16290 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 9, 260, 261, 262, 263, 264,

265, 266 and 273

[FRL–5447–1]

RIN 2050–AD87

Imports and Exports of Hazardous

Waste: Implementation of OECD

Council Decision C(92)39 Concerning

the Control of Transfrontier

Movements of Wastes Destined for

Recovery Operations

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The rule identifies the wastes,

under the Resource Conservation and

Recovery Act (RCRA), that are subject to

a graduated system (green, amber, red)

of procedural and substantive controls

when they move across national borders

within the OECD for recovery. (EPA

may, in the future, identify wastes

under other statutes that are subject to

the OECD Decision). It seeks to make the

transactions fully transparent and to

prevent or minimize the possibility of

such wastes being abandoned or

otherwise illegally handled. These

requirements will apply only to U.S.

exporters and importers of RCRA

hazardous wastes destined for recovery

in OECD countries (except for Canada

and Mexico; waste shipments to and

from these countries will continue to

move under the current bilateral

agreements and regulations). Those U.S.

exporters and importers transacting

hazardous waste movements outside the

scope of today’s rule will remain subject

to EPA’s current waste export and

import regulations at 40 CFR part 262,

subparts E and F.

This rule does not increase the scope

of wastes subject to U.S. export and

import controls; it does, however,

modify the procedural controls

governing their export and import when

shipped for recovery among OECD

countries. Today’s rule will assist in

harmonizing the new OECD

requirements, reducing confusion to

U.S. importers and exporters and

increasing the efficiency of the process.

EFFECTIVE DATE: This rule is effective on

July 11, 1996. The OECD Green List of

Wastes (revised May 1994), Amber List

of Wastes and Red List of Wastes (both

revised May 1993) as set forth in

Appendix 3, Appendix 4 and Appendix

5, respectively, to the OECD Council

Decision C(92)39/FINAL (Concerning

the Control of Transfrontier Movements

of Wastes Destined for Recovery

Operations) were approved by the

Director of the Federal Register to be

incorporated by reference in today’s rule

on July 11, 1996.

ADDRESSES: Supporting materials are

available for viewing in the RCRA

Information Center (RIC), located at

1235 Jefferson-Davis Highway, First

Floor, Arlington, Virginia 22203. The

Docket Identification Number is F–94–

IEHF–FFFFF. The RIC is open from 9

a.m. to 4 p.m., Monday through Friday,

excluding federal holidays. To review

docket materials, the public must make

an appointment by calling (703) 603–

9230. The public may copy a maximum

of 100 pages from any regulatory docket

at no charge. Additional copies cost

$.15/page. Some supporting materials

are available electronically. See the

‘‘Supplementary Information’’ section

for information on accessing them.

FOR FURTHER INFORMATION CONTACT:

For general information, contact the

RCRA Hotline at 1–800–424–9346 or

TDD 1–800–553–7672 (hearing

impaired). In the Washington

metropolitan area, call 703–412–9810 or

TDD 703–412–3323.

For more detailed information on

specific aspects of this rulemaking,

contact Ms. Julia Gourley, Office of

Solid Waste (5304), U.S. Environmental

Protection Agency, 401 M Street, SW.,

Washington, DC 20460, (202) 260–7944.

SUPPLEMENTARY INFORMATION:

Internet Access

Selected supporting materials are

available on the Internet. Follow these

instructions to access the information

electronically:

Gopher: gopher.epa.gov

WWW: http://www.epa.gov

Dial-up: (919) 558–0335.

This report can be accessed off the

main EPA Gopher menu, in the

directory: EPA Offices and Regions/

Office of Solid Waste and Emergency

Response (OSWER)/Office of Solid

Waste (RCRA)/Hazardous Waste-RCRASubtitle C/Exports/Imports.

FTP: ftp.epa.gov

Login: anonymous

Password: Your Internet address

Files are located in /pub/gopher/

OSWRCRA.

Preamble Outline

I. Authority

A. Good Cause Exception to Notice and

Comment Requirement

B. Effective Date

II. Background

A. History of the OECD and Development

of Council Decision C(92)39/FINAL

B. Relationship to the Basel Convention

C. Summary of Decision

1. Waste Lists

a. Green, Amber, and Red Lists

b. Unlisted Wastes

c. National Procedures

2. Control Procedures

a. Green-List Wastes

b. Amber-List Wastes

c. Red-List Wastes

d. When Wastes are not Considered

Hazardous by All Concerned Countries

III. Specific OECD Requirements and

Relationship to RCRA

A. Differences Between the OECD Decision

and Today’s Rule

B. Definitions

1. Competent Authorities

2. Concerned Countries

3. Consignee

4. Country of Transit

5. Exporting Country

6. Generator

7. Importing Country

8. International Waste Identification Code

9. Notifier

10. OECD Area

11. Person

12. Recognized Trader

13. Recovery Facility

14. Recovery Operations

15. Transfrontier Movement

16. Wastes

C. Notification and Consent for Exports

1. Provisions Applicable to Amber-List and

Red-List Wastes

a. Notice and Consent for Specific

Shipments

b. General Notification

c. Pre-Approval for Recovery Facilities

Managing Amber-List Wastes

d. Return or Re-Export of Shipments

2. Unlisted Wastes

D. Tracking Documents

1. Routing of Tracking Document

E. Contracts

F. Importers

1. Definition

2. Requirements

a. Notification of Receipt

b. Pre-Approval of U.S. Recovery Facilities

G. Reporting and Recordkeeping

IV. OECD Waste Lists and Relationship to

RCRA

A. Relationship of OECD Wastes and RCRA

Hazardous Wastes

B. Status of Specific RCRA Hazardous

Wastes

1. Definitions of Wastes Subject to National

Procedures

2. Exemptions from the Definition of Solid

Waste Definition

3. Applicability to Hazardous Waste

Subject to Special Recycling Standards

a. Scrap Metal

b. Lead-Acid Batteries

4. Wastes Excluded Under 40 CFR 261.4

5. Hazardous Wastes Exempted Under 40

CFR 261.5

6. Applicability to Universal Wastes

7. Non-RCRA Wastes and Other Regulatory

Regimes

C. OECD Waste Lists Incorporated by

Reference

V. Applicability in Authorized States

VI. Relationship to U.S. Bilateral Agreements

VII. Relationship to Other Programs

VIII. Future Rulemaking

IX. Regulatory Impact Analysis
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16291

1OECD member countries consist of Australia,

Austria, Belgium, Canada, Denmark, Finland,

France, Germany, Greece, Iceland, Ireland, Italy,

Japan, Luxembourg, the Netherlands, New Zealand,

Norway, Portugal, Spain, Sweden, Switzerland,

Turkey, the United Kingdom, and the United States.

Mexico joined the OECD in June 1994.

A. Executive Order 12866

B. Regulatory Flexibility Act

C. Paperwork Reduction Act

1. Display of OMB Control Numbers

2. Burden Statement

Note: The Agency notes that previous, prepublication versions of this rule may

inadvertently have been made available (e.g.

through the Internet and other on-line

means). This rule, published today in the

Federal Register, supersedes any and all of

these pre-publication versions. This

published rule constitutes the Agency’s final

rule and reflects certain minor technical

corrections that were not contained in prepublication versions.

On March 30, 1992, the Organization

for Economic Cooperation and

Development (OECD) adopted Council

Decision C(92)39 Concerning the

Control of Transfrontier Movements of

Wastes Destined for Recovery

Operations (Decision). The United

States, a member of OECD, supported

the Decision and has agreed to follow its

terms, which, with respect to RCRA

wastes, EPA is implementing in today’s

Final Rule.

I. Authority

Authority to promulgate today’s rule

is found in sections 2002(a) and

3017(a)(2) and (f) 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. 6901 et seq.

Today’s final rule is necessary to

ensure implementation of the

Organization for Economic Cooperation

and Development (OECD) Council

Decision C(92)39/FINAL Concerning the

Control of Transfrontier Movements of

Wastes Destined for Recovery

Operations (the Decision). The Decision

was supported by the United States and

imposes legally binding commitments

on the United States pursuant to

Articles 5(a) and 6(2) of the OECD

Convention, 12 U.S.T. 1728. The

Decision and today’s rule implementing

the Decision also will ensure that the

import and export of RCRA hazardous

waste destined for recovery, between

the United States and those OECD

countries that are Parties to the Basel

Convention on the Control of

Transboundary Movements of

Hazardous Wastes and Their Disposal,

may proceed even though the United

States is not yet a Party to the Basel

Convention.1

The Basel Convention entered into

force on May 5, 1992, for the twenty

countries that ratified it by that date.

Since then, a number of other countries

have also ratified. The Convention

prohibits trade in Basel-covered wastes

between parties and non-parties, unless

a bilateral, multilateral, or regional

agreement or arrangement exists in

accordance with Article 11 of the

Convention. The Decision, which

entered into force before May 5, 1992,

satisfies the requirements of Article 11

of the Basel Convention because it is a

pre-existing multilateral agreement

compatible with the environmentally

sound management of wastes as

required by the Convention. Therefore,

today’s promulgation of Subpart H as

part of the RCRA hazardous waste

export and import regulations, which is

necessary to implement the Decision,

will make it possible for persons within

the United States to continue exporting

and importing Basel-covered RCRA

hazardous waste for recovery within the

OECD, even if other OECD countries are

Parties to the Basel Convention.

Additionally, today’s rule will facilitate

harmonization of U.S. regulations with

European Union regulations on waste

exports and imports, which went into

effect on May 6, 1994. Future legislative

and regulatory actions will be needed to

more fully implement this Decision.

A. Good Cause Exception to Notice and

Comment Requirement

The Decision sets out very specific

requirements for shipments of

hazardous waste destined for recovery.

EPA is implementing language that

essentially mirrors the Decision in order

to establish certain new requirements

that will be enforceable against

importers and exporters [EPA is making

only minimal, nonsubstantive changes

to the OECD language in order to

conform today’s rule to existing RCRA

rules (e.g., substituting the RCRAdefined term ‘‘transporter’’ for the term

‘‘carrier’’ used in the Decision)]. EPA is

promulgating these rules without first

providing notice and opportunity to

comment. Under the Administrative

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

553(b)(B), an agency may forgo notice

and comment in promulgating a rule

when, according to the APA, the agency

for good cause finds (and incorporates

the finding and a brief statement of

reasons for that finding into the rules

issued) that notice and public comment

procedures are impracticable,

unnecessary, or contrary to the public

interest. For the reasons set forth below,

EPA believes it has good cause to find

that notice and comment would be

unnecessary and contrary to the public

interest and therefore is not required by

the APA.

EPA finds that notice and comment

procedures are unnecessary in

connection with the promulgation of

today’s rule because EPA is precluded

from modifying the rule in any

meaningful way in response to public

comment. The requirement to

implement this Decision virtually as

written derives from the following.

First, the United States has entered

into a legally binding commitment with

the other OECD countries to implement

the Decision virtually as written.

Accordingly, today’s rulemaking is

analogous to a codification of statutory

requirements, in which an agency

assumes the ministerial,

nondiscretionary functions of

translating requirements to regulatory

form [see United Technologies Corp. v.

EPA, 821 F.2d 714, 720 (D.C. Cir. 1987)

(finding that EPA had good cause to

omit notice and comment for a rule

codifying portions of the 1984

amendments to RCRA); Metzenbaum v.

Federal Energy Regulatory Commission,

675 F.2d 1282, 1291 (D.C. Cir. 1982)

(finding orders implementing statutory

waiver were nondiscretionary acts

required by such waiver and that notice

and comment procedures were

unnecessary and possibly contrary to

the public interest ‘‘given the expense

that would have been involved in the

futile gesture’’)]. Although the Decision

is neither a statute nor a court order and

imposes no requirements directly on

U.S. persons, the U.S. Department of

State has determined that the Decision

is an international agreement creating

binding commitments on the United

States under the terms of the OECD

Convention. By consenting to the

Decision, the United States Government

has agreed to promulgate regulations

necessary to ensure that the United

States can uphold the agreement.

Furthermore, EPA has determined that

no statutory change to the Resource

Conservation and Recovery Act (RCRA)

is needed because RCRA currently

authorizes EPA to promulgate rules

governing imports and exports of

hazardous waste, and contains adequate

authority to promulgate the

requirements of the Decision.

Second, today’s rule cannot deviate

materially from the Decision because, as

a practical matter, other OECD countries

may refuse to accept U.S. shipments of

waste for recycling that do not conform

to the procedures agreed to in the

Decision. Such countries also may

refuse to allow wastes to be shipped to

the U.S. if the U.S. cannot carry out its

duties as specified in the Decision.

Deviation from the regulatory scheme
16292 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

articulated in the Decision in response

to comments might preclude the U.S.

from implementing the Decision and

therefore from satisfying its

international commitments.

Third, EPA must implement the

Decision virtually as written because

modifications could defeat the goal of

achieving an internationally consistent

regime to control the import and export

of hazardous and other wastes destined

for recovery. EPA believes that parallel

implementation of the Decision within

the U.S. and other OECD countries is

crucial to ensuring that the import and

export of wastes destined for recovery

proceed in accordance with an

internationally integrated regime.

Without the uniform implementation of

the controls it prescribes, an

internationally consistent regime is not

possible, and many of the

environmental benefits of the Decision

(and the Basel Convention) will be lost.

EPA also believes that it has good

cause to find that prior notice and an

opportunity to comment would not

serve the public interest. As noted

above, the movement of RCRA

hazardous wastes destined for recovery

could be halted between the United

States and the OECD countries,

particularly those that are parties to the

Basel Convention, if the United States

modified the regulations in response to

comment such that the regulations

failed to conform to the OECD Decision.

EPA believes that the continued

movement and recovery of such wastes

is environmentally and economically

beneficial. The United States, therefore,

encourages the environmentally sound

recovery of wastes, particularly

hazardous wastes, as an alternative to

disposal [see, e.g., 42 U.S.C. 6902(a)(6),

6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA

believes that the import and export of

wastes among OECD countries for

purposes of recovery serves the public

interest by making waste management

facilities in the OECD available to waste

generators in the U.S. and other OECD

countries, thereby providing additional

assurance that wastes amenable to

recovery operations will be managed in

an environmentally sound manner. The

United States’ failure to implement the

Decision in the form approved by the

OECD countries could thwart this

objective.

In further support of its finding that

the public interest is not well served by

the allowance for comment on this

rulemaking, EPA also notes that the

regulatory burdens of this rule flow

from the Decision itself and are not

materially affected by the promulgation

of today’s rule. Because a number of

OECD countries to date have fully

implemented the Decision, many U.S.

importers and exporters of wastes

destined for recovery who seek to trade

with OECD countries in effect already

are subject to the requirements of the

Decision through those countries’

controls on their imports and exports.

For example, these countries may

already require, as a condition of

authorizing the shipment, that U.S.

participants adhere to the Decision’s

contracting or notice requirements, even

though those participants are not yet

required to do so under U.S. law. Thus,

it is the implementation of the Decision

by other OECD countries, rather than

the implementation of today’s rule, that

has the most profound effect on the

regulated community. Because today’s

rule merely formalizes the existing

regulatory framework to which the

regulated community is already subject,

its promulgation without notice and

comment does not detrimentally affect

those persons [see National Helium

Corp. v. Federal Energy Administration,

569 F.2d 1137, 1146 (Temp. Emer. Ct.

App. 1978)]. Indeed, as noted above,

today’s rule ameliorates the effects of

foreign laws on U.S. persons by making

it possible for RCRA hazardous waste

destined for recovery to move between

the U.S. and other OECD countries

without being stopped or rejected for

failure to conform to the Decision.

Finally, where EPA believes the OECD

Decision is open to interpretation and

affords EPA some flexibility in

interpreting and implementing its

requirements, EPA remains free to

initiate a separate rulemaking process

on those issues, following all

appropriate notice and comment

procedures.

For the reasons set forth above, EPA

believes that it has good cause to find

that implementation of notice and

comment procedures for today’s rule

would be unnecessary and contrary to

the public interest, and therefore is not

required under 5 U.S.C. 553(b)(B) to

initiate a comment period.

B. Effective Date

Section 3010(b) of RCRA requires EPA

to set the effective date for rules

promulgated under Subtitle C of RCRA

at six months after the date of

promulgation unless (1) the regulated

community does not need six months to

come into compliance; (2) the regulation

responds to an emergency; or (3) there

is other good cause. EPA believes that

the regulated community will not need

more than 90 days to become familiar

with today’s rule and to begin

implementing its requirements because

the new requirements refer primarily to

the notices and consents that are already

required under existing law as a

condition to the import or export of the

wastes destined for recovery. Moreover,

EPA believes that the regulated

community is capable of, and indeed

has an interest in, immediate

compliance with the new rule in order

to continue to be able to import and

export wastes subject to the Decision,

since most OECD countries have already

revised their regulations to incorporate

the Decision’s requirements. EPA also

believes it has good cause to make this

rule effective 90 days from publication,

for the reasons set forth above in

connection with the APA’s public

notice requirement. Therefore, EPA

concludes that the six month effective

date provision of RCRA 3010(b) does

not apply.

II. Background

A. History of the OECD and

Development of the Council Decision

C(92)39/Final

The OECD was chartered to assist

member countries in achieving high

economic growth, employment, and a

rising standard of living while ensuring

that human health and the environment

are protected. Presently there are 25

member countries of the OECD:

Australia, Austria, Belgium, Canada,

Denmark, Finland, France, Germany,

Greece, Iceland, Ireland, Italy, Japan,

Luxembourg, Mexico, Netherlands, New

Zealand, Norway, Portugal, Spain,

Sweden, Switzerland, Turkey, the

United Kingdom, and the United States.

