Revisions	to	the	Export	Provisions	of	the	

Cathode	Ray	Tube	(CRT)	Rule	Final	Rule:	

Response	to	Comments	Document

February	2014
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Overview

This Response to Comments Document contains the Environmental Protection Agency (EPA)’s 

responses to comments received on the 2012 Revision to the Export Provisions of the Cathode 

Ray Tube (CRT) Rule proposed rule (77 FR 15336, March 15, 2012). 

EPA received five comment letters on the proposed rule. For convenience, the comment letters 

are reproduced here in this comment response; however, the official comment letters can be 

found at www.regulations.gov Docket ID No. EPA-HQ-RCRA-2011-1014.
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Table	of	Contents

List of Acronyms ............................................................................................................................... 4

Basel Action Network (BAN)............................................................................................................. 5

Comment...................................................................................................................................... 5

EPA Response ............................................................................................................................. 16

Consumer Electronics Association (CEA) and Consumer Electronics Retailers Coalition (CERC)... 23

Comment.................................................................................................................................... 23

EPA Response ............................................................................................................................. 28

Institute of Scrap Recycling Industries (ISRI).................................................................................. 33

Comment.................................................................................................................................... 33

EPA Response ............................................................................................................................. 37

Tennessee Valley Authority (TVA).................................................................................................. 39

Comment.................................................................................................................................... 39

EPA Response ............................................................................................................................. 39

Waste Management (WM)............................................................................................................. 41

Comment.................................................................................................................................... 41

EPA Response ............................................................................................................................. 43
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List	of	Acronyms

BAN Basel Action Network

CEA Consumer Electronics Association

CERC Consumer Electronics Retailers Coalition

EPA U.S. Environmental Protection Agency

EU European Union

FR Federal Register

GAO U.S. Government Accountability Office

HSWA Hazardous and Solid Waste Amendments of 1984

ISRI Institute of Scrap Recycling Industries

OECD Organization for Economic Cooperation and Development

RCRA Resource Conservation and Recovery Act

TVA Tennessee Valley Authority

WM Waste Management
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Basel	Action	Network (BAN)

Comment

May 15, 2012

Response of Basel Action Network

The Basel Action Network (BAN) is a charitable non-profit organization working at the nexus of 

hazardous chemicals, trade, the environment and human rights. We are among the foremost 

experts on these overlapping subjects and on the Basel Convention on the Control of the 

Transboundary Movement of Hazardous Wastes and Their Disposal and are often called upon in 

numerous occasions and venuesto provide the latest policy developments as well as actual onthe-ground information about illegal and harmful exports and dumping of toxic wastes such as 

electronic wastes that currently are exported from developed countriessuch as the United

States to developing countries or countries with economiesin transition. BAN seeks to prevent

the exploitive externalization of costs and harm to weaker economiesin avoidance of proper 

upstream, job providing, waste management of hazardous wastes at source.

With regard to these comments BAN expects to receive a considered response on both the 

specific proposed rule changes outlined in the Federal Register but more importantly in this 

case, the rules changesthat have not been considered. Our comments and concerns do not

warrant avoidance of our proposed reforms based on the notion that these were not the

questions posed to commenters. As the public was not involved at the critical decisions about

what kinds of reforms of the CRT rule were/are needed, it is incumbent on the EPA to consider

all comments on rule revision in order to understand whether the existing proposals is sufficient

to address the underlying problem of environmentally harmful exports, from the United States

of CRTs and CRT glass to other countries.

PART I. US CRT Rule as Revised Ignores Basel Convention / Encourages Criminal

Trafficking in Hazardous Waste

The proposed rules may appear to be an improvement by providing some more transparency,

but added transparency is not at all the issue or the answer to the concerns at hand. The

concern at hand is whether the United States is willing to ensure that actions taken under their

jurisdiction will prevent illegal and/or harmful trafficking in what has been defined as hazardous

waste under international law. The issue is that the US government despite being fully aware of 

the Basel Convention rules and how they apply to 178 countries around the world fails to

address the fact that the exportsfor which the governmentseeks to garner more information

about are fundamentally illegal under international law. It is not enough to shed more light on 

illegal activity if you have not at first recognized it as such and addressed it as such by

prohibiting such exports unless they have the consent of the importing country.

US should never aid, abet, or knowingly allow illegalitiesto take place in foreign jurisdictions

by its own actions or lack of action in its own jurisdiction. For example even though the United
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States is as yet not a Party to the Basel Convention, they should neverthelessrecognize that

the vast majority of their trading partners (179 countries) are Parties and thus obliged to follow 

Basel rules. It is the height of arrogance to set US its own trade rules such as the CRT rule

which flies in the face of international communities established trade rules. By doing so, the US

contributesto situations that encourage foreign countries or their citizensto violate those rules. 

