provisions described in 266.80(b).

are subject to 40 CFR parts 261, 

§ 262.11, and applicable provisions under part 268. 

(5) Will be reclaimed other than 

through regeneration.

don’t store these batteries before 

you reclaim them.

are exempt from 40 CFR parts 

262 (except for § 262.11), 263, 

264, 265, 266, 270, 124 of this 

chapter, and the notification requirements at section 3010 of 

RCRA.

are subject to 40 CFR parts 261, 

§ 262.11, and applicable provisions under part 268. 

(6) Will be reclaimed through regeneration or any other means.export these batteries for reclamation in a foreign country.are exempt from 40 CFR parts 

263, 264, 265, 266, 268, 270, 

124 of this chapter, and the notification requirements at section 3010 of RCRA. You are 

also exempt from part 262, except for 262.11, and except for 

the applicable requirements in 

either: (1) 40 CFR part 262 

subpart H; or (2) 262.53 ‘‘Notification of Intent to Export, 

262.56(a)(1) through (4)(6) and 

(b) ‘‘Annual Reports,’’ and 

262.57 ‘‘Recordkeeping’’.

are subject to 40 CFR part 261 

and § 262.11, and either must 

comply with 40 CFR part 262, 

subpart H (if shipping to one of 

the OECD countries specified in 

40 CFR 262.58(a)(1)), or must: 

(a) Comply with the requirements applicable to a primary exporter in 40 CFR 

262.53, 262.56(a) (1) 

through (4), (6), and (b) 

and 262.57; and 

(b) Export these batteries 

only upon consent of the 

receiving country and in 

conformance with the EPA 

Acknowledgement of Consent as defined in subpart 

E of part 262 of this chapter; and 

(c) Provide a copy of the EPA 

Acknowledgment of Consent for the shipment to the 

transporter transporting the 

shipment for export. 

(7) Will be reclaimed through regeneration or any other means.Transport these batteries in the 

U.S. to export them for reclamation in a foreign country.

are exempt from 40 CFR parts 

263, 264, 265, 266, 268, 270, 

124 of this chapter, and the notification requirements at section 3010 of RCRA.

must comply with applicable requirements in 40 CFR part 262, 

subpart H (if shipping to one of 

the OECD countries specified in 

40 CFR 262.58(a)(1)), or must 

comply with the following: 

(a) you may not accept a 

shipment if you know the 

shipment does not conform 

to the EPA Acknowledgment of Consent; 

(b) you must ensure that a 

copy of the EPA Acknowledgment of Consent accompanies the shipment; 

and 


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1262 Federal Register / Vol. 75, No. 5 / Friday, January 8, 2010 / Rules and Regulations 

If your batteries . . . And if you . . . Then you . . . And you . . . 

(c) you must ensure that the 

shipment is delivered to the 

facility designated by the 

person initiating the shipment. 

* * * * * 

PART 271—REQUIREMENTS FOR 

AUTHORIZATION OF STATE 

HAZARDOUS WASTE PROGRAMS 

16. The authority citation for part 271 

continues to read as follows: 

Authority: 42 U.S.C. 6905, 6912(a), and 

6926. 

17. Section 271.1(j) is amended by 

adding the following entry to Table 1 

and Table 2 in chronological order by 

date of publication in the FEDERAL

REGISTER, to read as follows: 

§ 271.1 Purpose and scope. 

* * * * * 

(j) * * * 

TABLE 1—REGULATIONS IMPLEMENTING THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 

Promulgation date Title of regulation Federal Register reference Effective date 

* * * * * * * 

Jan. 8, 2010 ............................................. Exports of hazardous waste .................... [Insert FR page numbers] ........................ July 7, 2010. 

* * * * * 

TABLE 2—SELF-IMPLEMENTING PROVISIONS OF THE HAZARDOUS AND SOLID WASTE AMENDMENTS OF 1984 

Effective date Self-implementing provision RCRA citation Federal Register reference 

* * * * * * * 

July 7, 2010 ............................................... Exports of hazardous waste ..................... 3017(a) [Insert Federal Register reference for 

publication of final rule]. 

* * * * * 

[FR Doc. E9–31081 Filed 1–7–10; 8:45 am] 

BILLING CODE 6560–50–P 


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