The OECD was the first international

organization to establish a working

group to analyze issues relating to

transfrontier movements of hazardous

waste. In 1974, the OECD Environment

Policy Committee, which guides all

OECD work involving environmental

matters, created the Waste Management

Policy Group (WMPG), which includes

government officials responsible for

controlling waste management in their

respective member countries.

In 1981, the WMPG began to prepare

guidelines to control transfrontier

movements of hazardous waste.

Thereafter, because some members

(including the United States) enacted

legislation controlling transfrontier

shipments of hazardous waste, the

OECD’s primary mission was to work

toward harmonization of controls

among the member countries.

Much of the OECD’s early work,

including lists identifying wastes to be

covered by an international agreement

controlling transfrontier waste

movements, was adopted by the United

Nations Environment Programme

(UNEP) and incorporated into the Basel
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16293

2For example, today’s regulations implementing

the OECD Decision will be modified once EPA

obtains legislative authority to control the

transfrontier movements of household wastes,

which appear on the OECD amber list.

Convention on the Control of

Transboundary Movements of

Hazardous Wastes and Their Disposal

(Basel Convention). More detailed

discussion of the Basel Convention can

be found in the Federal Register at 57

FR 20602 (May 13, 1992).

Following completion of the Basel

Convention and a 1991 OECD Council

Decision on wastes, an Advisory Panel

to the OECD’s Waste Management

Policy Group was chartered in January

1991. Its purpose was to study whether

a streamlined set of procedural notice

and consent requirements could be

agreed upon by member countries for

transfrontier movements of waste

destined for recovery. The panel

developed a graduated control system

and lists of covered wastes (green,

amber, and red). The proposed system

was presented to the WMPG as a draft

Decision in November 1991, for

submission to the OECD Environment

Policy Committee. In December 1991,

the Environment Policy Committee

returned the draft Decision to the

WMPG for further refinement. A month

later, the WMPG revised the Decision,

and through the Environment Policy

Committee, submitted the Decision

document to the OECD Council. On

March 30, 1992, the Council adopted

the Decision, with only Japan

abstaining. Japan later adopted and

began implementing the Decision in

December 1993.

B. Relationship to the Basel Convention

The Basel Convention is an

international agreement controlling the

transfrontier movement of hazardous

and other wastes. While requiring

movements between Basel Parties to be

managed in an environmentally sound

manner, it prohibits movements

involving Parties and non-Parties absent

a separate bilateral, multilateral, or

regional agreement or arrangement that

is compatible with the aims and

purposes of the Convention (for preexisting agreements) or that contains

provisions that do not derogate from the

environmentally sound management

required by the Basel Convention (for

newly negotiated agreements). Such

agreements are recognized under Article

11(2) of the Convention. As a preexisting arrangement under Article

11(2), the Decision averts potential trade

disruptions between members of the

OECD that are Parties to the Basel

Convention and members that are not.

The U.S. will not become a Party to

the Basel Convention until it ratifies the

Convention. In order to ratify the

Convention, the U.S. must have

additional statutory authority to

implement its terms. Once the U.S. has

the necessary authority, the export and

import regulations at 40 CFR 262

Subparts E and F will be modified.

Exports and imports among OECD

countries of waste destined for recovery

will be governed by the procedures set

forth in today’s regulations and by any

future regulatory changes made to

implement the Decision (including

future changes to the Decision).2

Exports and imports of RCRA hazardous

wastes within the OECD for purposes

other than recycling (e.g., disposal or

treatment) will continue to be subject to

the current RCRA export and import

regulations.

C. Summary of Decision

OECD Council Decision C(92)39/

FINAL establishes a graduated control

system for the transfrontier movement

of wastes destined for recovery

operations. The Decision reflects

recognition by the OECD of the

importance of transboundary movement

of wastes for recovery, because highly

specialized recovery facilities are not

found in every country and because

OECD generally supports a waste

management hierarchy in which

recovery is more desirable than final

disposal. The goal of the negotiations

was to ensure that recovery of materials

from wastes could continue

internationally, provided the shipments

were managed in an environmentally

sound and efficient manner.

The OECD has developed draft

guidance on environmentally sound

recovery practices for particular wastes.

In addition, some of the member

countries are actively engaged in the

development of technical guidelines for

environmentally sound management of

hazardous and other wastes under the

Basel Convention. To date, seven

technical guidelines on management of

specific waste streams and waste

management practices have been

adopted by the Basel Parties, along with

a framework document outlining the

elements to be included in the technical

guidelines. They are: hazardous waste

from the production and use of organic

solvents; waste oils from petroleum

origins and sources; wastes comprising

or containing PCBs, PCTs, and PBBs;

wastes collected from households;

specially engineered landfills,

incineration on land, and used oil rerefining or other re-uses of previously

used oil. The purpose of the technical

guidelines is to assist developing

countries in becoming self-sufficient in

waste management as they industrialize

and develop their economies. The Basel

Parties have agreed to develop other

technical guidelines as resources

permit.

The Decision establishes a range of

different procedural controls depending

on whether a waste appears on the

Decision’s green, amber, or red list (or

no list, in which case hazardous wastes

are regulated as red-list wastes). Greenlist wastes require no controls beyond

those typically imposed in normal

international commercial shipments.

Amber-list wastes, which are considered

hazardous, may be shipped for recovery

under one of three arrangements: (1)

movement pursuant to a shipment-byshipment written notification by the

export notifier or competent authority of

his government to the competent

authorities of OECD concerned

countries (i.e., exporting, importing and

transit), and written or tacit consent

from the relevant OECD importing and

transit countries; (2) movement

pursuant to a general notification and

written or tacit consent from the

competent authorities of the relevant

OECD importing and transit countries;

or (3) movement to facilities preapproved by the importing country to

accept that waste type which requires

only prior written notification to the

competent authorities of the concerned

countries. In all cases, amber-list wastes

must be accompanied by a tracking

document and the waste must be

shipped under a legally binding

contract, chain of contracts, or

equivalent arrangements if the notifier

and receiving facility are part of the

same legal or corporate entity. Red-list

wastes are handled in the same manner

as amber-list wastes except that prior

written consent from the importing and

transit countries is always required and

no facilities are pre-approved to accept

these wastes.

In addition to assigning specific

wastes to the green, amber or red lists,

the Decision allows for each member

country to employ its ‘‘national

procedures’’ to determine whether a

waste is considered hazardous under its

laws and regulations, and therefore

whether it is subject to amber or red

controls. Thus, as discussed in more

detail below, a waste that is not

hazardous as determined by national

procedures will not be subject to amber

or red controls regardless of which list

it appears on, a green-list waste that is

considered hazardous will be subject to

amber or red controls, while an unlisted

waste considered hazardous as

determined by national procedures will

be subject to red controls (see § II. C. 2.

d.)
16294 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

3These 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). See

Appendix 1 of Council Decision C(92)39/Final in

Appendix 3 of today’s preamble.

1. Waste Lists

a. Green, Amber, and Red Lists. The

waste lists (green, amber, and red) are

intended to be comprehensive, i.e., any

waste subject to transfrontier movement

should be identified on one of three

lists. Wastes identified on the green list

are presumed to be non-hazardous

while amber-list and red-list wastes are

presumed to be hazardous. However,

transfrontier movements of red-list

wastes for recovery are presumed by the

OECD to pose a greater potential risk

than amber-list wastes because of their

hazardous properties or because there is

less experience in recovery of red

wastes as compared to amber wastes.

The Decision allows a country to use its

national procedures to determine which

wastes are hazardous.

b. Unlisted Wastes. Although the

green, amber, and red lists of wastes are

intended to be comprehensive, it is

possible that there are wastes moving

internationally for recovery that are not

on any list. The WMPG developed the

Review Mechanism in accordance with

the General Provisions section of the

Decision, to evaluate and assign

unlisted waste to an appropriate list.

The Review Mechanism is administered

by an OECD group known as the

Working Party. Under the Review

Mechanism, the Working Party forwards

recommendations to the OECD Council

through the WMPG, the Pollution

Prevention and Control Group, and the

Environment Policy Committee. The

Working Party also identifies other

implementation issues that should be

addressed under the Review

Mechanism.

In implementing the Review

Mechanism, the Working Party uses the

criteria in Annex 2 of the OECD

Decision to evaluate wastes and to

formulate recommendations regarding

their placement on a specific list. The

criteria are divided into two major

categories: waste properties (e.g., degree

of hazard, physical state) and

management practices (e.g., handling

prior to recovery). The terms of

reference for the Review Mechanism

require that changes to the waste lists be

proposed or supported by at least one

member country and circulated to all

members at least six weeks prior to

convening the Review Mechanism’s

Working Party.

Persons who export hazardous wastes

from the U.S. to OECD countries for

recovery are encouraged to identify

hazardous wastes which are not

currently identified on any list and to

provide EPA with waste-specific

information responsive to the questions

in Annex 2 of the Decision. This

information will be evaluated by the

Agency prior to submission to the

Review Mechanism for consideration.

Hence, it is critical that complete

information be provided to EPA at least

two months (and preferably earlier)

prior to scheduled meetings of the

Working Party to conduct the Review

Mechanism process. Until such time as

an unlisted waste is placed on a

particular list pursuant to the Review

Mechanism, the Decision provides that

unlisted wastes considered hazardous

under national procedures move under

red controls and that unlisted waste

considered non-hazardous under

national procedures move under green

controls.

c. National Procedures. The OECD

amber and red waste lists are quite

broad, consisting of many generic

categories which may include both

hazardous and non-hazardous wastes.

The Decision therefore allows a country

to determine if a waste on an OECD list

is hazardous based on its ‘‘national

procedures’’ or ‘‘national tests.’’ During

the negotiations of the Decision, the

U.S. interpreted national procedures to

include both hazardous waste testing

and regulatory determinations. For

purposes of today’s rule, EPA has

determined that a waste is hazardous

under U.S. ‘‘national procedures’’ if the

waste meets the following requirements

under RCRA: (a) meets the Federal

definition of hazardous waste in 40 CFR

261.3; and (b) is subject to either the

Federal hazardous waste manifesting

requirements in 40 CFR 262, or to the

universal waste management standards

of 40 CFR 273, or to State requirements

analogous to Part 273. (As stated earlier,

EPA may, in the future, identify wastes

under other statutes that are subject to

the OECD Decision). [Note: For

purposes of brevity and convenience,

only the manifest criterion (and not the

universal waste criteria) will be

mentioned specifically throughout the

preamble as to whether EPA considers

a waste to be a hazardous waste and

therefore subject to today’s rule.

However, we emphasize that universal

wastes (which are considered hazardous

wastes but are not subject to manifest

requirements) are also subject to today’s

rule. Further discussion of universal

wastes can be found in section IV. B. 6.].

This interpretation is consistent with

the Agency’s 1986 export notification

policy [see 51 FR 28664 (Aug. 8, 1986)],

in which the Agency concluded that

wastes that are not subject to

manifesting domestically do not pose a

risk warranting export notification.

Further discussion of EPA’s

interpretation of national procedures as

they apply to recyclable waste can be

found in section IV. B. 1.

2. Control Procedures

The specific control procedures

required for the export or import of

wastes for recovery within the OECD

depend on whether the relevant

exporting, importing and transit

countries consider a waste to be subject

to green, amber or red controls under

their national procedures. Significantly,

a particular waste’s placement on one of

the OECD lists is not determinative of

the level of control applicable to the

transfrontier shipment of such a waste

for recovery. The lists represent an

attempt to reach a consensus among the

member countries on the level of control

applicable to certain types of wastes;

they do not supersede a country’s

authority to apply different levels of

control for a particular waste pursuant

to its national procedures. Accordingly,

although a waste’s placement on the

OECD green, amber and red waste lists

may indicate the applicable level of

control in most cases, exporters and

importers must determine which level

of control applies to a particular

shipment of waste under the national

procedures of each affected country.

All waste shipments that are subject

to today’s final rule must be sent to

facilities that are allowed under the

applicable laws of the importing

country to receive and perform recovery

operations on the wastes. In addition,

the Decision requires that all

transfrontier movements of waste within

the OECD comply with the provisions of

applicable international transport

agreements.3 Any transit of wastes

through a non-member country is

subject to all applicable international

and national laws and regulations.

a. Green-List Wastes. Wastes on the

green list that are exported from the U.S.

to OECD countries or imported to the

U.S. from such countries for recovery

are subject to all existing controls

normally applied to commercial

transactions, but are not subject to any

additional controls under the Decision.

Such controls may include bills of

lading, customs declarations,

international insurance, or other

controls.

However, if a green-list waste is

‘‘sufficiently contaminated’’ (as

described below) to meet the criteria for

inclusion on the amber or red lists, then
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16295

4 If the transit country is not an OECD member

country, EPA’s regulations at Part 262, Subpart E

apply. Under those regulations, EPA will provide

notice to such country of the proposed waste

movement, although under Subpart E consent of the

non-OECD transit country is not required. However,

EPA would transmit any response from the transit

country to the exporter.

5A copy of the recommended OECD notification

and tracking forms can be found in the docket for

this rule.

6Note that instead of the notifier, the competent

authority of the exporting country may, in

accordance with domestic laws, decide to transmit

this notification to importing and transit countries.

shipment must be managed in

accordance with the applicable amberlist or red-list controls. For the purpose

of implementing the Decision, EPA is

interpreting ‘‘sufficiently contaminated’’

to mean a green-list waste that is

considered hazardous under U.S.

national procedures (i.e., waste or waste

mixture meets the Federal definition of

hazardous waste in 40 CFR 261.3 and is

subject to Federal manifest

requirements). Such wastes will be

subject to amber-list controls, unless the

reason for the contamination is mixture

with a red-list waste or with a

hazardous waste that is not found on

any list. In those cases, the waste will

be subject to red-list controls.

As will be discussed further, the

Decision acknowledges that certain

green-list wastes may be subject to

amber-list or red-list controls by certain

countries, in accordance with their

domestic legislation and the rules of

international law.

b. Amber-List Wastes. Shipments of

amber-list wastes destined for recovery

within the OECD are subject to the

amber-list control system. If, however,

the waste is sufficiently contaminated

with other wastes subject to red controls

(i.e., red-list wastes or unlisted

hazardous wastes) the waste then

becomes subject to the red control

regime. In addition, such waste could

potentially be subject to other laws and

regulations.

Amber controls require that a

shipment of amber-list waste move

pursuant to a legally binding written

contract or chain of contracts (or an

equivalent arrangement if the notifier

and the receiving facility are part of the

same corporate or legal entity). The

contract must include a provision for

alternate management or re-export of the

waste if it cannot be managed as

planned and must include financial

guarantees for such alternate

management if so required by the

competent authorities of any concerned

country, in accordance with applicable

national or international laws. The U.S.

does not require any financial

guarantees for international waste

shipments at this time.

Prior to the proposed export, the

notifier must provide written

notification to the competent authorities

of all concerned countries to allow them

the opportunity to deny the shipment.

As defined in § 262.81(g) of today’s rule,

the notifier is the person under the

jurisdiction of the exporting country

who has, or will have at the time the

transfrontier movement commences,

possession or other forms of legal

control of the wastes and who proposes

their transfrontier movement for the

ultimate purpose of submitting them to

recovery operations (see section III. B.

9.). In certain cases, a general

notification will be permissible. The

competent authority of the exporting

country may elect to perform the

notification duties. EPA is the United

States’ competent authority for OECD

purposes. Therefore, under today’s rule,

the notifier will provide written

notification to EPA for exports from the

U.S. of RCRA hazardous wastes subject

to amber-list controls, and EPA will in

turn notify the competent authorities of

all concerned OECD countries. The

competent authority of the importing

country must issue an

Acknowledgement of Receipt to the

notifier and to the competent authorities

of the exporting and transit countries

within three working days of receiving

the export notice. For the purposes of

this rule, ‘‘transit country’’ refers only to

a transit country that is a member of the

OECD and is a Party to the Decision,

including Canada [see section III. B. 4.

of today’s preamble and § 262.81(d)].

The competent authorities of the

importing and transit countries have 30

days to consent or object to the

shipment. However, if the competent

authorities of the importing and transit

countries do not notify the notifier in

writing within 30 days of issuance of

the Acknowledgement of Receipt that

the request has been denied or that

additional information is required, then

tacit consent is deemed to be granted,

and the shipment may proceed as

specified in the notification.

If a transit country denies consent, the

proposed movement must be rerouted

and a new notification must be

submitted to EPA to forward to the new

transit country. The movement may not

commence until that OECD country

tacitly or expressly consents to the

movement.4

The competent authority of the

importing country may also allow a

notifier to submit a general notification

for the shipment of amber-list waste

when that type of waste is to be sent

periodically by the same notifier to the

same facility. The notification lasts up

to one year and may be renewed. In

addition, OECD countries may designate

facilities that they have pre-approved

for receipt of amber wastes (see section

III. C. 1. c.). When the U.S. receives

notice from the OECD that specific

facilities are pre-approved by the

competent authority of a foreign

government, EPA will undertake to

make that information available to U.S.

notifiers. At the present time, there are

no U.S. facilities pre-approved for

receipt of amber wastes (see section

VIII).

Waste shipments must be

accompanied by a tracking document.