This institutionalized ignorance of the Basel Convention requirementsfor our trading partners is 

very hard to comprehend because the United States attends all meeting of the Basel Convention 

and thus should be fully familiar with that body of law.

Indeed, it was the concern of violating other country’s laws, which was one of the founding 

principlesthe EPA established with stakeholders at the outset of the R2 (Responsible Recycling) 

Practices negotiations. In those deliberationsthe principle was do nothing to violate other 

country’s laws. And yet the CRT rule allows this to happen everyday and will continue to do so 

even after the supposed improvements are made. For this reason it is imperative that the EPA 

consider a new set of rules which appropriately apply the Basel Convention norms for trading 

partners that are Basel Parties.

Basel Rules

 CRTs and CRT glass in all forms except those that are tested prior to export as fully 

functional and bound for a re-use market is considered as hazardous waste under

the Basel Convention. See (Basel Annex VIII (A2010), Basel’s Partnership for

Action on Computing Equipment’s (PACE) draft Guidance on Transboundary

Movement of Computing Equipment).

 The Basel Convention prohibits most importation of internationally defined

hazardous wastes from the United States to other countries. That which is not

prohibited is controlled by some form of notification and consent procedure.

The reasons for this are as follows:

 The Basel Convention in Article 4, para. 5, does not allow for the Parties to trade with

non-Parties unless a special bilateral or multilateral agreement exists that is 

consistent with the Basel Convention. The US is a non-Party and only has such an

agreement for export with the Organization for Economic Cooperation and 

Development (OECD) countries collectively and with the OECD countries Canada and

Mexico separately.

 The Basel Ban Amendment has been adopted by many countries and forbids the 

export of hazardous wastes from OECD, EU and Liechtenstein (Annex VII countries)

to all other countriesfor any reason.

 Countries (e.g. China) or regions (e.g. Africa) may possess waste trade import 

prohibitionsin law.
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The only exceptions to when used CRTs and CRT glass might not be covered under the Basel

Convention are as follows:

 Cleaned cullet if prepared for direct smelting as a feedstock in a primary CRT smelter

could be considered as a non---waste but such a designation would need to first be 

made by the importing country.

 Tested functional CRTs, properly packaged and exported to a known re---use market

and not subject to recycling or disposal are considered outside of the scope of the 

Basel Convention.

 In sum, in most cases, the only exports of non-functional or untested CRTs and CRT 

glass from the United States that are legal would be those going to other Basel nonParties (e.g. Taiwan) or exports that move to the 34 OECD countries and then only for 

the purposes of recycling and only under the procedures outlined in the OECD Council 

Decision C(2001)107/FINAL.

 All others moving to the 146 developing countries and countries with economies in 

transition that are Basel Parties but are not Parties to the OECD decision noted above

are illegal. Under the Convention, illegal traffic is considered criminal.

The CRT Rule’s distinction between exports for recycling (processed or otherwise) and re-use (if 

not direct reuse with tested and fully functional devices moving to a direct reuse market), are not 

legally relevant under the Basel Convention and thus the rules of importing countries. None of 

these forms of used CRTs, for recycling, disposal or further use, processed or not , are seen as 

commodities under the Basel Convention. They are viewed as hazardous waste. It was therefore

inappropriate for the EPA to promulgate its first CRT rule on the basis of these distinctions just as

it is inappropriate to perpetuate these distinctions as if US law were the only consideration when

trade is involved.

For example, cullet (glass processed by crushing) is not excluded from the Basel Convention. Its

presence on Basle Annex VIII is means that it is presumed to be hazardous.

Currently, massive amounts of whole CRTs and cullet are exported every day from the United 

States. Primarily the cullet goes to Korea, Indian (perhaps via the TDM company in Mexico) or 

Malaysia for glass-to-glass smelting to make new CRTs. Mostly these move illegally as they lack

the designation by the importing country as a non-waste and yet those countries cannot legally

trade in hazardous waste with the United States due to our non-Party status.

Likewise exports for repair or refurbishment have been scrutinized at the Mobile Phone 

Partnership Initiative (MPPI) and the Partnership for Action on Computing Equipment (PACE) 

under the auspices of the Basel Convention and both have produced guidelinesthat state that

when exported equipment is sent and the repair involves the discarding of a hazardous part 

during repair, then that export will in accordance with the provided Decision Tree will be 

considered as an export of hazardous waste.
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The whole CRTs are exported to South East Asia or China and to a lesser degree to Africa and 

South Asia for the stated purpose of re-use. Even though the US government is unable to collect

formalized data on such exports, the flows of these have been demonstrated conclusively by BAN 

by the techniques of direct observation and container tracking (data available upon request), or 

by the GAO in their “sting” operations.