The WMPG developed forms in March

1994 which are recommended to be

used for notification and tracking

purposes.5 These forms may be used by

U.S. notifiers but will not be required

until approved by OMB and codified

into the regulations. For hazardous

wastes exported from or imported to the

United States, a uniform hazardous

waste manifest also must accompany

the waste shipment while it is in the

jurisdiction of the U.S. (see section III.

D.).

c. Red-List Wastes. The requirements

for red-list wastes are similar to the

requirements for amber-list wastes with

one very important exception: tacit

consent is not permissible. The red

controls include: a written contract,

chain of contracts, or equivalent

arrangement where the notifier and

recovery facility are part of the same

legal or corporate entity; written

notification to the competent authorities

of the concerned countries;6 prior

consent of the importing and transit

countries; and a tracking document

accompanying the shipment. However,

unlike amber-list wastes, red-list wastes

cannot be shipped unless all necessary

consents are obtained in writing. (See

section III. C, D, & E for additional

information).

It is important to note that, within the

U.S., in addition to the OECD

requirements, some red-list wastes also

may be subject to requirements under

other legal authorities, such as

regulations promulgated under the

Toxic Substances Control Act (e.g., PCB

regulatory controls promulgated in 40

CFR Part 760; see section IV. B. 7. for

additional information).

d. When Wastes are Not Considered

Hazardous by All Concerned Countries.

There may be cases in which the

concerned countries (i.e., exporting,

importing, and transit) disagree over the

level of control to be assigned to a waste

on the OECD lists.

The Decision provides guidance in

section II(4) for cases where the
16296 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

exporting country, using its national

procedures, does not consider a waste

on the amber or red OECD lists to be

hazardous, while the importing country

does. In such cases, the importing

country shall assume all obligations

assigned to the exporting country in

sections IV or V of the Decision, as

applicable, particularly with regard to

notification requirements. This means

that the competent authority of the

importing country or the importer

would notify the competent authorities

of the exporting country, for information

purposes, and transit countries, for

purposes of obtaining consent, prior to

the proposed import. If the exporting

country does not consider the waste to

be hazardous under its national

procedures, then no obligations under

the Decision rest on the exporter and the

exporting country. For example, if the

U.S. does not consider a waste to be

hazardous, today’s rule imposes no

obligations on the U.S. exporter.

However, the U.S. exporter may need to

provide information to the importer

(e.g., consignee, or owner or operator of

the recovery facility) so that the

importer can supply the competent

authorities of the concerned countries

with the necessary notification

information. This information exchange

requirement may be worked out in the

contract, chain of contracts, or

equivalent arrangement for parties of the

same legal or corporate entity, so U.S.

waste handlers should anticipate such

requests from waste trading partners in

other OECD nations. Requests may go as

far as requiring the U.S. exporter to

notify all competent authorities in the

concerned countries for wastes not

considered hazardous in the U.S.

In cases where only the exporting

country considers the amber- or red-list

waste to be hazardous, the country’s

competent authority or exporter would

notify and seek consent of the importing

and transit countries prior to shipment

in accordance with the appropriate

amber-list or red-list controls. Although

these countries do not consider the

waste to be hazardous using their

national procedures, the consent of the

importing and transit countries is still

necessary under the laws of the

exporting country. The importer and

exporter would also be required to

comply with any contractual

requirements imposed by the exporting

country.

The Decision also recognizes in

section II(6) the right of OECD countries

to require amber-list or red-list controls

for wastes identified on the green list, in

accordance with domestic legislation

and international law, for the purpose of

protecting human health and the

environment. OECD countries are

required to inform the Secretariat of

such controls. For example, Austria has

stated that it subjects some green-list

wastes and all amber-list wastes to redlist controls, while Sweden subjects

some green-list wastes to amber- or redlist controls. Under today’s rule, the

U.S. requires any green-list wastes that

are hazardous under RCRA and subject

to manifesting requirements to move

under amber controls. In these cases, the

wastes are subject to the country’s

controls only while they are in that

country’s jurisdiction. Of course, the

exporter or importer may, as a

contractual matter, have to comply with

amber- or red-list control requirements

before the waste enters the jurisdiction

of the country that considers the waste

to be hazardous.

The Decision does not address cases

where the exporting and importing

countries consider a waste to be nonhazardous under their national

procedures but the transit nation does

consider it hazardous. In such

situations, the Agency views the transit

nation taking on similar responsibilities

as the importing nation in situations

when an importing nation is the only

country to consider a particular waste

hazardous (discussed above). That is,

the transit country shall assume the

obligations of the exporting and

importing countries. In practice, this

may mean that waste handlers in transit

nations may need to request information

from U.S. waste exporters through

contractual arrangements in order to

seek and obtain consent from the

competent authorities of the transit

countries.

e. Availability of Waste Lists. The

current waste lists are available in the

RCRA docket under the number listed

above. The regulated community is

encouraged to periodically check the

docket for the latest lists.

III. Specific OECD Requirements and

Relationship to RCRA

A. Differences Between the OECD

Decision and Today’s Rule

Today’s regulations implementing the

Decision are applicable only to

hazardous wastes destined for recovery

that (1) are hazardous under RCRA and

subject to manifesting requirements, and

(2) are sent to or received from an OECD

country other than Canada and Mexico.

All exports and imports of hazardous

waste to or from a non-OECD country,

to Canada or Mexico (see § VI), or to

OECD countries that are not Basel

Parties for the purpose of treatment

(other than recovery) or final disposal

must be in compliance with current

regulations discussed immediately

below.

Current RCRA regulations differ from

the terms of the Decision being

implemented today. A summary of

differences between the two are shown

in Table 1 for comparative purposes

only and should not be used as a

substitute for today’s regulations.

EPA’s current export regulations are

codified in 40 CFR 262, Subpart E. The

requirements include: notification to

EPA at least 60 days prior to export so

that EPA can notify the importing and

transit countries, prior written consent

by the importing country, a copy of the

EPA Acknowledgement of Consent

attached to the manifest accompanying

each shipment, and movement of the

shipment in conformance with the

terms of such consent. The requirements

in Part 262 also include special manifest

provisions, exception reporting, annual

reporting, and recordkeeping. Special

transporter requirements are in 40 CFR

263.

40 CFR part 262, Subpart F, requires

that U.S. hazardous waste importers

comply with the requirements for

generators (40 CFR 262) and specifies

that the importer must indicate the

name and address of the foreign

generator on the manifest. In addition,

40 CFR 264.12 and 265.12 require any

U.S. hazardous waste management

facility subject to Parts 264 or 265 that

arranges for the receipt of hazardous

waste from a foreign source to provide

a one-time notification to EPA at least

4 weeks prior to receiving the waste.

EPA also reminds importers that they

must comply with the land disposal

restrictions once the wastes enter the

United States (see 40 CFR Part 268).
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16297

TABLE 1.—SUMMARY OF RELATIONSHIP BETWEEN CURRENT RCRA EXPORT/IMPORT REGULATIONS AND REGULATIONS

IMPLEMENTING THE OECD DECISION

Issue Current RCRA regulation (40 CFR

262.50–262.60) Today’s regulations implementing OECD decision (40 CFR 262.80–262.89)

General:

Applicability ..... Governs all imports and exports of

RCRA hazardous waste subject to

Federal manifesting requirements in

40 CFR Part 262 regardless of final

disposition.

Scope of wastes covered same as current regulations. However, new Subpart

H applies only to waste imports and exports for recovery between U.S. and

OECD countries, excluding Canada and Mexico.1 For purposes of this rule,

procedural controls apply to amber-list, red-list, and unlisted wastes that are

RCRA hazardous and manifested. Green-list wastes are exempt unless hazardous under U.S. national procedures.

Imports:

Notification ...... One-time advance notice per waste

stream per foreign source required

for treatment, storage, or disposal

(TSD) facilities regulated under Part

264/265.

Current requirement for TSDs for one notification maintained. In addition, EPA

will receive notice from foreign exporter or competent authority of his country,

per the Decision.

Approval to import.None required 2 ...................................... For import to occur, EPA must give tacit or written consent for amber-list wastes

and written consent for red-list wastes. Written consent and objections must

be sent to notifier and competent authorities of concerned countries.

Tracking .......... A uniform hazardous waste manifest is

required from the time the shipment

enters the U.S. until it reaches the

designated facility.

Same as current regulations, plus additional OECD tracking information required. Tracking document must stay with the shipment until received by recovery facility. Recovery facilities under Parts 264/265 must return signed

copy to notifier and competent authorities of concerned countries.

Financial assurance for alternate management.None required ........................................ None required under U.S. law for U.S. entities. If foreign exporter’s government

requires such assurance, foreign notifier may require U.S. importer to have financial assurance as a condition of their contract.

Contracts ........ None required ........................................ A legally binding contract, chain of contracts, or equivalent arrangement between parties owned by the same corporate entity, specifying each responsible party handling shipments of amber-list or red-list wastes and the responsible party in case alternate management, re-exportation or re-importation is

necessary because arrangements for the shipment or recovery operation cannot be carried out as foreseen. Additional provisions apply to recognized traders as defined in § 262.81(i).

Exports:

Notification ...... Notification to EPA at least 60 days

prior to initial shipment is required;

notice then transmitted to importing

and transit countries. Notice may

cover multiple shipments for up to 12

months.

Same as current regulations with additional information requirements, except

that notification to EPA must occur at least 45 days prior to initial shipment;

may use OECD-recommended notification form; EPA will notify competent

authorities of importing and transit countries.

Approval of export by competent authority of importing country.The importing country must consent to

the export. EPA notifies exporter by

sending Acknowledgement of Consent or objection.

For amber-list wastes, consent presumed 30 days from the date the competent

authority of the importing country acknowledges receipt of notification unless

a denial or request for additional information is received; no consent from importing country needed if waste is destined for pre-approved recovery facility,

although prior notification is required. For red-list wastes, written consent is

necessary to export.

Approval of export by competent authority of

transit country.

None required. As a practical matter,

however, since EPA transmits any response received from the transit

country, EPA expects that the exporter would reroute shipment if the

transit country objects.

For amber-list wastes, consent is presumed 30 days from the date the competent authority of the transit country acknowledges receipt of notification unless a denial or request for additional information is received. For red-list

wastes, written approval is necessary to export. No consent is required from

transit countries that are not OECD members. As a practical matter, however,

EPA expects that the exporter would reroute shipment if the transit country

objects.

Tracking .......... Uniform hazardous waste manifest

must accompany the shipment while

in the U.S and a copy must be left

with Customs; EPA Acknowledgement of Consent also must be attached. Exporter must receive written

confirmation of delivery to foreign

consignee.

Substantively same as current regulations, plus additional OECD tracking information required. OECD-recommended notification and tracking document or

other paper supplying the required information may be used until OECD form

approved by OMB and incorporated into the regulations. Tracking document

must stay with the shipment until received by recovery facility. Recovery facility must return signed copy to export notifier and competent authorities of

concerned countries.

Financial assurance for alternate management.None required ........................................ None required under U.S. law for U.S. entities. If foreign importing or transit

countries require such assurance, U.S. exporters may be required to have financial assurance as a condition of their contract or face having proposed

shipments denied.

Recordkeeping Copies of manifests, notifications of intent to export, EPA Acknowledgments

of Consent, exception reports, and

annual reports must be maintained

for at least 3 years.

The same as current requirements except that written consent from competent

authorities of concerned countries is maintained in lieu of EPA Acknowledgement of Consent.
16298 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

7Although Canada is subject to the Decision,

movements of waste between the U.S. and Canada

that otherwise would be governed by the Decision

will continue to be controlled by the U.S./Canada

bilateral agreement and EPA’s current regulations.

8Mexico joined the OECD in June 1994.

Movements of waste between the U.S. and Mexico

will continue to be controlled by the U.S./Mexico

bilateral agreement and EPA’s current regulations,

until such time as the U.S. and Mexico agree to

switch to procedures under the OECD Decision.

TABLE 1.—SUMMARY OF RELATIONSHIP BETWEEN CURRENT RCRA EXPORT/IMPORT REGULATIONS AND REGULATIONS

IMPLEMENTING THE OECD DECISION—Continued

Issue Current RCRA regulation (40 CFR

262.50–262.60) Today’s regulations implementing OECD decision (40 CFR 262.80–262.89)

Reporting ........ Exporters must prepare and submit an

annual report and exception reports

to EPA.

Same as current requirements.

Contract .......... None required ........................................ A legally binding written contract, chain of contracts, or equivalent arrangement

between parties of the same legal or corporate entity specifying the name of

each responsible person handling shipments of amber-list or red-list wastes

and the responsible party in case alternate management, re-exportation or reimportation is necessary because arrangements for the shipment or recovery

operation cannot be carried out as foreseen. Additional provisions apply to

recognized traders as defined in § 262.81(i).

1 Imports from and exports to Canada and Mexico are governed under the U.S./Canada bilateral agreement, the U.S./Mexico bilateral agreement, and EPA’s current regulations. These regulations include 40 CFR 262 Subparts E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of today’s regulations. 2For imports from Canada, the U.S./Canadian bilateral agreement requires notice and allows for tacit consent if no response is lodged 30 days

after the notice is received. For imports from Mexico, the U.S./Mexico bilateral agreement requires notice, but does not allow for tacit consent.

B. Definitions

Many of the following definitions in

the Decision are being codified in

today’s rule. In some cases, the OECD

definitions are somewhat different than

the current RCRA definitions. Where

they are, the differences are discussed.

The definitions codified at 40 CFR

260.10 (e.g., Transporter, etc.). continue

to apply to all terms not defined in

today’s rule.

1. Competent Authorities

Competent Authorities means the

regulatory authorities of concerned

countries having jurisdiction over

transfrontier movements of wastes

destined for recovery operations.

The competent authority will be the

agency or similar entity that has

authority over environmental or

hazardous waste issues in the receiving

country. A list of the contacts for

competent authorities of OECD

countries is provided in the docket for

this rule. The competent authority of the

United States is the U.S. Environmental

Protection Agency. All notices and

required information must be sent to the

Office of Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW,

Washington, DC 20460. The words

‘‘Attention: OECD Export Notification’’

should be displayed prominently on the

envelope.

2. Concerned Countries

Concerned Countries means the

exporting and importing OECD

countries and any OECD countries of

transit.

The OECD countries subject to this

Decision are: Australia, Austria,

Belgium, Canada,7 Denmark, Finland,

France, Germany, Greece, Iceland,

Ireland, Italy, Japan, Luxembourg,

Netherlands, New Zealand, Norway,

Portugal, Spain, Sweden, Switzerland,

Turkey, United Kingdom, and the

United States.8

3. Consignee

Consignee 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 importing

country.

Currently there is a definition of

‘‘consignee’’ at 40 CFR 262.51, which

means the ultimate treatment, storage,

or disposal facility in the receiving

country to which the hazardous waste

will be sent. The OECD’s definition,

however, refers to the first person to

take physical or legal custody of the

waste. This is broader than the Agency’s

definition in 40 CFR 262.51, but

imposes no new obligations on

importers. A consignee could be a

recognized trader, transporter, storage

facility operator, or recovery facility

operator. The OECD definition for

consignee will be codified today for

exports/imports of hazardous wastes

destined for recovery among OECD

countries to replace the current

definition found at 40 CFR 262.51.

4. Country of Transit

Country of Transit means any OECD

country other than the exporting or

importing country across which a

transfrontier movement of wastes is

planned or takes place.

The Agency interprets this definition

to mean the same as transit country,

which is currently codified at 40 CFR

262.51 except that, for purposes of this

Decision, it is limited to OECD countries

as defined at 40 CFR 262.58(a).

It also should be noted that the United

States made a declaration that a state is

a transit state or ‘‘country of transit’’

within the meaning of the Decision only

if wastes are moved, or are planned to

be moved, through its inland

waterways, inland waters, or land

territory. Thus, in the United States’

view, the movement of waste subject to

Subpart H through an OECD country’s

territorial sea but not through its inland

waterways, inland waters, or land

territory would not make that country a

transit country for the purposes of

today’s rule.

5. Exporting Country

Exporting Country means any OECD

country from which a transfrontier

movement of wastes is planned or has

commenced.

6. Generator

Generator means a person whose

activities create wastes.

It is the Agency’s interpretation that

the current RCRA regulatory definition

of generator found at 40 CFR 260.10 is

consistent with the OECD definition.

The RCRA definition states that a

‘‘generator’’ means any person, by site,

whose act or process produces

hazardous waste identified or listed in

40 CFR part 261 or whose act first

causes a hazardous waste to become

subject to regulation. This is particularly

relevant with respect to section II(8) of

the Decision, which provides that a

person who mixes two or more wastes,
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16299

or otherwise changes the physical or

chemical characteristics of the waste,

thereby creating a new hazardous waste

becomes the generator. Such persons

henceforth assume responsibility for

compliance with the generator duties

under RCRA and applicable notifier

provisions in today’s rule.

7. Importing Country

Importing Country means any OECD

country to which a transfrontier

movement of wastes is planned or takes

place for the purpose of submitting the

wastes to recovery operations therein.

8. International Waste Identification

Code

International Waste Identification

Code (‘‘IWIC’’) is the classification

system specified and described in OECD

Council Decision C(88)90(Final) of 27

May 1988.

Determining the International Waste

Identification Code for a particular

waste requires the completion of a

specified formula with information

provided in each of 6 Tables. Use of the

IWIC is not required by the Decision,

and as a practical matter, the IWIC has

not been used by all OECD countries;

therefore, the definition is not being

codified today.

9. Notifier

Notifier is the person under the

jurisdiction of the exporting country

who has, or will have at the time the

planned transfrontier movement

commences, possession or other forms

of legal control of the wastes and who

proposes their transfrontier movement

for the ultimate purpose of submitting

them to recovery operations.

When the U.S. is the exporting

country, notifier means a person

domiciled in the U.S. The Agency

recognizes that in different situations

recovery facilities, consignees,

recognized traders, or generators can act

as notifiers. If a person is a notifier, he

is also a primary exporter under 40 CFR

262.51.

10. OECD Area

OECD Area means all land or marine

areas under the national jurisdiction of

any OECD country. As used in these

regulations, the term OECD countries

means OECD areas.

11. Person

Person means any natural or legal

person whether public or private.

The Agency interprets this definition

to be consistent with the definition of

‘‘person’’ currently found at 40 CFR

260.10, which states that a Person

means an individual, trust, firm, joint

stock company, Federal Agency,

corporation (including a government

corporation), partnership, association,

State, municipality, commission,

political subdivision of a State, or any

interstate body.

12. Recognized Trader

Recognized Trader means a person

who, with appropriate authorization of

concerned countries, 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 transfrontier

movements of wastes destined for

recovery operations.

Under the Decision and today’s rule,

recognized traders who take physical or

other forms of control (e.g., legal) of the

waste may act as notifiers, consignees or

recovery facilities with all associated

responsibilities. As provided in § 262.86

of today’s rule, 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,

State, and local license or permit

requirements. There also may be cases

where recognized traders act as brokers

for transfrontier movements of wastes

that are not considered hazardous under

U.S. national procedures, but which are

considered hazardous by another OECD

country. To conduct business in that

OECD country, the broker would need

to comply with the provisions of the

Decision as implemented by the OECD

country. The broker’s responsibilities

would most likely be addressed in his

contract with his foreign business

associates. Recognized traders should

anticipate requests regarding contract

information in such cases.

13. Recovery Facility

Recovery Facility means an entity

which, under applicable domestic law,

is operating or is authorized to operate

in the importing country to receive

wastes and to perform recovery

operations on them.

Any facility in the United States that

is legally allowed to operate, to receive

wastes, and to perform recovery

operations and that conforms with any

applicable regulations may meet this

definition. This includes recovery

facilities that are not required to obtain

a RCRA permit. Manifested hazardous

waste shipments must, however, be

shipped to a RCRA designated facility

(authorized under 40 CFR Parts 264,

265, or 266 to accept manifested

hazardous waste). It is important to note

that such facilities are not relieved of

any regulatory requirements associated

with discharges to air and/or water that

may apply under the Clean Air Act or

the Clean Water Act.

14. Recovery Operations

Recovery Operations means activities

leading to resource recovery, recycling,

reclamation, direct re-use or alternative

uses as listed in Table 2B of the Annex

of OECD Council Decision

C(88)90(Final) of 27 May 1988.

The Agency considers ‘‘recovery

operations’’ to be consistent with the 40

CFR 261.1 and 261.2 definitions for

recycling and reclamation. Note,

however, that under 40 CFR 261.2,

certain wastes that are directly re-used

and off-specification products that are

reclaimed are not solid wastes; thus,

they are not subject to either current

RCRA regulations or the OECD

requirements implemented today.

15. Transfrontier Movement

Transfrontier Movement means any

shipment of wastes destined for

recovery operations from an area under

the national jurisdiction of one OECD

country to an area under the national

jurisdiction of another OECD country.

The Agency is interpreting the phrase

‘‘area of national jurisdiction’’ in the

United States to mean the 50 States, the

District of Columbia, the

Commonwealth of Puerto Rico, the U.S.

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Mariana Islands.

Note: The United States made a declaration

that under international law, notification or

authorization of coastal states is not required

for passage through territorial seas and

exclusive economic zones (EEZs).

16. Wastes

OECD defines wastes in the OECD

Decision on transfrontier movements of

hazardous waste C(88)90(Final) dated

May 27, 1988, as materials other than

radioactive materials intended for

disposal. ‘‘Disposal’’ is defined in Table

2 of the same document to include

typical disposal and recovery

operations. The list of recovery

operations are included in § 262.81(k) of

today’s rule. In this rule, EPA interprets

wastes to include materials defined as

solid and hazardous wastes in 40 CFR

261.2 and 261.3 and is therefore not

codifying the OECD waste definition.

Materials outside the scope of EPA’s

definition of solid waste are not subject

to today’s regulations. (As previously

noted, EPA may, in the future, identify

wastes under other statutes that are

subject to the OECD Decision).
16300 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

9Note that the competent authority of the

exporting country may, in accordance with

domestic laws, decide to transmit this notification

to importing and transit countries.

10Note that current U.S. regulations require 60

days prior notice. See 40 CFR 262.50–262.60.

11 EPA requires UN numbers and RCRA waste

codes in addition to the OECD waste list codes to

be included per § 262.83(e)(11) of today’s rule.

C. Notification and Consent for Exports

Notification of potential exports of

hazardous waste destined for recovery

operations is a key component of the

OECD requirements to ensure that

wastes are not moved if there is any

objection from any of the concerned

countries. The notification and consent

requirement allows for the concerned

countries (i.e., exporting, importing and

transit) to determine whether the

hazardous waste can be handled safely

based on the requirements of their waste

management system and of the systems

and qualifications of the particular

facility that is designated to receive the

waste.

As discussed previously in today’s

preamble, only those hazardous wastes

subject to the Federal requirements for

manifesting under 40 CFR Part 262 are

subject to the RCRA export/import

requirements set forth in today’s rule.

Notifiers subject to these rules must

follow the relevant amber-list or red-list

control procedures, as discussed below

and codified in §§ 262.82 through

262.86 of today’s regulations.

1. Provisions Applicable to Amber-List

and Red-List Wastes

Under the amber-list control system,

there are two options for notification

and consent for shipments of amber-list

wastes. The first option requires written

notification with tacit or written

consent. The second option, a facility

pre-approval system, requires written

notification and is discussed in § III. C.

1. c. of today’s preamble. Certain

contractual obligations also apply to

notifiers, recovery facilities and all other

parties to the waste movement. In

addition, under the red-list control

system, facility pre-approval is not

allowed for shipments of any red-list

wastes. Finally, although the

notification requirements for red-list

wastes are the same as those applicable

to amber-list wastes, tacit consent is not

permissible for red-list wastes.

a. Notice and Consent for Specific

Shipments. According to the Decision,

the notifier must provide written

notification of intent to export to the

competent authorities of the concerned

countries (i.e., exporting, importing and

transit) prior to shipment.9 The Agency

today is requiring such notices to be

submitted to EPA 45 days prior to the

commencement date of the proposed

shipment of waste for recovery within

the OECD.10 EPA considers this period

of 45 days as appropriate in order to

allow time for EPA to review and

process the notification documents, the

Acknowledgement of Receipt to be sent

by the importing country (as required by

the Decision), and the 30-day tacit or

written consent period (required by the

Decision). In addition, EPA considers

this period of 45 days rather than 60

days prior notice set forth in current

U.S. regulations, as appropriate for

today’s rule, because within the OECD

context notifications and consents are

often faxed and disseminated in a much

more expedient manner than in other

contexts. EPA, in lieu of the U.S.

notifier, will forward the export notices

to the importing and transit countries.

The export notification must contain

the information specified in Appendix 2

of the Decision. Much of this

information is already required for U.S.

exports.

The OECD notification information

includes:

(1) Serial number or other accepted

identifier on the notification form;

(2) Notifier name, address, and

telephone and telefax numbers;

(3) Importing recovery facility name,

address, telephone and telefax numbers,

and technologies employed;

(4) Consignee name, address, and

telephone and telefax numbers if the

person is different than the owner or

operator of the recovery facility;

(5) Intended transporters and/or their

agents;

(6) Country of export and relevant

competent authority (the U.S.

Environmental Protection Agency);

(7) Countries of transit and relevant

competent authorities;

(8) Country of import and relevant

competent authority;

(9) Statement of whether the shipment

is a single-shipment notification or a

general notification. If general, period of

validity requested;

(10) Date foreseen for commencement

of transfrontier movement;

(11) If required by any concerned

country, certification that any

applicable insurance or other financial

guarantee is or shall be in force covering

the transfrontier movement

(Note: The U.S. does not currently require

such financial assurance);

(12) Designation of waste type(s) from

the appropriate list (amber or red), and

the wastes’ description(s), probable total

quantity of each, and an accepted

uniform classification code (such as

RCRA waste codes and UN numbers and

OECD waste list codes) 11 for each;

(13) Certification that a written

contract or chain of contracts or

equivalent arrangement between or

among all parties to the transfrontier

movement, as required by § 262.85, are

in place and are legally enforceable in

all concerned countries; and

(14) Certification that the information

is complete and correct to the best of

his/her knowledge.

In accordance with the existing Part

262 export regulations, EPA will

continue to require the notifier to

identify facility EPA ID numbers, if

applicable, and information on the

points of entry to and departure from all

foreign countries.

In July 1994, the OECD/WMPG

finalized two forms: one to be used for

export notification and the other to

accompany the shipment for tracking

purposes. The OECD/WMPG

recommends, but does not require,

using the forms. EPA also recommends

using the forms, but cannot require their

use until they are approved by OMB,

and until EPA promulgates such

requirement. Before these events occur,

EPA believes that OECD countries,

exporters and importers need to gain

experience with using the forms to

determine if any modifications are

needed; thus, EPA recommends the

forms be used immediately. Notification

forms are to be submitted to the Office

of Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., S.W.,

Washington, DC 20460, with ‘‘Attention:

OECD Export Notification’’ prominently

displayed on the envelope. If the

notification is complete, EPA will

forward a copy to the competent

authorities of the importing country and

any transit country. The importing

country must acknowledge receipt of

the notification within three working

days. The Acknowledgement of Receipt

will be sent by the competent authority

of the importing country simultaneously

to EPA, to the notifier, and to the

competent authority of any transit

country. EPA will accept a telephone

facsimile of such acknowledgements.

During the 30-day period after the

Acknowledgement of Receipt is sent to

EPA and the notifier, the competent

authority of the importing country as

well as any transit country may object

to the proposed movement of wastes.

Objections by any of the concerned
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16301

countries must be provided in writing to

EPA, to the notifier, and to the

competent authorities of other

concerned countries within the 30-day

period. The OECD-recommended

notification form was designed to be

used for Acknowledgement of Receipt,

consent, and objection purposes.

In the case of amber-list wastes, if no

objections to the waste movement are

submitted within the 30-day period,

tacit (or implied) consent is granted and

the movement of wastes may begin.

Tacit consent expires one calendar year

after the close of the 30-day period. If a

shipment for which tacit consent has

been given does not take place within

that time, a new notification must be

submitted and a new consent obtained.

Competent authorities of concerned

countries may also choose to provide

written consent to the notifier and

concerned countries in less than 30

days. In this event, the waste shipment

may begin immediately after the last

consent is received from all of the

competent authorities. In the case of

red-list wastes, the export of such waste

may not occur until the importing and

all transit countries provide written

consent. Written consent expires within

one calendar year, unless otherwise

specified.

b. General Notification. In cases

where similar wastes (e.g., those having

similar physical and chemical

characteristics, the same UN

classification, and same RCRA waste

codes) are to be sent periodically to the

same recovery facility by the same

notifier, the competent authorities of

concerned countries may elect to accept

one notification for these wastes for a

period of up to one year. The notifier

must indicate on the form that the

notification is general. Such acceptance

may be renewed for additional periods

of up to one year each. A concerned

country may revoke its acceptance at

any time by official notice to the notifier

and to the competent authorities of all

other concerned countries.

c. Pre-approval for Recovery Facilities

Managing Amber-List Wastes. The

competent authority of an importing

country with jurisdiction over specific

recovery facilities may decide that it

will routinely consent to the shipments

of certain amber-list waste types to

specific recovery facilities. An

importing country wishing to employ

this process must inform the OECD

Secretariat of the recovery facility name

and address, technologies employed,

waste types to which the pre-approval

applies, the time period covered, and

any subsequent revocations.

No specific consent is required from

the importing country when waste is to

be sent to a facility pre-approved to

accept that waste. However, the notifier

planning to ship waste to a preapproved recovery facility must notify

the Agency pursuant to § 262.83(e) prior

to shipment. Therefore, the notifier

must submit a notification to the

Agency at least 10 days in advance of

the shipment to allow time for EPA to

verify that the proposed recovery

facility has received pre-approval, that

the pre-approval is still valid, and that

the export notice meets any conditions

set by the importing country. For

example, the importing country may

need to stop the shipment in the event

that the pre-approved facility needs to

shut down operations temporarily for

maintenance or repair. Moreover, the

competent authorities of all concerned

countries may restrict or prohibit such

waste shipments in accordance with

applicable domestic laws. In addition,

pre-approval designations may be

limited to a specific time period and

may be revoked at any time. Shipments

may commence after the notification has

been received by competent authorities

of all concerned countries, unless the

notifier has received information

indicating that the competent authority

of one or more concerned countries

objects to the shipment. The general

notification procedures discussed above

may be used for multiple shipments of

the same waste type to pre-approved

facilities. In addition, the regulations

pertaining to tracking documents and

contracts apply. As discussed in § III. F.

3. of today’s preamble, EPA has not yet

decided whether or how to pre-approve

U.S. recovery facilities for the purpose

of granting prior consent. The issue will

be addressed in a future rulemaking.

Facilities that intend to receive

shipments of red-list wastes are not

eligible for pre-approval. Rather, each

shipment of red-list waste must proceed

pursuant to a specific or general

notification for which written consent

was received.

d. Return or Re-Export of Shipments.

If the shipment of amber-list or red-list

waste cannot be managed in the

importing country as planned and if

alternate management is unavailable or

unacceptable in the importing country,

the party designated in the contract as

assuming responsibility for adequate

management of the waste in such cases

may decide to return the waste to the

notifier or to export the waste to a third

OECD country where a suitable facility

can manage it. Any such re-export must

comply with the requirements of

§ 262.82(c) of today’s regulations.

Competent authorities of all concerned

countries (importing, transit, exporting),

in addition to the competent authority

of the initial exporting country, must be

notified. Each competent authority has

up to 30 days to object to the re-export.

The 30-day period begins when the

competent authority of both the initial

exporting country and the new

importing country issue

Acknowledgements of Receipt of the

notification. The re-export may

commence once the competent

authorities of all concerned countries

have consented (i.e., tacit or written for

amber-list wastes, written for red-list

wastes). Re-export to a third country

outside the OECD is fully subject to the

notification and consent requirements

outlined above with respect to the

initial exporting country and any OECD

transit country, as well as to the

domestic laws of the original importing

country and to any applicable

international agreements or

arrangements to which the (original)

importing OECD country is a Party,

including (if appropriate) EPA’s current

regulations.

The provisions for return or re-export

of red-list wastes are the same as for

amber-list wastes except that written

consent must be obtained from all

concerned countries (i.e. tacit consent is

not permissible for red-list wastes).

U.S. persons are not required to

comply with the re-export provisions of

today’s regulations with respect to

amber- or red-list wastes that are not

considered hazardous under U.S. law. If

the waste is considered hazardous in the

other concerned OECD countries,

however, U.S. exporters of such wastes

may find it expedient (or necessary) to

comply with return or re-export

requirements of those countries in order

to continue trade with them. These

requirements may be addressed under

the terms of their contracts with their

trading partners.

2. Unlisted Wastes

If waste not appearing on the green,

amber, or red lists is a RCRA hazardous

waste as defined in 40 CFR 261.3 and

is subject to the Federal manifesting

requirements under Part 262, the waste

is subject to the notification and consent

requirements established for red-list

wastes (i.e., prior written consent is

required). However, if a waste does not

appear on any of the OECD lists and is

not a RCRA hazardous waste subject to

manifesting requirements, the waste

may be handled as a green waste; thus

no prior notification to EPA is required.

Notifiers should note, however, that the

importing and transit countries may

require notification and consent

controls for such wastes if they are

considered hazardous in their respective

countries and if such controls are
16302 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

12For example, the Hague Evidence Convention,

to which the U.S. and several OECD countries

belong, establishes procedures for assistance in

evidence-gathering which may be used to support

cooperation in civil enforcement.

required by the domestic law of those

countries. In such cases, the foreign

importer may ask U.S. notifiers to

assume contractual obligations requiring

compliance with such provisions.

D. Tracking Documents

The Decision requires that a tracking

document must accompany each

transfrontier shipment of amber-list or

red-list waste until it reaches its final

destination (the designated recovery

facility). The purpose of the tracking

document is to provide pertinent

information concerning the shipment to

any interested entity while the waste is

en route.

All hazardous wastes subject to

today’s rule (whether amber, red, or

unlisted, and whether constituting a

U.S. import or export) must be

accompanied by a tracking document

that contains all the information in

§ 262.84 of today’s regulations. This

includes all the information required

under § 262.83(e), plus the following

information:

(a) Date shipment commenced;

(b) If not same as the notifier, name,

address, and telephone and telefax

numbers of primary exporter (i.e.,

shipper);

(c) Company name and EPA ID

number of all transporters;

(d) Means and mode of transport,

including types of packaging;

(e) Any special precautions to be

taken by transporters;

(f) Certification by notifier that no

objection has been lodged by the

competent authorities of all concerned

countries. The notifier must sign the

certification; and

(g) Appropriate signatures for each

custody transfer (transporter, consignee,

and owner or operator of the recovery

facility).