Virtually all of these exports described above are illegal in some jurisdiction other than the US. 

Some of the exporting companies have notified EPA under the current CRT rules and some have 

not. But even when EPA is notified the two gaping loopholesto avoid “capture” by the law 

remain:

CRT Rule Loophole Number One

Under the previous and the revised rule, a major loophole is maintained in that "processed CRTs" 

pursuant to the definition of CRT Processing (i.e., CRT processing means conducting all of the

following activities: (1) Receiving broken or intact CRTs; and (2) Intentionally breaking intact CRTs

or further breaking or separating broken CRTs; and (3) Sorting or otherwise managing glass

removed from CRT monitors) is subject only to the speculative accumulation requirements.

Exporters of such materials are not subject to the export notice requirements of 40 CFR

261.39(a)(5). This is fundamentally contrary to the Basel Convention and consequently the laws

of 179 importing countries around the world.

The Basel Convention does not allow that simply crushing and sorting material suddenly very 

magically makes a hazardous material non-hazardous or a non-waste and it does not allow such 

glass to be exported without consent from the importing country. Yet under the US CRT revised 

rule, crushed CRTs could easily be exported without notification, even for dumping purposes or 

dangerous recycling operations and nobody would be the wiser. Furthermore these US exports 

are considered to be criminal trafficking in waste as soon as they leave our ports and enter the 

high seas.

CRT Rule Loophole Number Two

Another way exporters can avoid the law is to simply state that CRT tubes or monitors/TVs are 

not bound for recycling but for “reuse”. Then it is not necessary for EPA to prior notify and get 

consent of importing countries before shipment. Yet Basel Parties consider these exports of

used CRTs to be hazardous unless the tubes are tested for full functionality and pass that test.

They would not allow such imports but nevertheless we exempt these from the Basel norms 

while knowing full well that the imports are likely illegal. The reforms sought in this revision do 

little to change the fundamental fact that these exports require strict controls to be legal 

imports in the recipient countries. EPA buries its head in the sand about this fact.

Exporters of such CRTs bound for export are under the revised rule required to "certify under 

penalty of law that the CRTs described in this notice are fully functioning or capable of being 

functional after refurbishment." This begins to look like useful language to control exports 
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because functional equipment that is tested and labeled and shipped as such is not going to be 

considered a "waste" under Basel Convention rules. However the addition of the phrase "or 

capable of being functional after refurbishment," means that ANYTHING can be exported because

of course any device is capable of being fully functional after refurbishment. However 

refurbishment may not be economically or physically achievable in the real situation.

Also the law is mute about circuit boards and other devices going along for the ride. While

these devices are technically not CRTs, the exportsin reality are often other than just a bare tube

-- they include the housing and the ancillary devices. The circuit board is very likely to be 

considered hazardous waste under Basel due to the presence of lead in the board’s solder and 

very often, as in the Semi-Knock-Down market are not reused but are simply discarded in the 

importing country as toxic waste. This ancillary import of circuitry is likewise illegal from the 

standpoint of international law and the domestic laws of a Basel Party country. And yet these 

exports are likewise not required to be notified and receive consent in accordance with the Basel 

rules.

The CRT rule has been completely ineffectual in serving to stem the tide of illegal traffic.

Indeed it is difficult to determine the purpose of the rule. If it were designed to prevent criminal

trafficking it would have surely included a provision prohibiting all exportsthat are forbidden to 

import from the standpoint of the importing country and it would have provided a list of all of 

the 146 countriesthat the US cannot trade with (ie. Basel Parties not members of the OECD).

Not only does that not exist, but the existing rule does not even ask the exporters to declare 

which country/iesthey intend to ship to so US authorities can check on the legality. It is all too 

clear that the authors of the CRT rule did not want to reveal obvious illegality. For example the 

most common destination of exports are China, Vietnam, and Malaysia and the import 

prohibitions of these countries would be made transparent if the truth of the exports by the 

exporter were required to be reported.

However the revisions completely miss the mark. It is not more information that will prevent 

criminal trafficking of CRTs around the world; it is prohibiting the illegal behavior that will do 

so.