As discussed earlier, the OECD has

developed a form for tracking purposes,

in conjunction with the OECD

notification form, which is

recommended for use by the OECD. The

OECD developed the notification and

tracking forms for use by OECD

countries implementing the Decision,

the European Union to implement its

waste regulations, and non-OECD

countries for implementing the Basel

Convention. After gaining experience in

using the notification and tracking

forms, the OECD may need to modify

them. The Agency anticipates requiring

their use in a future rulemaking.

Until the OECD tracking form is

codified into the RCRA regulations,

exporters and importers may either use

the OECD tracking form itself, or may

supply all the information required in

§ 262.84 on a separate sheet of paper. In

the latter case, all information should be

typed or printed and should be

numbered to correspond to § 262.84

requirements. As a practical matter,

most U.S. exporters and importers will

be using the OECD-recommended forms

if the OECD countries with which they

are trading require their use.

1. Routing of Tracking Document

As with the Uniform Hazardous

Waste Manifest, EPA will not require

the tracking document (or information

on separate paper) to accompany the

waste when moving by rail or bulk

shipment by water. The regulated

community should continue to follow

the manifest procedures for routing the

forms in 40 CFR 262.11 Subpart B.

Within 3 working days of its receipt

of the hazardous wastes subject to

amber-list or red-list controls, the owner

or operator of the recovery facility must

send signed copies of the tracking

document to the export notifier, to

EPA’s Office of Enforcement and

Compliance Assurance, and to the

competent authorities of the importing

and transit countries. The original

tracking document must be retained by

the recovery facility for at least 3 years.

These requirements are codified in

§§ 264.12, 265.12, 264.71 and 265.71 of

today’s rule.

Where U.S. recovery facilities are

receiving wastes from other OECD

countries that are considered hazardous

in that country but not in the U.S.,

today’s regulations do not apply for the

U.S. recovery facility. However,

contractual provisions imposed on the

foreign exporter for the shipment to the

U.S. recovery facility may result in

certain obligations for the facility, such

as returning a signed tracking document

to the notifier and to competent

authorities of concerned countries.

While the U.S. government does not

have the authority to enforce the

requirements of other countries for

wastes that are not hazardous in the

U.S., the U.S. may provide cooperative

assistance to other OECD countries in

their efforts to enforce their own laws,

including sharing information and

investigative support, pursuant to

domestic and international law.12 The

owner or operator of the U.S. recovery

facility should be aware that the

exporting country is unlikely to consent

to the shipment (or future similar

shipments) absent performance of these

duties.

E. Contracts

Under today’s rule, transfrontier

movement of hazardous wastes subject

to amber-list or red-list controls may

occur only under the terms of a valid

written contract, chain of contracts, or

under equivalent arrangements between

facilities controlled by the same legal

entity. Therefore, the export notifier and

the owner or operator of the authorized

recovery facility must enter into such

contracts or arrangements. In addition,

all persons involved in such contracts or

arrangements must have appropriate

legal status to assume the required

contractual obligations.

For the purposes of this rule, a valid

contract is one that complies with the

requirements of § 262.85 of today’s rule.

Among other things, the contracts or

equivalent arrangements must identify

the generator of each type of waste being

shipped, all persons who will have

physical custody or legal control of the

waste, and the designated recovery

facility. In addition, the contracts or

equivalent arrangements must identify

the party who will assume

responsibility for the waste if alternate

management of the waste is necessary.

In addition, such contracts or

arrangements must identify the person

responsible for obtaining consent for

export of the waste to a third country,

if the need should arise. Contracts or

equivalent arrangements must also

contain provisions requiring each

contracting party to comply with all

applicable requirements of today’s

regulation. Thus, contracts provide a

mechanism to ensure that all parties

involved in the transfrontier movement

of waste destined for recovery

operations are cognizant of and assume

appropriate responsibilities for the

controls placed on the waste shipment.

If required by the concerned

countries, the contract, chain of

contracts, or equivalent arrangement

must also include provisions for

financial guarantees to provide for

alternate recycling, disposal, or other

means of sound management should the

need arise. Currently, the U.S. does not

impose such a financial requirement.

Competent authorities of exporting and

importing countries may, under

domestic law, also require the notifier to

provide copies of contracts or portions

thereof. Under today’s rulemaking, EPA

is not requiring routine submission of

contracts to EPA. The Agency could,

however, request such information on a

case-by-case basis, if necessary to

process export/import notices or for

enforcement purposes. Upon request,

such information shall be held as

confidential to the extent allowed under
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16303

13This list is intended to be illustrative only; U.S.

parties may find foreign business associates

requesting additional elements in their contracts in

accordance with the domestic laws and regulations

of other OECD countries.

domestic law. Information for which a

claim of confidentiality has been

asserted will be managed in accordance

with the provisions in 40 CFR Part 2

and 40 CFR 260.2 (as amended today),

which allows information submitted by

export notifiers in their notification of

intent to export to be released to the

U.S. Department of State and

appropriate authorities of receiving

countries regardless of claims of

confidentiality.

As discussed earlier, there may be

cases where U.S. parties are engaged in

transfrontier movements of waste that

are not considered hazardous under

U.S. national procedures but that are

considered hazardous by another OECD

country. In order for such waste

movements to proceed, U.S. parties

would need to comply with the

provisions of the Decision as

implemented by the other OECD

country. It is likely that the OECD

country will rely on the contract in

these situations to define the

responsibilities of all parties engaged in

the transfrontier movement. Thus, U.S.

waste exporters, importers, and

recognized traders should anticipate

requests from their foreign counterparts

to address these responsibilities in a

contract. OECD countries are also free

under the Decision to require contract

elements beyond those specified in the

Decision and today’s rule. Such

elements may include: 13

—Delineation of when and where

responsibilities shift for alternative waste

management if disposition cannot be

carried out as described in the Notification

of Intent to Export;

—Certification of compliance with tracking

document requirements, particularly the

obligation of the U.S. receiving facility

under § 262.84(e) to return signed tracking

documents to the foreign notifier and

competent authorities of the concerned

countries;

—Description of the specific financial

guarantee mechanism if one is required by

any concerned country;

—Certification that all U.S. waste handlers in

the contract are authorized under U.S. law

to carry out their transporter or waste

recovery functions;

—Provision requiring each contracting party

to comply with all applicable laws of the

concerned countries;

—Identification of parties responsible for

language translations of export

notifications or tracking document; and

—Procedures for modifying the contract,

particularly to reflect future modifications

to the Decision.

F. Importers

1. Definition

There is no definition of ‘‘importer’’

in the Decision, the RCRA regulations,

or the RCRA statute. However, persons

importing hazardous waste have various

responsibilities and duties under EPA’s

current regulations and today’s rule,

including the contract provisions of

§ 262.85. Transfrontier movements of

amber-list or red-list wastes must occur

under the terms of a valid written

contract, or chain of contracts, or

equivalent arrangements (when the

movement occurs between parties

controlled by the same corporate or

legal entity). That contract or equivalent

arrangement must specify

responsibilities of each entity handling

the waste starting with the notifier and

ending with the owner or operator of the

recovery facility. In addition, hazardous

waste importers must comply with all

applicable requirements for generators

and transporters pertaining to

manifesting in 40 CFR Parts 262 and 263

as well as the facility import notification

requirements in 40 CFR 264.12 and

265.12 if the facility is subject to Parts

264 or 265. Also, hazardous waste

importers in the U.S. must comply with

U.S. Customs’ rules, provisions under

the Toxic Substances Control Act

concerning the import of chemical

substances (see § IV. B. 6. and VII of

today’s preamble), and any other

applicable legal requirements.

Any U.S. entity that meets the

definition of ‘‘consignee’’ in today’s rule

(i.e., the first person to whom

possession or other form of legal control

of the waste is assigned once received

in the importing country), such as

transporters, recognized traders, storage

facility operators, or recovery facility

operators, may be acting as an importer

of hazardous wastes and therefore may

be subject not only to the requirements

of Subpart H but also to current

regulations applicable to importers, in

40 CFR Part 262, subpart F.

2. Requirements

a. Notification of Receipt. In order to

implement the Decision, today’s

regulations at § 262.84(d) require that

the owner or operator of the U.S.

recovery facility send a signed copy of

the tracking document to the notifier

and to the competent authorities of the

concerned countries, including EPA,

within three working days of receipt of

a waste subject to amber-list or red-list

controls. The tracking document must

contain the signatures of all parties that

had custody of the waste (see § III. D.

discussion on tracking documents).

It is important to note that once a

hazardous waste enters the U.S., that

waste and its management are subject

not only to the OECD procedures for

transfrontier movements implemented

in today’s final rule, but also to all other

applicable U.S. regulations. Hence,

RCRA hazardous wastes subject to

today’s rules must be managed in

accordance with any applicable

generator, transporter, and facility

requirements (e.g., packaging and

labelling, return of manifest to the

generator, manifest discrepancy, and

storage facility requirements) for

hazardous waste recyclables specified in

40 CFR 261.6 and part 266, in addition

to the Part 268 standards and

requirements under other statutes (e.g.,

TSCA). When EPA (as the competent

authority) receives a notification of

potential export from a foreign exporter,

the Agency will review the proposed

import notice to determine if the waste

is destined for a recovery facility that is:

(1) authorized to manage the specified

waste in accordance with the facility’s

RCRA permit or interim status

requirements; or (2) allowed to receive

the waste under U.S. laws and

regulations but is not required to have

a RCRA permit.

b. Pre-Approval of U.S. Recovery

Facilities. The Decision allows

importing countries to pre-approve

specific recovery facilities for receiving

shipments of certain amber-list wastes

(see § III. C. 1. c. of today’s preamble).

EPA has not yet determined whether or

how it will pre-approve U.S. recovery

facilities but has reserved § 262.88 of

today’s regulations for this purpose.

EPA currently exempts many waste

recycling (e.g., reclamation, recovery,

regeneration) units from RCRA

permitting standards for the actual

recycling of the materials. However,

storage of hazardous wastes prior to

recycling does trigger RCRA

requirements, which may include a

permit requirement. There are also

special circumstances where EPA either

totally or partially exempts certain

recycling facilities from RCRA

regulation (see § IV of today’s preamble).

In such cases, EPA waste management

officials may lack sufficient information

regarding a recycling facility’s design

and operation, and thus may be unable

to adequately assess the suitability of a

particular recovery operation to be preapproved to receive certain amber-listed

wastes. The Agency, therefore, will

defer consideration of the issue of preapproval for U.S. recovery facilities

until a later date (see § VIII of today’s

preamble).
16304 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

14 Waste minimization information is required in

even numbered years only. No waste minimization

information is required under this section if (1) less

than 1,000 kg of waste was exported in each month

of the calendar year pursuant to this subpart; or (2)

the information was already submitted as part of a

biennial report under 40 CFR 262.41.

G. Reporting and Recordkeeping

The only new recordkeeping

requirements imposed in today’s rule

pertain to recovery facilities, which are

now required to send signed copies of

the tracking document to the competent

authorities of the concerned countries

and to retain copies for three years. In

addition to these new requirements,

EPA recodifies in Subpart H for OECD

purposes the current recordkeeping and

reporting requirements at 40 CFR 262.51

that are applicable to primary exporters.

Recordkeeping and reporting

requirements for shipments of

recyclable wastes to and from OECD

countries are in § 262.87 and apply to

individuals, including notifiers and

recognized traders, that meet the

definition of primary exporter at 40 CFR

262.51.

Annual reports on exports of

hazardous waste to OECD countries for

recovery must continue to be filed with

the Administrator no later than March 1

of each year. As discussed in the August

8, 1986 Final Rule on exports (51 FR

28664), there may be more than one

party acting as primary exporter (i.e.,

persons that are required to originate

manifests under Part 262 and any

intermediaries arranging for the export).

For the purpose of today’s rule, EPA

expects one party (e.g., notifier or

recognized trader acting as notifier) to

submit the notification, keep the

required records, and submit the

required annual report, etc. Parties to

transfrontier shipments should decide

among themselves which U.S. party

should fulfill these duties. Enforcement

actions can, however, be taken against

all waste handlers (e.g., notifiers,

recognized traders, consignees, recovery

facilities) associated with the

transfrontier movement of wastes for

recovery within the OECD.

If an individual is already required

under 40 CFR 262.56 to file an annual

report for other hazardous waste

exports, he need only file one annual

report. EPA is requiring, however, that

information on OECD exports covered

under this Subpart be contained in a

separate section of the annual report

since the U.S. must provide this

information annually to the OECD.

Under § 262.87, annual reports must

accurately summarize the types,

quantities, frequency, and ultimate

destination of all hazardous waste

exported during the previous calendar

year. In addition, the report must

include the facility’s EPA identification

number, and name and address of the

filer; the calendar year covered; the

name and address of each final recovery

facility; by each final recovery facility,

a description of the waste exported,

name and address of each transporter

used, the total amount of hazardous

waste shipped during the year, and the

number of shipments during the year; a

description of the waste minimization

efforts and results during the year;14 and

a certification statement attesting to the

accuracy of the information in the report

and an acknowledgement of the

potential penalties for filing false

information. The annual report must

also contain the designations of the

waste type(s) from the OECD waste lists,

the applicable waste code from the

OECD lists incorporated by reference in

§ 262.89 of today’s rule, and the U.S.

Department of Transportation hazard

class. Annual reports must be sent to the

Office of Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460.

EPA also is recodifying in § 262.87 the

requirement in § 262.55 that persons

who meet the definition of primary

exporters (e.g., notifiers or recognized

traders acting as notifiers) must file

exception reports, under certain

circumstances. For the purpose of OECD

exports, the written confirmation of

delivery consists of the signed copy of

the tracking form sent by the owner or

operator of the recovery facility to the

notifier as required in the parties’

contract pursuant to § 262.85(f).

The Agency is requiring individuals

who meet the definition of primary

exporters at 40 CFR 262.51 to continue

to maintain specified records for at least

three years, consistent with current

practice and RCRA export

recordkeeping requirements. These

records include, where applicable, a

copy of each annual report from the

three previous years, a copy of each

written consent obtained from

competent authorities of concerned

countries (in lieu of EPA

Acknowledgement of Consent), and a

copy of each confirmation of delivery by

the recovery facility (i.e., tracking

document). If there is an unresolved

enforcement action pending or if

requested by the Administrator, the

record retention period may be

extended.

IV. OECD Waste Lists and Relationship

to RCRA

A. Relationship of OECD Wastes and

RCRA Hazardous Wastes

The full text of the Decision

containing the waste lists is included in

the official record for today’s rule, and

the green, amber, and red waste lists are

incorporated by reference in § 262.89 of

today’s regulations. EPA has developed

a table that provides a general guideline

of possible RCRA wastes and waste

codes that may correspond to the amber

and red listings, which is available in

the docket for today’s rule. Because the

OECD waste category descriptions for

the amber and red lists are broad and

may include both RCRA hazardous

waste and waste that is not hazardous

under RCRA, EPA is unable to

predetermine applicable RCRA waste

codes in the absence of information on

the physical and chemical

characteristics of the particular wastes

involved.

B. Status of Specific RCRA Hazardous

Wastes

1. Definitions of Wastes Subject to

National Procedures

The Decision establishes varying

controls depending on whether a waste

is considered hazardous by the country

of export or import, based on the

country’s ‘‘national procedures.’’ For

purposes of today’s rule, EPA considers

that a waste is hazardous under U.S.

national procedures if the waste meets

the following RCRA requirements: (1)

Meets the Federal definition of

hazardous waste in 40 CFR 261.3; and

(2) is subject to either the Federal

manifest procedures of 40 CFR part 262,

or to the universal waste management

standards of 40 CFR part 273, or to State

requirements analogous to Part 273. (As

previously noted, EPA may, in the

future, identify wastes under other

statutes that are subject to the OECD

Decision). Under the RCRA regulations,

however, certain wastes do not meet the

Federal hazardous waste definition

when they are recycled, or are not

subject to the Federal manifesting

requirements, or are not subject to

Federal or State universal waste

management standards. Such wastes are

exempt from today’s rules. [Please see

discussion on universal wastes in

section IV. B. 6. below.]

Such exempt wastes would, however,

remain subject to the controls normally

applied to international commercial

transactions, just as green-list wastes are

subject to these controls (e.g., bill of

lading, international insurance, etc.).

However, the exporter of U.S. exempt
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16305

15 Under Subtitle C of RCRA, EPA authority is

limited to the regulation of ‘‘hazardous waste.’’

However, to be regulated as a hazardous waste, a

material must first be a ‘‘solid waste.’’ Section

1004(27) of RCRA defines solid waste to include

any garbage, refuse, sludge and other discarded

material [see RCRA § 1004(8)]. A central element of

this definition is that wastes are ‘‘discarded.’’ EPA

retains considerable discretion to define whether

materials being recycled can be considered to be

‘‘discarded’’ [see American Mining Congress v. EPA,

907 F.2d 1179, 1185–87 (D.C. Cir. 1990); and

American Petroleum Institute v. EPA, 906 F.2d 729

at 740–42 (D.C. Cir. 1990)].

wastes may still be required by her/his

contract with the foreign consignee to

comply with notification, consent, and

contractual requirements imposed by

other concerned countries as a

condition of exporting the waste if one

or more of those concerned countries

considers the waste hazardous. OECD

countries are acting within the terms of

the Decision if they impose such

obligations for wastes they consider

hazardous, and will likely reject any

shipment which does not comply with

these requirements. Thus, if a person is

considering exporting recyclable waste

to an OECD country, that person should

determine the status of the waste in

question (under the national procedures

of the importing and transit countries)

well in advance of the proposed

shipment date so that no unnecessary

delays are encountered.

2. Exemptions From the Definition of

Solid Waste

Current RCRA regulations subject

recyclable materials to controls under

Subtitle C of RCRA if they meet the

definition of solid waste 15 and are

identified or listed as hazardous. The

determination of whether a recyclable

material is a solid waste, and potentially

a hazardous waste, depends on the

secondary material and the recycling

activity [see 50 FR 614 (Jan. 4, 1985) and

40 CFR 261.2 for further discussion and

requirements].

There is a relatively narrow set of

(large volume) hazardous secondary

materials that, when recycled, are not

defined as solid wastes (e.g., offspecification commercial chemicals that

are reclaimed). Therefore, these

materials are also not hazardous wastes

when recycled, and are therefore not

subject to RCRA export/import

requirements. Potential notifiers of

transfrontier movements of such

materials should keep in mind they bear

the burden of demonstrating that such

materials are exempt from the definition

of solid waste under 40 CFR 261.2 [see

40 CFR 261.2(f)]. Notifiers must

therefore maintain documentation that

can substantiate their claims, consistent

with the regulations at 40 CFR 261.2(f).

3. Applicability to Hazardous Waste

Subject to Special Recycling Standards

EPA’s regulatory definition of

‘‘hazardous waste’’ includes solid

wastes that are listed as hazardous

waste or that exhibit a characteristic of

ignitability, corrosivity, reactivity, or

toxicity. However, there is a very small

number of ‘‘hazardous wastes’’ that

EPA, for various reasons, has

conditionally exempted in part from

domestic regulation. Because certain of

these wastes are also not subject to

Federal hazardous waste manifest

controls, including but not limited to

Federal manifest controls, EPA does not

consider these wastes to be hazardous

under U.S. national procedures;

therefore, these wastes are not subject to

the requirements set forth today. Such

recyclable wastes are discussed briefly

below. In order to determine whether a

particular waste in fact qualifies for

special recycling consideration,

interested persons will need to consult

the appropriate RCRA regulations.

a. Scrap Metal. EPA has determined

that scrap metal is exempt from

regulation as a hazardous waste under

Subtitle C when recycled [see 40 CFR

261.6(a)(3)(iii); 50 FR 624 Jan. 4, 1985].

Because scrap metal is also exempt from

Federal manifest requirements, it is not

considered hazardous under U.S.

national procedures. Additionally, scrap

metal is on the OECD green list as a

non-hazardous waste.

b. Lead-Acid Batteries. Persons who

generate, transport, or collect whole

spent lead-acid batteries for reclamation

are not subject to the Federal manifest

requirements. Since spent lead-acid

batteries being reclaimed are exempt

from Federal manifest requirements,

they are not considered hazardous

under U.S. national procedures [see 40

CFR 266.80, 261.6(a)(2)(iv)]. Thus,

persons exporting whole spent lead-acid

batteries for reclamation are not subject

to today’s export/import requirements.

However, they may be required to notify

the importing country of their intention

to export lead-acid batteries, pursuant to

contracts they execute with foreign

consignees, because lead-acid batteries

are found on the amber list and are

considered to be hazardous under the

national procedures of many OECD

countries. Additional requirements may

also apply per contracts with foreign

consignees.

4. Wastes Excluded Under 40 CFR 261.4

Many wastes listed in 40 CFR 261.4

are excluded from some or all hazardous

waste controls. Because some of these

wastes are not defined as solid waste

[see 40 CFR 261.4(a)], they cannot be

defined as hazardous waste in

accordance with Subtitle C of RCRA.

Additionally, some of the wastes are

specifically excluded from the

definition of hazardous waste [see 40

CFR 261.4(b)], and therefore, are not

subject to the requirements of Subtitle

C. Because these wastes are not defined

as hazardous and are not subject to the

Federal manifesting procedures, among

other procedures, they are not covered

under the RCRA export/import

requirements set forth today. These

exempt wastes may, however, be subject

to controls imposed by other OECD

countries. EPA expects to bring

additional solid wastes that are

currently excluded from the definition

of hazardous waste under export and

import controls in the future.

Below are examples of wastes that are

currently identified at 40 CFR 261.4(a)

as excluded from the definition of solid

waste. Persons interested in determining

whether a particular waste is excluded

from the definition of solid waste will

need to consult 40 CFR 261.4(a)

directly.

—Domestic sewage and any mixture of

domestic sewage and other waste that

passes through a sewer system to a

publicly owned treatment works for

treatment;

—Industrial point source wastewater

discharges subject to § 402 of the

Clean Water Act;

—Irrigation return flows; and

—Source, special nuclear, or byproduct

material as defined by the Atomic

Energy Act of 1954, as amended.

—Materials subjected to in-situ mining

techniques that are not removed from

the ground as part of the extraction

process;

—Pulping liquors reclaimed in a

pulping liquor recovery furnace and

then reused in the pulping process,

unless they are accumulated

speculatively;

—Spent sulfuric acid used to produce

virgin sulfuric acid, unless it is

accumulated speculatively;

—Secondary materials that are

reclaimed and returned for reuse to

the original production process where

they were generated provided, inter

alia, that the process is a closed-loop

system, only tank storage is involved,

and there is no combustion used;

—Spent wood preserving solutions that

have been reclaimed and are reused

for their original intended purpose;

and

—Coke and coal tar from the iron and

steel industry that contain or are

produced from decanter tank tar

sludge (K087) when coke and coal tar

are used as a fuel.
16306 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

16Note that household waste and ash from

incineration of household waste appear on the

amber list and may, therefore, be subject to OECD

procedures outside of the United States. Household

waste will be subject to export controls once EPA

obtains new statutory authority for exports and

imports of waste. In addition, the U.S. Supreme

Court has ruled that ash from the incineration of

municipal solid waste that exhibits a characteristic

of hazardous waste must be managed as hazardous

waste. Such characteristically hazardous MSW ash

will be subject to Amber controls when exported.

17Some dioxin wastes are included in listed

RCRA hazardous waste from non-specific sources,

hazardous waste numbers F020, F021, F022, F023,

F026, and F027 [see 40 CFR 261.31(a)].

The solid wastes that are excluded

under 40 CFR 261.4(b) from the

definition of hazardous waste include

the following wastes listed below.

Persons interested in determining

whether a particular waste is excluded

from the definition of hazardous waste

will need to consult 40 CFR 261.4(b)

directly.

—Household waste; 16

—Agricultural crop wastes and manures

returned to soil as fertilizer;

—Mining overburden returned to the

mine site;

—Fly ash waste, bottom ash waste, and

flue gas emission control waste,

generated primarily from the

combustion of coal or other fossil

fuels except as provided in 40 CFR

266.12;

—Drilling fluids, produced waters, and

other wastes associated with the

exploration, development, or

production of crude oil, natural gas,

or geothermal energy;

—Certain waste streams that exhibit the

characteristic of hazardous waste only

for chromium and that were generated

by a process using nearly exclusively

trivalent chromium in a non-oxidizing

process such as certain leather

tanning wastes, and wastewater

treatment sludges from the production

of TiO2 pigment using chromiumbearing ores by the chloride process;

—Certain solid wastes from the

extraction, beneficiation, and

processing of ores and minerals

except as provided in 40 CFR 266.12;

—Cement kiln dust except as provided

in 40 CFR 266.12;

—Under certain circumstances, solid

waste that consists of discarded wood

products that fail the toxicity

characteristic test solely for arsenic

and are not hazardous for any other

reason;

—Petroleum-contaminated media

resulting from an underground storage

tank undergoing corrective action;

—Used chlorofluorocarbon refrigerants

from totally enclosed heat transfer

equipment destined for reclamation;

—Samples of solid waste, water, soil, or

air, which are collected for the sole

purpose of testing to determine their

characteristics or composition; and

—Certain samples collected for the

purposes of conducting treatability

testing and analysis.

5. Hazardous Waste Exempted Under 40

CFR 261.5

Under 40 CFR 261.5, hazardous

wastes generated by conditionally

exempt small quantity generators

(CESQGs) (i.e., generators of no more

than 100 kilograms per calendar month)

are exempt from Subtitle C

requirements, including manifesting,

provided such generators comply with

the requirements in 40 CFR 261.5. Thus,

hazardous waste generated by a CESQG

or collected from CESQGs is not subject

to today’s rule. These exempt wastes

may, however, be subject to controls

imposed by other OECD countries, if

those countries consider the wastes to

be hazardous.

6. Applicability to Universal Wastes

Today’s rule applies to universal

wastes as defined in 40 CFR 273 or by

State requirements analogous to Part

273. Universal wastes are defined as

hazardous wastes, but are subject to

streamlined management requirements

for collection, accumulation and

transportation. For instance, universal

wastes are not subject to Federal

manifesting requirements. Universal

wastes exported to non-OECD countries

are, however, subject to certain existing

export regulations found in 40 CFR part

262 Subpart E. Today’s rule amends the

export sections of 40 CFR part 273 to

clarify that universal wastes exported to

designated OECD countries for purposes

of recovery are not subject to 40 CFR

273.20, 273.40, 273.56, but are instead

subject to 40 CFR part 262, Subpart H

of today’s rule. Furthermore, today’s

rule amends the import section of 40

CFR part 273 to clarify that universal

wastes imported from designated OECD

countries for purposes of recovery are

subject to 40 CFR 273.70 in addition to

40 CFR part 262, Subpart H of today’s

rule.

7. Non-RCRA Wastes and Other

Regulatory Regimes

There are other wastes on the OECD

lists that may or may not be regulated

under RCRA in the U.S., but that are

controlled under other statutes. Such

wastes may include PCBs, asbestos, and

some chlorinated dioxins and

chlorinated furans.17 Because these

materials themselves are not hazardous

wastes as defined by RCRA, in most

cases, they are not subject to today’s

requirements (although other OECD

countries may subject them to controls).

If, however, PCBs, asbestos, chlorinated

dioxins, or chlorinated furans are

constituents in a waste or waste mixture

that is a RCRA listed or characteristic

hazardous waste that is subject to

Federal manifest requirements under

RCRA, these wastes are subject to all

applicable export and import

requirements under RCRA, including

today’s regulations. (As previously

noted, EPA may, in the future, identify

wastes under other statutes that are

subject to the OECD Decision).

The Toxic Substances Control Act

(TSCA) generally addresses the

regulation of materials containing PCBs

[see 15 U.S.C. § 6(e)(2)(A)]. EPA

proposed a rule on December 6, 1994

(59 FR 62788) which addressed imports

and exports of PCBs. EPA plans to

promulgate final rules in the near

future.

Potential exporters of these wastes

may consider contacting the government

of the specific OECD country for

clarification as to requirements

associated with a particular waste type

before planning the waste shipment

because other countries also may have

restrictions on the import or export of

such wastes.

C. OECD Waste Lists Incorporated by

Reference

The OECD Green List of Wastes

(revised May 1994), Amber List of

Wastes and Red List of Wastes (both

revised May 1993) as set forth in

Appendix 3, Appendix 4 and Appendix

5, respectively, to the OECD Council

Decision C(92)39/FINAL (Concerning

the Control of Transfrontier Movements

of Wastes Destined for Recovery

Operations) were approved by the

Director of the Federal Register to be

incorporated by reference in today’s rule

on July 11, 1996. These materials are

incorporated as they exist 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 Office of

the Federal Register, 800 North Capitol

Street, NW, suite 700, Washington, DC;

the U.S. Environmental Protection

Agency, 401 M Street, SW, Room

M2616, Washington, DC; the

Organization for Economic Cooperation

and Development, Environment

Directorate, 2 rue Andre Pascal, 75775

Paris Cedex 16, France; and, on the

Internet (see instructions for accessing

these materials in electronic format in

the SUPPLEMENTARY INFORMATION section

of the preamble to today’s rule).
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16307

18Under TSCA, an importer is considered the

‘‘manufacturer.’’ The term ‘‘manufacture’’ is defined

in § 3(7) of the act as: ‘‘* * * to import into the

Customs territory of the United States (as defined

in general headnote 2 of the Tariff Schedules of the

United States) * * *.’’

19Under Federal regulations (19 CFR 111), a

Customs broker is an individual, a partnership, or

an association or corporation who is licensed under

Part 111 to transact customs business on behalf of

others (19 CFR 111.1). Among other requirements,

an individual seeking a broker’s license must be a

U.S. citizen (19 CFR 111.11(a)). For a partnership,

association, or corporation to act as a Customs

broker, at least one member or officer must be a

licensed Customs broker, which requires U.S.

citizenship [19 CFR 111.11(b) and (c)].

V. Applicability in Authorized States

In the same way that existing RCRA

export requirements of 40 CFR 262

Subpart E are administered exclusively

by EPA and not by States, States may

not receive authorization from EPA to

control exports of hazardous waste

subject to Subpart H. This is because the

exercise of foreign relations and

international commerce powers is

reserved to the Federal government

under the Constitution. In the Agency’s

view, foreign policy interests and

exporter interests in expeditious

processing are better served by EPA’s

retention of these functions. In addition,

concentrating these responsibilities

within EPA will provide the U.S

Department of State with a single

contact point regarding the transfrontier

waste program and will better allow for

uniformity and expeditious

transmission of information between the

United States and foreign countries.

States do, however, play a key role in

providing EPA with information on

whether U.S. facilities designated to

receive hazardous waste imports are

authorized to manage specific wastes

and in ensuring facility compliance

with all applicable environmental laws

and regulations. Additionally, EPA may

authorize States to receive facility

import notifications required under 40

CFR 264.12(a) and 265.12(a).

For the purposes of the transfrontier

movement of wastes under current

RCRA requirements (and by extension,

under today’s rule), only those wastes

identified or listed under the Federal

program that are subject to Federal

manifesting requirements are subject to

the U.S. requirements for exporting and

importing. Thus, hazardous wastes

identified or listed by a State under

State law that are not included in the

Federal hazardous waste universe (i.e.,

where the State program is broader in

scope than the federal hazardous waste

program) will not be subject to today’s

export and import regulations.

VI. Relationship to U.S. Bilateral

Agreements

The U.S. has existing bilateral

agreements that address transboundary

movements of hazardous waste between

the U.S. and Mexico and between the

U.S. and Canada. Mexico became an

OECD member in June 1994. Today’s

rule implementing the provisions of the

Decision will not apply to imports or

exports of hazardous waste between the

U.S. and Mexico; the provisions of the

bilateral agreement with Mexico

continue to apply as well as EPA’s

current export and import regulations,

such as those in 40 CFR 262, Subparts

E and F, and 40 CFR 264.12(a) and

265.12(a).

Canada is a member of the OECD and

has adopted the Decision. Shipments of

hazardous waste to and from Canada,

both for the purposes of recycling and

final disposal, will continue to be

subject to the provisions of the U.S./

Canada bilateral agreement and to EPA’s

current import and export regulations.

After the Agency has more experience

with implementing today’s rule for

transfrontier shipments between the

U.S. and other OECD countries, EPA

may revisit this Decision. If so, EPA will

publish a notice in the Federal Register

and allow the regulated community

adequate time to comply with any new

requirements imposed.

VII. Relationship to Other Programs

Under Section 13 of the Toxic

Substances Control Act (TSCA),

importers of ‘‘chemical substances and

mixtures’’ must certify compliance with

TSCA at the point of entry into the

United States (see 40 CFR 707.20). Some

chemical substances or mixtures as

defined by TSCA also can be hazardous

wastes as defined by RCRA. Therefore,

if a hazardous waste as defined by

RCRA meets the definition of a chemical

substance or mixture under TSCA,

importers 18 must certify compliance

with TSCA in accordance with 40 CFR

707.20. This TSCA compliance

certification provision requires all

importers of chemical substances and

mixtures to certify that their shipments

are in compliance with all applicable

rules or orders under TSCA [see 40 CFR

707.20(b)(2)(i)]. Compliance with TSCA

may require, among other things, that

the substances are not banned from

importation, that they are listed in the

TSCA Inventory of chemical substances,

and that the substances are not being

imported for a ‘‘significant new use’’

without first providing notice to EPA at

least 90 days prior to the import. If the

shipment (including a hazardous waste)

contains no material covered by TSCA

(e.g., pesticides), then the importer must

certify that the substances in the

shipment are not subject to TSCA [see

40 CFR 707.20(b)(2)(ii)].

U.S. Customs’ regulations for

importing require that the importer of

record or a Customs broker be

responsible for filing entry

documentation.19 The importer of

record may be a foreign entity, provided

that, in the state or territory where the

port of entry is located, there is a

resident who is authorized to accept

service of process against such foreign

entity. Such resident must file a bond

having a resident corporation surety to

secure payment of any increased or

additional duties that may be found

due.

VIII. Future Rulemaking

This Decision is a negotiated

international agreement that provides

nations with some limited flexibility to

implement the Decision within their

unique domestic waste management

schemes. As such, certain definitions

and procedures in the Decision are less

explicit than current RCRA regulations.

It may be appropriate in the future to

revise today’s regulations to address

additional elements of the Decision.

Some of the elements of the Decision

that the Agency may address in future

regulations include:

—Notification and tracking documents.