To avoid criminal trafficking in CRTs globally, and uphold the principle of not knowingly violate

other country’s laws the CRT rule must be fundamentally revised now to clarify which countries

have prohibited importsfrom the United States and to ensure that the US behaves as if it were

a Basel Party or an OECD Party when exporting others as applicable. Without first doing this,

the CRT Rule remains inappropriate and unacceptable. The currently proposed revisions are

indeed insignificant in the face of the continuous ongoing facilitation of criminal trafficking in

hazardous waste by the government of the United States. The CRT rule is the obvious place to

address this problem.

PART II. EPA’s Proposed Revisions
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While BAN will comment on the changes proposed (in italics), they will be meaningless without 

addressing the fundamental problem noted above.

A. Definition of "CRT Exporter"

“To eliminate any potential confusion over who is responsible for fulfilling CRT exporter duties,

including submitting the export notices required under 40 CFR 261.39(a)(5)(for CRTs exported for

recycling) and 40 CFR 261.41(for CRTs exported for reuse), the Agency is today proposing to add a 

definition of "CRT exporter" to 40 CFR 260.10. The proposed definition states that a CRT exporter

is ‘any person in the United States who initiates a transaction to send used CRTs outside the

United States or its territories for recycling or reuse, or any intermediary in the United States

arranging for such export.’”

In the case of Executive Recycling of Colorado, the owners claimed that they in fact did not intend

to export the CRTs, but rather they claimed their buyer did that without their knowledge and yet

BAN has evidence that “this mistake” happened dozens of times. It is far too easy for all sellers to

the eventual export market to claim that they are not exporters and had no idea the material

they sold would be exported and in this way avoid responsibility for the export. The definition

proposed does not solve this serious problem and continuesto allow the “generator” of the

waste to avoid prosecution. In BAN’s view, should a sellers equipment be later exported without

intermediary further processing or treatment, all of the entities in the disposal chain having held

the equipment even for a short time, including the original generator/seller and the final holder

prior to export must all be considered exporters. We don’t understand why the definition does

not include exports for final disposal as well. We would propose the following alternate export

definition to read as follows:

BAN Revised Language: “CRT Exporter: any person/s in the United States, including the initiator

and all subsequent intermediaries or exporters involved in transactionsto sell or transfer used

CRTs which later are exported outside the United States or its territories for disposal, recycling or 

reuse, without any intermediary processing or treatment."

With such a definition, the holder of CRTs will need to conduct their due diligence to know 

whether their CRTs will be exported or not. If they are, they are culpable for not fulfilling exporter

duties under the rule.

B. Proposed changes to the notification required for used CRTs sent for recycling

Many of the exports today going for recycling do not have the consent of the importing country 

despite the importing country’s laws requiring such in accordance with their obligations under 

the Basel Convention.

While, generally, as noted above, used CRTs are considered hazardous waste under the 

Convention, it is possible in the view of BAN for Basel Parties to declare the CRT cullet that has 

been cleaned of phosphors and prepared as a feedstock into a CRT furnace to make new CRTs can

be considered to be a non-waste and thus outside of the scope of the Basel Convention. The 
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Basel Competent Authorities of both the exporting and importing countries can only make that 

determination however. In any case then, exports cannot be allowed by the United States, and 

still respect the integrity of the laws of importing states without first determining the legality of 

the import by first notifying and then getting the consent of the importing country. To be legal 

under the Basel Convention, the countries of transit and import must be notified and give their 

consent or not on a case-by-case basis prior to transboundary movements. Thus EPA’s query 

based on company reporting on a yearly basis is not appropriate with respect to the laws of 

importing countries unless those importing countries stipulate that yearly queries/consents are 

appropriate in a particular case. EPA cannot declare a general consent procedure unilaterally.

The newly proposed yearly reporting requirements(cited below) are not going to provide caseby-case information and thus are not likely to be useful for receiving prior informed consent as 

required by the Basel Convention (Article 6). Further these reporting requirements are not even 

applied if the CRTs in question are “processed”. That distinction is not appropriate under the 

rules of importing countries. It is a fabrication of the US and since we are trying to prevent 

violations of other country’s laws and not just the US laws in our endeavor with the CRT Rule, this

distinction is not appropriate.

“Under today's proposal, the exporter must provide, no later than March 1 of each year, a report

summarizing the quantities(in kilograms), frequency of shipment, and ultimate destination(s)

(i.e., the facility or facilities where the recycling occurs) of all CRTs exported for recycling during

the previous calendar year. Such reports must also include the name, EPA ID number (if

applicable), mailing and site address of the CRT exporter, the calendar year covered by the

report, and a certification signed by the exporter which 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 individualsimmediately responsible

for obtaining the information, I believe that the submitted information is true, accurate, and 

complete. I am aware that there are significant penaltiesfor submitting false information,

including the possibility of fine and imprisonment."