The OECD/WMPG developed

recommended, standardized

notification and tracking documents

for shipments of amber-list and redlist wastes. Once the notification and

tracking documents have been in use,

they may need to be modified

according to experience by the

member countries. When use of the

forms becomes mandatory by the

OECD, the Agency will amend its

regulations to require their use.

—Pre-approval of recovery facilities.

The Decision allows importing

countries to pre-approve recovery

facilities. The Agency has not yet

decided whether to pre-approve

recovery facilities and, if so, whether

only RCRA permitted or interim

status recovery facilities should

qualify for pre-approval or whether

pre-approval criteria can feasibly be

established for recovery facilities

currently exempt from RCRA permit

or technical standards. The Agency

has already received a proposal for

such criteria from the International

Precious Metals Institute (IPMI).

IPMI’s proposal is included in the

public docket for today’s rule.

—Recognized traders. Consistent with

the Decision, today’s regulations set

forth certain responsibilities for
16308 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

recognized traders of hazardous

wastes destined for recovery within

the OECD. The Agency will be further

assessing the relationship of

recognized traders, as defined in

today’s regulations, to waste brokers

and whether additional regulations

are needed to clarify the scope of

coverage and associated

responsibilities.

As the Agency gains experience

implementing today’s regulations, it

may identify additional issues requiring

further regulatory action.

IX. Regulatory Impact Analysis

A. Executive Order 12866

Under Executive Order 12866 (58 FR

51735 October 4, 1993), the Agency

must determine whether a regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

EPA has determined that this rule is

not a ‘‘significant regulatory action’’

under the terms of Executive Order

12866 and is therefore not subject to

OMB review. This rule raises no novel

legal or policy issues. It simply

implements the Decision which the U.S.

has already supported. The rule

promulgates regulatory language that

differs from the language of the Decision

in only a minimal, nonsubstantive

manner, in order to conform this rule to

existing RCRA rules. The rule’s scope is

not broader than that of the Decision.

The only costs of this rule are those

associated with the additional

notification and tracking costs. Analysis

in the ICR (Information Collection

Request) shows that the annual burden

for U.S. exporters and importers will

total less than $225,000. This rule will

not cause any inconsistencies or

interfere with other Agencies’ actions,

nor materially alter the budgetary

impact of entitlements, grants, user fees,

or loan programs or the rights and

obligations of recipients thereof.

While EPA recognizes that some

companies may experience economic

dislocation if there are significant delays

in processing notifications and

consents, the Agency believes that

judicious planning on the part of these

companies could eliminate or lessen the

impact of such delays, if any. Moreover,

the Agency again emphasizes that the

Decision imposed these new

notification and consent requirements.

EPA is merely codifying those

requirements in this rule.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility

Act, 5 U.S.C. 601 et seq., a Regulatory

Flexibility Analysis must be performed

if the regulatory requirements have a

significant impact on a substantial

number of small entities. No Regulatory

Flexibility Analysis is required where

the head of an agency certifies that the

rule will not have a significant

economic impact on a substantial

number of small entities.

Since the enactment of RCRA Section

3017 and the 1986 regulations at 40 CFR

part 262, subpart E, generators subject to

the manifesting requirements for exports

of hazardous waste have been required

to comply with notification and consent

requirements as a condition of exporting

such wastes. Generators who generate

less than 100 kgs/mo (conditionally

exempt small quantity generators) were

not required to comply with these

requirements because they are not

subject to the manifesting requirements.

Conditionally exempt small quantity

generators are not subject to any of the

requirements of today’s rule; thus, the

universe of regulated individuals is not

changing.

EPA does not believe this rule will

increase burdens for any small entities

that are not already exempt as small

quantity generators. Today’s rule is not

expected to have a significant economic

impact on a substantial number of small

entities and does not require a

Regulatory Flexibility Analysis.

Therefore, pursuant to 5 U.S.C. 601(b),

I certify that this regulation will not

have a significant economic impact on

a substantial number of small entities.

C. Paperwork Reduction Act

1. Display of OMB Control Numbers

EPA is amending the table of

currently approved information

collection request (ICR) control numbers

issued by OMB for various regulations.

This amendment updates the table to

accurately display those information

requirements contained in this final

rule. This display of the OMB control

number and its subsequent codification

in the Code of Federal Regulations

satisfies the requirements of the

Paperwork Reduction Act (44 USC 3501

et seq.) and OMB’s implementing

regulations at 5 CFR 1320.

EPA finds that there is ‘‘good cause’’

under section 553(b)(B) of the

Administrative Procedure Act (5 U.S.C.

553(b)(B)) to amend this table without

prior notice and comment. Due to the

technical nature of the table, further

notice and comment would be

unnecessary. For the same reasons, EPA

also finds that there is good cause under

5 U.S.C. 553(d)(3).

2. Burden Statement

The information collection

requirements in this rule have been

approved by the Office of Management

and Budget (OMB) under the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.

and have been assigned control number

2050–0143.

This collection of information has an

estimated reporting burden averaging

from 5.74 hours per year per exporter to

2.99 hours per year per importer. This

includes time for reviewing regulations/

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

Send comments regarding the burden

estimate or any other aspect of this

collection of information, including

suggestions for reducing this burden, to

Chief, Information Policy Branch (2136);

U.S. Environmental Protection Agency;

401 M Street, S.W.; Washington, DC

20460; and to the Office of Information

and Regulatory Affairs, Office of

Management and Budget, Washington,

DC 20503, marked ‘‘Attention: Desk

Officer for EPA.’’

List of Subjects

40 CFR Part 9

Environmental protection,

Information collection, OMB approval,

Paperwork reduction.

40 CFR Part 260

Administrative practice and

procedure, Confidential business

information, Hazardous waste.

40 CFR Part 261

Hazardous waste, Recycling,

Reporting and recordkeeping.

40 CFR Part 262

Exports, Hazardous waste, Imports,

Incorporation by reference, International

agreements, Labeling, Manifest,
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16309

Packaging and containers, Recycling,

Reporting and recordkeeping

requirements.

40 CFR Part 263

Export, Hazardous waste, Hazardous

waste transportation, Import,

Manifesting, Tracking documents.

40 CFR Part 264

Hazardous waste, Imports, Manifest,

Recordkeeping, Recycling.

40 CFR Part 265

Hazardous waste, Imports, Manifest,

Recordkeeping requirements, Recycling.

40 CFR Part 266

Precious metals, Recycling.

40 CFR Part 273

Hazardous waste, Recycling,

Universal waste.

Dated: November 29, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter 1, subchapter

I of the Code of Federal Regulations, is

amended as set forth below.

PART 9—OMB APPROVALS UNDER

THE PAPERWORK REDUCTION ACT

1. In Part 9:

a. The authority citation for part 9

continues to read as follows:

Authority: 7 U.S.C. 135 et seq., 136–136y;

15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671;

21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33

U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321,

1326, 1330, 1344, 1345 (d) and (e), 1361; E.O.

11735, 38 FR 21243, 3 CFR, 1971–1975

Comp., p. 973; 42 U.S.C. 241, 242b, 243, 246,

300f, 300g–5, 300g–6, 300j–1, 300j–2, 300j–

3, 300j–4, 300j–9, 1857 et seq., 6901–6992k,

7401–7671q, 7542, 9601–9657, 11023, 11048.

b. Section 9.1 is amended by adding

a new entry and heading in numerical

order to the table to read as follows:

§ 9.1 OMB approvals under the Paperwork

Reduction Act.

* * * * *

40 CFR citation OMB control

No.

Public Information:

Part 2, subpart B ............... 2050–0143

* * * * *

PART 260—HAZARDOUS WASTE

MANAGEMENT SYSTEM: GENERAL

2. In part 260:

a. The authority citation continues to

read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921–

6927, 6930, 6934, 6935, 6937, 6938, 6939,

and 6974.

b. Section 260.2(b) is revised to read

as follows:

§ 260.2 Availability of information;

confidentiality of information.

* * * * *

(b) Any person who submits

information to EPA in accordance with

parts 260 through 266 and 268 of this

chapter may assert a claim of business

confidentiality covering part or all of

that information by following the

procedures set forth in § 2.203(b) of this

chapter. Information covered by such a

claim will be disclosed by EPA only to

the extent, and by means of the

procedures, set forth in part 2, subpart

B, of this chapter except that

information required by § 262.53(a) and

§ 262.83 that is submitted in a

notification of intent to export a

hazardous waste will be provided to the

U.S. Department of State and the

appropriate authorities in the transit

and receiving or importing countries

regardless of any claims of

confidentiality. However, if no such

claim accompanies the information

when it is received by EPA, it may be

made available to the public without

further notice to the person submitting

it.

PART 261—IDENTIFICATION AND

LISTING OF HAZARDOUS WASTE

3. In 40 CFR part 261:

a. The authority citation for part 261

continues to read as follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921,

6922, and 6938.

b. Section 261.6 is amended by

adding paragraph (a)(5) to read as

follows:

§ 261.6 Requirements for recyclable

materials.

(a) * * *

(5) Hazardous waste that is exported

to or imported from designated member

countries of the Organization for

Economic Cooperation and

Development (OECD) (as defined in

§ 262.58(a)(1)) for purpose of recovery is

subject to the requirements of 40 CFR

part 262, subpart H, if it is subject to

either the Federal manifesting

requirements of 40 CFR Part 262, to the

universal waste management standards

of 40 CFR Part 273, or to State

requirements analogous to 40 CFR Part

273.

* * * * *

PART 262—STANDARDS APPLICABLE

TO GENERATORS OF HAZARDOUS

WASTE

4. The authority citation for part 262

is revised to read as follows:

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

6923, 6925, 6937, and 6938.

5. Section 262.10 is amended by

redesignating paragraphs (d), (e), (f), and

(g) as (e), (f), (g), and (h) respectively

and adding a new paragraph (d) to read

as follows:

§ 262.10 Purpose, scope, and applicability.

* * * * *

(d) Any person who exports or

imports hazardous waste subject to the

Federal manifesting requirements of

part 262, or subject to the universal

waste management standards of 40 CFR

Part 273, or subject to State

requirements analogous to 40 CFR Part

273, to or from the countries listed in

§ 262.58(a)(1) for recovery must comply

with subpart H of this part.

* * * * *

6. Section 262.53(b) is revised to read

as follows:

§ 262.53 Notification of intent to export.

* * * * *

(b) Notifications submitted by mail

should be sent to the following mailing

address: Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting, and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460.

Hand-delivered notifications should be

sent to: Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting, and Data Division (2222A),

Environmental Protection Agency, Ariel

Rios Bldg., 12th St. and Pennsylvania

Ave., NW., Washington, DC. In both

cases, the following shall be

prominently displayed on the front of

the envelope: ‘‘Attention: Notification of

Intent to Export.’’

* * * * *

7. Section 262.56(b) is revised to read

as follows:

§ 262.56 Annual reports.

* * * * *

(b) Annual reports submitted by mail

should be sent to the following mailing

address: Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting, and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460.

Hand-delivered reports should be sent

to: Office of Enforcement and

Compliance Assurance, Office of
16310 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

Compliance, Enforcement Planning,

Targeting, and Data Division (2222A),

Environmental Protection Agency, Ariel

Rios Bldg., 12th St. and Pennsylvania

Ave., NW., Washington, DC.

8. Section 262.58 is amended by

adding text to read as follows:

§ 262.58 International agreements.

(a) Any person who exports or

imports hazardous waste subject to

Federal manifest requirements of Part

262, or subject to the universal waste

management standards of 40 CFR Part

273, or subject to State requirements

analogous to 40 CFR Part 273, 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 do not apply.

(1) For the purposes of this Subpart,

the designated OECD countries consist

of Australia, Austria, Belgium,

Denmark, Finland, France, Germany,

Greece, Iceland, Ireland, Italy, Japan,

Luxembourg, Netherlands, New

Zealand, Norway, Portugal, Spain,

Sweden, Switzerland, Turkey, United

Kingdom, and the United States.

(2) For the purposes of this Subpart,

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.

9. Part 262 is amended by adding

subpart H consisting of §§ 262.80

through 262.89 to read as follows:

Subpart H—Transfrontier Shipments 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 Tracking 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—Transfrontier Shipments 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 it meets the

Federal definition of hazardous waste in

40 CFR 261.3 and it is subject to either

the Federal manifesting requirements at

40 CFR Part 262, Subpart B, to the

universal waste management standards

of 40 CFR Part 273, or to State

requirements analogous to 40 CFR Part

273.

(b) Any person (notifier, consignee, 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,

becomes a generator and assumes all

subsequent generator duties under

RCRA and any notifier duties, if

applicable, under this subpart.

§ 262.81 Definitions.

The following definitions apply to

this subpart.

(a) Competent authorities means the

regulatory authorities of concerned

countries having jurisdiction over

transfrontier movements of wastes

destined for recovery operations.

(b) Concerned countries means the

exporting and importing OECD member

countries and any OECD member

countries of transit.

(c) Consignee 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

importing country.

(d) Country of transit means any

designated OECD country in

§ 262.58(a)(1) and (a)(2) other than the

exporting or importing country across

which a transfrontier movement of

wastes is planned or takes place.

(e) Exporting country means any

designated OECD member country in

§ 262.58(a)(1) from which a transfrontier

movement of wastes is planned or has

commenced.

(f) Importing country means any

designated OECD country in

§ 262.58(a)(1) to which a transfrontier

movement of wastes is planned or takes

place for the purpose of submitting the

wastes to recovery operations therein.

(g) Notifier means the person under

the jurisdiction of the exporting country

who has, or will have at the time the

planned transfrontier movement

commences, possession or other forms

of legal control of the wastes and who

proposes their transfrontier movement

for the ultimate purpose of submitting

them to recovery operations. When the

United States (U.S.) is the exporting

country, notifier is interpreted to mean

a person domiciled in the U.S.

(h) OECD area means all land or

marine areas under the national

jurisdiction of any designated OECD

member country in § 262.58. When the

regulations refer to shipments to or from

an OECD country, this means OECD

area.

(i) Recognized trader means a person

who, with appropriate authorization of

concerned countries, 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 transfrontier

movements of wastes destined for

recovery operations.

(j) Recovery facility means an entity

which, under applicable domestic law,

is operating or is authorized to operate

in the importing country to receive

wastes and to perform recovery

operations on them.

(k) Recovery operations means

activities leading to resource recovery,

recycling, reclamation, direct re-use or

alternative uses as listed in Table 2.B of

the Annex of OECD Council Decision

C(88)90(Final) of 27 May 1988,

(available from the Environmental

Protection Agency, RCRA Information

Center (RIC), 1235 Jefferson-Davis

Highway, first floor, Arlington, VA

22203 (Docket # F–94–IEHF-FFFFF) and

the Organisation for Economic Cooperation and Development,

Environment Direcorate, 2 rue Andre

Pascal, 75775 Paris Cedex 16, France)

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 control

R8 Recovery of components from

catalysts

R9 Used oil re-refining or other reuses

of previously used oil
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16311

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 in Table

2.B

(l) Transfrontier movement means any

shipment of wastes destined for

recovery operations 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

a green, amber, or red list and by U.S.

national procedures as defined in

§ 262.80(a). The green, amber, and red

lists are incorporated by reference in

§ 262.89 (e).

(1) Wastes on the green list are subject

to existing controls normally applied to

commercial transactions, except as

provided below:

(i) Green-list wastes that are

considered hazardous under U.S.

national procedures are subject to

amber-list controls.

(ii) Green-list waste that are

sufficiently contaminated or mixed with

amber-list wastes, such that the waste or

waste mixture is considered hazardous

under U.S. national procedures, are

subject to amber-list controls.

(iii) Green-list wastes that are

sufficiently contaminated or mixed with

other wastes subject to red-list controls

such that the waste or waste mixture is

considered hazardous under U.S.

national procedures must be handled in

accordance with the red-list controls.

(2) Wastes on the amber list that are

considered hazardous under U.S.

national procedures as defined in

§ 262.80(a) are subject to the amber-list

controls of this Subpart.

(i) If amber-list wastes are sufficiently

contaminated or mixed with other

wastes subject to red-list controls such

that the waste or waste mixture is

considered hazardous under U.S.

national procedures, the wastes must be

handled in accordance with the red-list

controls.

(ii) [Reserved].

(3) Wastes on the red list that are

considered hazardous under U.S.

national procedures as defined in

§ 262.80(a) are subject to the red-list

controls of this subpart.

Note to paragraph (a)(3): Some wastes on

the amber or red lists are not listed or

otherwise identified as hazardous under

RCRA (e.g., polychlorinated biphenyls) and

therefore are not subject to the amber- or redlist controls of this subpart. Regardless of the

status of the waste under RCRA, however,

other Federal environmental statutes (e.g.,

the Toxic Substances Control Act) may

restrict certain waste imports or exports.

Such restrictions continue to apply without

regard to this Subpart.

(4) Wastes not yet assigned to a list

are eligible for transfrontier movements,

as follows:

(i) If such wastes are considered

hazardous under U.S. national

procedures as defined in § 262.80(a),

these wastes are subject to the red-list

controls; or

(ii) If such wastes are not considered

hazardous under U.S. national

procedures as defined in § 262.80(a),

such wastes may move as though they

appeared on the green list.

(b) General conditions applicable to

transfrontier 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 transfrontier 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) Re-export of wastes subject to the

amber-list control system from the U.S.,

as the importing country, to a third

country listed in § 262.58(a)(1) may

occur only after a notifier in the U.S.

provides notification to and obtains

consent of the competent authorities in

the third country, the original exporting

country, and new transit countries. The

notification must comply with the

notice and consent procedures in

§ 262.83 for all concerned countries and

the original exporting country. The

competent authorities of the original

exporting country as well as the

competent authorities of all other

concerned countries have 30 days to

object to the proposed movement.

(i) The 30-day period begins once the

competent authorities of both the initial

exporting country and new importing

country issue Acknowledgements of

Receipt of the notification.

(ii) The transfrontier movement may

commence if no objection has been

lodged after the 30-day period has

passed or immediately after written

consent is received from all relevant

OECD importing and transit countries.

(2) Re-export of waste subject to the

red-list control system from the original

importing country to a third country

listed in § 262.58(a)(1) may occur only

following notification of the competent

authorities of the third country, the

original exporting country, and new

transit countries by a notifier in the

original importing country in

accordance with § 262.83. The

transfrontier movement may not

proceed until receipt by the original

importing country of written consent

from the competent authorities of the

third country, the original exporting

country, and new transit countries.

(3) In the case of re-export of amber

or red-list wastes to a country other than

those 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 paragraphs

(c)(1) and (c)(2) 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

importing country.

§ 262.83 Notification and consent.

(a) Applicability. Consent must be

obtained from the competent authorities

of the relevant OECD importing and

transit countries prior to exporting

hazardous waste destined for recovery

operations subject to this Subpart.

Hazardous wastes subject to amber-list

controls are subject to the requirements

of paragraph (b) of this section;

hazardous wastes subject to red-list

controls are subject to the requirements

of paragraph (c) of this section; and

wastes not identified on any list are

subject to the requirements of paragraph

(d) of this section.

(b) Amber-list wastes. The export from

the U.S. of hazardous wastes as

described in § 262.80(a) that appear on

the amber list is 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 45 days prior

to commencement of the transfrontier
16312 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

movement, the notifier must provide

written notification in English of the

proposed transfrontier movement to the

Office of Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW.,

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 (e)

of this section. In cases where wastes

having similar physical and chemical

characteristics, the same United Nations

classification, and the same RCRA waste

codes are to be sent periodically to the

same recovery facility by the same

notifier, the notifier may submit one

notification of intent to export these

wastes in multiple shipments during a

period of up to one year.

(ii) Tacit consent. If no objection has

been lodged by any concerned country

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

countries) to a notification provided

pursuant to paragraph (b)(1)(i) of this

section within 30 days after the date of

issuance of the Acknowledgment of

Receipt of notification by the competent

authority of the importing country, the

transfrontier movement may commence.

Tacit consent expires one calendar year

after the close of the 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 30

days, the transfrontier movement may

commence immediately after all

necessary consents are received. Written

consent expires for each relevant OECD

importing and transit country one

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) Shipments to facilities preapproved by the competent authorities

of the importing countries to accept

specific wastes for recovery:

(i) The notifier must provide EPA the

information identified in paragraph (e)

of this section in English, at least 10

days in advance of commencing

shipment to a pre-approved facility. The

notification should indicate that the

recovery facility is pre-approved, 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 Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460, with the words

‘‘OECD Export Notification—Preapproved Facility’’ prominently

displayed on the envelope.

(ii) Shipments may commence after

the notification required in paragraph

(b)(1)(i) of this section has been received

by the competent authorities of all

concerned countries, unless the notifier

has received information indicating that

the competent authorities of one or

more concerned countries objects to the

shipment.

(c) Red-list wastes. The export from

the U.S. of hazardous wastes as

described in § 262.80(a) that appear on

the red list is prohibited unless notice

is given pursuant to paragraph (b)(1)(i)

of this section and the notifier receives

written consent from the importing

country and any transit countries prior

to commencement of the transfrontier

movement.

(d) Unlisted wastes. Wastes not

assigned to the green, amber, or red list

that are considered hazardous under

U.S. national procedures as defined in

§ 262.80(a) are subject to the notification

and consent requirements established

for red-list wastes in accordance with

paragraph (c) of this section. Unlisted

wastes that are not considered

hazardous under U.S. national

procedures as defined in § 262.80(a) are

not subject to amber or red controls

when exported or imported.

(e) Notification information.

Notifications submitted under this

section must include:

(1) Serial number or other accepted

identifier of the notification form;

(2) Notifier name and EPA

identification number (if applicable),

address, and telephone and telefax

numbers;

(3) Importing recovery facility name,

address, telephone and telefax numbers,

and technologies employed;

(4) Consignee name (if not the owner

or operator of the recovery facility)

address, and telephone and telefax

numbers; whether the consignee will

engage in waste exchange or storage

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 transporters and/or their

agents;

(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 foreseen for commencement

of transfrontier movement;

(11) Designation of waste type(s) from

the appropriate list (amber or red and

waste list code), descriptions of each

waste type, estimated total quantity of

each, RCRA waste code, and United

Nations number for each waste type;

and

(12) Certification/Declaration signed

by the notifier 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 transfrontier movement.

Name: lllllllllllllllll

Signature: llllllllllllllll

Date: llllllllllllllllll

Note to paragraph (e)(12): The U.S. does

not currently require financial assurance;

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.

§ 262.84 Tracking document.

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

contract provisions of § 262.85 must

ensure that a tracking document

meeting the conditions of § 262.84(b)

accompanies each transfrontier

shipment of wastes subject to amber-list

or red-list controls from the initiation of

the shipment until it reaches the final

recovery facility, including cases in

which the waste is stored and/or

exchanged by the consignee prior to

shipment to the final recovery facility,

except as provided in §§ 262.84(a)(1)

and (2).

(1) For shipments of hazardous waste

within the U.S. solely by water (bulk

shipments only) the generator must

forward the tracking document with the

manifest to the last water (bulk

shipment) transporter to handle the

waste in the U.S. if exported by water,

(in accordance with the manifest routing

procedures at § 262.23(c)).

(2) For rail shipments of hazardous

waste within the U.S. which originate at

the site of generation, the generator

must forward the tracking 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

U.S. if exported by rail.
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16313

(b) The tracking document must

include all information required under

§ 262.83 (for notification), and the

following:

(1) Date shipment commenced.

(2) Name (if not notifier), address, and

telephone and telefax numbers 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.

(5) Any special precautions to be

taken by transporters.

(6) Certification/declaration signed by

notifier 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 transfrontier

movement, and that:

1. All necessary consents have been

received; OR

2. The shipment is directed at a recovery

facility within the OECD area and no

objection has been received from any of the

concerned countries within the 30 day tacit

consent period; OR

3. The shipment is directed at a recovery

facility pre-authorized 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 concerned

countries.

(delete sentences that are not applicable)

Name: lllllllllllllllll

Signature: llllllllllllllll

Date: llllllllllllllllll

(7) Appropriate signatures for each

custody transfer (e.g. transporter,

consignee, and owner or operator of the

recovery facility).

(c) Notifiers also must comply with

the special manifest requirements of 40

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

consignees must comply with the

import 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

tracking document (e.g. transporter,

consignee, and owner or operator of the

recovery facility).

(e) Within 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 tracking document to the

notifier, to the Office of Enforcement

and Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460, and

to the competent authorities of the

exporting and transit countries.

§ 262.85 Contracts.

(a) Transfrontier movements of

hazardous wastes subject to amber or

red 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 notifier 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

arrangement.

(b) Contracts or equivalent

arrangements must specify the name

and EPA ID number, where available, of:

(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 its 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

notifier and the competent authorities of

the exporting and importing countries

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 their return to the original

country of export.

(d) Contracts must specify that the

consignee will provide the notification

required in § 262.82(c) prior to re-export

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

concerned country, 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 U.S. does not require such

financial guarantees at this time; however,

some OECD countries do. It is the

responsibility of the notifier to ascertain and

comply with such requirements; in some

cases, transporters or consignees 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.

notifiers, consignees, 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 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 U.S.

does not require routine submission of

contracts at this time, OECD Council

Decision C(92)39/FINAL allows members to

impose such requirements. When other

OECD 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 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 a

notifier or consignee for transfrontier

shipments of waste must comply with

all the requirements of this Subpart

associated with being a notifier or

consignee.

§ 262.87 Reporting and recordkeeping.

(a) Annual reports. For all waste

movements subject to this Subpart,

persons (e.g., notifiers, recognized

traders) who meet the definition of
16314 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

primary exporter in § 262.51 shall file

an annual report with the Office of

Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW.,

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 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 the following:

(1) The EPA identification number,

name, and mailing and site address of

the notifier 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

part 261, subpart C or D), designation of

waste type(s) from OECD waste list and

applicable waste code from the OECD

lists, 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

1000kg 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 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 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 must file an

exception report in lieu of the

requirements of § 262.42 with the

Administrator if any of the following

occurs:

(1) He has not received a copy of the

tracking documentation signed by the

transporter stating 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 notifier 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 shall keep the following

records:

(i) A copy of each notification of

intent to export and all written consents

obtained from the competent authorities

of concerned countries for a period of at

least three 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 years from the

due date of the report; and

(iii) A copy of any exception reports

and a copy of each confirmation of

delivery (i.e., tracking documentation)

sent by the recovery facility to the

notifier for at least three years from the

date the hazardous waste was accepted

by the initial transporter or received by

the recovery facility, whichever is

applicable.

(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, to the universal

waste management standards of 40 CFR

part 273, or to State requirements

analogous to 40 CFR part 273.

(b) If a waste is hazardous under

paragraph (a) of this section and it

appears on the amber or red list, it is

subject to amber- or red-list

requirements respectively;

(c) If a waste is hazardous under

paragraph (a) of this section and it does

not appear on either amber or red lists,

it is subject to red-list requirements.

(d) The appropriate control

procedures for hazardous wastes and

hazardous waste mixtures are addressed

in § 262.82.

(e) The OECD Green List of Wastes

(revised May 1994), Amber List of

Wastes and Red List of Wastes (both

revised May 1993) as set forth in

Appendix 3, Appendix 4 and Appendix

5, respectively, to the OECD Council

Decision C(92)39/FINAL (Concerning

the Control of Transfrontier Movements

of Wastes Destined for Recovery

Operations) are incorporated by

reference. These incorporations by

reference were approved by the Director

of the Federal Register in accordance

with 5 U.S.C. 552(a) and 1 CFR part 51

on July 11, 1996. These materials are

incorporated as they exist 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 Office of

the Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC;

the U.S. Environmental Protection

Agency, RCRA Information Center (RIC),

1235 Jefferson-Davis Highway, first

floor, Arlington, VA 22203 (Docket # F–

94–IEHF–FFFFF) and may be obtained

from the Organisation for Economic Cooperation and Development,

Environment Direcorate, 2 rue Andre

Pascal, 75775 Paris Cedex 16, France.

PART 263—STANDARDS APPLICABLE

TO TRANSPORTERS OF HAZARDOUS

WASTE

10. The authority citation for part 263

is revised to read as follows:

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

6923, 6925, 6937, and 6938.

11. Section 263.10 is amended by

adding 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
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations 16315

to State requirements analogous to 40

CFR part 273, that is being imported

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 tracking documents.

12. Section 263.20(a) is revised to

read as follows:

§ 263.20 The manifest system.

(a) A transporter may not accept

hazardous waste from a generator unless

it is accompanied by a manifest signed

in accordance with the provisions of 40

CFR 262.20. In the case of exports other

than those subject to subpart H of 40

CFR part 262, a transporter may not

accept such waste from a primary

exporter or other person if he knows the

shipment does not conform to the EPA

Acknowledgement of Consent; and

unless, in addition to a manifest signed

in accordance with the provisions of 40

CFR 262.20, such waste is also

accompanied by an EPA

Acknowledgement of Consent which,

except for shipment by rail, is attached

to the manifest (or shipping paper for

exports by water (bulk shipment)). For

exports of hazardous waste subject to

the requirements of subpart H of 40 CFR

part 262, a transporter may not accept

hazardous waste without a tracking

document that includes all information

required by 40 CFR 262.84.

* * * * *

PART 264—STANDARDS FOR

OWNERS AND OPERATORS OF

HAZARDOUS WASTE TREATMENT,

STORAGE, AND DISPOSAL

FACILITIES

13a. The authority citation for part

264 continues to read as follows:

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

and 6925, 13b. Section 264.12 is amended by

redesignating paragraph (a) as paragraph

(a)(1) and by adding a 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 tracking document bearing

all required signatures to the notifier, to

the Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460; and

to the competent authorities of all other

concerned countries within three

working days of receipt of the shipment.

The original of the signed tracking

document must be maintained at the

facility for at least three years.

* * * * *

14. Section 264.71 is amended by

adding paragraph (d) after the comment

to read as follows:

§ 264.71 Use of manifest system.

* * * * *

(d) Within three working days of the

receipt of a shipment subject to 40 CFR

part 262, subpart H, the owner or

operator of the facility must provide a

copy of the tracking document bearing

all required signatures to the notifier, to

the Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460, and

to competent authorities of all other

concerned countries. The original copy

of the tracking document must be

maintained at the facility for at least

three years from the date of signature.

PART 265—INTERIM STATUS

STANDARDS FOR OWNERS AND

OPERATORS OF HAZARDOUS WASTE

TREATMENT, STORAGE, AND

DISPOSAL FACILITIES

15. The authority citation for part 265

is revised to read as follows:

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

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

6937.

16. Section 265.12 is amended by

redesignating paragraph (a) as paragraph

(a)(1) and by adding 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 tracking document bearing

all required signatures to the notifier, to

the Office of Enforcement and

Compliance Assurance, Office of

Compliance, Enforcement Planning,

Targeting and Data Division (2222A),

Environmental Protection Agency, 401

M St., SW., Washington, DC 20460 and

to the competent authorities of all other

concerned countries within three

working days of receipt of the shipment.

The original of the signed tracking

document must be maintained at the

facility for at least three years.

* * * * *

17. Section 265.71 is amended by

adding paragraph (d) after the comment

to read as follows:

§ 265.71 Use of the manifest system.

* * * * *

(d) Within three working days of the

receipt of a shipment subject to 40 CFR

part 262, subpart H, the owner or

operator of facility must provide a copy

of the tracking document bearing all

required signatures to the notifier, to the

Office of Enforcement and Compliance

Assurance, Office of Compliance,

Enforcement Planning, Targeting and

Data Division (2222A), Environmental

Protection Agency, 401 M St., SW.,

Washington, DC 20460, and to

competent authorities of all other

concerned countries. The original copy

of the tracking document must be

maintained at the facility for at least

three years from the date of signature.

PART 266—STANDARDS FOR THE

MANAGEMENT OF SPECIFIC

HAZARDOUS WASTES AND SPECIFIC

TYPES OF HAZARDOUS WASTE

MANAGEMENT FACILITIES

18. The authority citation for part 266

is revised to read as follows:

Authority: 42 U.S.C 1006, 2002(a), 3004,

3014, 6905, 6906, 6912, 6922, 6923, 6924,

6925, 6934, and 6937.

19. Section 266.70 is amended by

adding paragraph (b)(3) and by adding

the word ‘‘and’’ at the end of paragraph

(b)(2) to read as follows:

§ 266.70 Applicability and requirements.

* * * * *

(b) * * *

(3) For precious metals exported to or

imported from designated OECD

member countries for recovery, subpart

H of part 262 and § 265.12(a)(2) of this

chapter. For precious metals exported to

or imported from non-OECD countries

for recovery, subparts E and F of 40 CFR

part 262.

* * * * *

PART 273—STANDARDS FOR

UNIVERSAL WASTE MANAGEMENT

20a. The authority citation for part

273 continues to read as follows:

Authority: 42 U.S.C. 6922, 6923, 6924,

6925, 6930, and 6937. 20b. The introductory

text for § 273.20 is revised to read as follows:

§ 273.20 Exports.

A small quantity handler of universal

waste who sends universal waste to a

foreign destination other than to those

OECD countries specified in 40 CFR

262.58(a)(1) (in which case the handler

is subject to the requirements of 40 CFR

part 262, subpart H) must:

* * * * *

21. The introductory text for § 273.40

is revised to read as follows:
16316 Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations

§ 273.40 Exports.

A large quantity handler of universal

waste who sends universal waste to a

foreign destination other than to those

OECD countries specified in 40 CFR

262.58(a)(1) (in which case the handler

is subject to the requirements of 40 CFR

part 262, subpart H) must:

* * * * *

22. The introductory text for § 273.56

is revised to read as follows:

§ 273.56 Exports.

A universal waste transporter

transporting a shipment of universal

waste to a foreign destination other than

to those OECD countries specified in 40

CFR 262.58(a)(1) (in which case the

transporter is subject to the

requirements of 40 CFR part 262,

subpart H) may not accept a shipment

if the transporter knows the shipment

does not conform to the EPA

Acknowledgment of Consent. In

addition the transporter must ensure

that:

* * * * *

23. Section 273.70 is amended by

revising the introductory text and by

adding a new paragraph (d) to read as

follows:

§ 273.70 Imports.

Persons managing universal waste

that is imported from a foreign country

into the United States are subject to the

applicable requirements of this part,

immediately after the waste enters the

United States, as indicated in

paragraphs (a) through (c) of this

section:

* * * * *

(d) Persons managing universal waste

that is imported from an OECD country

as specified in 40 CFR 262.58(a)(1) are

subject to paragraphs (a) through (c) of

this section, in addition to the

requirements of 40 CFR part 262,

subpart H.

[FR Doc. 96–8087 Filed 4–11–96; 8:45 am]

BILLING CODE 6560–50–P