The above formulation must be replaced with the following in accordance with Basel Annex V 

A in order not to violate the national laws applying Basel in the importing country.

BAN Revised language: “Prior to export the exporter must provide to EPA, a notification stating

the reason for export, CRT exporter/sincluding EPA ID number if applicable, source of CRTs,

ultimate destination address and entity, intended carriers and agents, country of import,

countries of transit, projected itinerary including points of entry and exit, means of transport,

insurance information, description of shipment, type of packaging used, estimated quantity (in

kilograms), frequency of shipment if general notification is accepted by all countries concerned,

fate or method of disposal, recycling or reuse, copy of contract between exporter and disposer,

and finally a certification signed by the exporter which states: "I certify under penalty of law that

the used CRTs will be managed in an environmentally sound manner, 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 individualsimmediately responsible for obtaining the information, I 

believe that the submitted information is true, accurate, and complete. I am aware that there are
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significant penaltiesfor submitting false information, including the possibility of fine and

imprisonment."

“Because CRTs are sometimes exported to more than one recycler in the receiving country, we

are proposing to replace this language with a requirement that the exporter state the name and 

address of the recycler or recyclers and the estimated quantity of CRTs to be sent to each facility,

as well as the names of any alternate recyclers. In this way, EPA will be able to provide the

receiving country with the most accurate information available about the ultimate fate of the

CRTs when they reach that country.”

This procedure is not consistent with the Basel process and once again shows that the United 

States refuses to recognize the rules the rest of the world must abide by. The Basel Convention 

only allows notificationsfrom one exporter to one consignee, as it should be for proper scrutiny 

and control. If an exporter does not know whom the consignee is, this should signal a serious 

problem. This change is not appropriate.

C. Proposed changes to the notification required for used, intact CRTs exported for reuse.

“Since promulgation of this requirement, the Agency has become aware that some CRTs 

allegedly exported for reuse are actually recycled in the receiving country, sometimes under

unsafe conditions.”

Actually BAN had informed the EPA of this fact before promulgation of the standard. In 2005

BAN published the report: “The Digital Dump: Reuse and Abuse in Africa”, and yet the

authors of the old CRT Rule chose to ignore this very important information. Once again in the 

case of this revision, EPA refuses to recognize the serious harm the US policies are perpetuating 

by intentionally choosing to ignore the Basel Convention and facts on the ground in developing 

countries.

“Failure to file the notice required for CRTs sent for recycling deprives the Agency of its ability to

notify the receiving country about the CRTs to be imported into that country and obtain its

consent. In order to require exporters to submit more complete information about the purported

reuse of the exported CRTs over a specific period of time, we are proposing to add items to the

reuse notice at 40 CFR 261.41 that are modeled on those required in the notice for CRTs exported

for recycling.”

It is not clear if EPA has the authority to exercise the prior informed consent procedure and 

prevent shipmentsfor reuse should there be no consent, under the CRT rule. In any case if they 

do possess this authority, they should exercise it in every instance because, as mentioned above, 

under the Basel Convention’s guidance prepared under the MPPI and PACE programs, exports for 

reuse following repair, are likely to be covered under the Basel Convention if they are not fully

functional and tested as such. Thus all such shipmentsshould be subject to notification and

consent prior to export. And the exports should first require all of the information BAN has listed

above with respect to notificationsfor recycling. That information is consistent with what is

required of importing countries under their Basel obligations as listed in Basel Annex V A.
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“In addition, today's proposal would replace the one-time notice provision with a requirement

that the notice be submitted periodically, to cover exports for reuse expected over a twelve

month or lesser period. EPA believesthat this additional information in the notice for reuse would

greatly improve tracking, and thus better management, of these CRTS that are claimed to be

exported for reuse.”

Again, EPA is unwilling to utilize what importing countrieslegally require. The assumption under

the Basel Convention is that countriesrequire a case-by-case notification and not a general 

notification every 12 months. Under the Basel Convention, general notifications are only allowed

when all Parties agree to it in advance (See Article 6). BAN does agree that the notifications must

be sent to the EPA federal Office of Enforcement and Compliance Assurance and not to the EPA

Regional headquarters.

“The Agency solicits comment on whether the proposed notice could effectively contain fewer

items of information, or whether the goal could be accomplished in some other manner. In 

addition, the Agency requests comment on whether the proposed notice should be sent to the

Regional Administrator (as is the case with 40 CFR 261.41) or to EPA Headquarters, where notices

for CRTs exported for recycling are currently sent. The Agency believesthat sending both types of

notices to EPA Headquarters would facilitate retention and effective tracking of such notices, and 

will also be easier for those exporters who are required to submit notices for both reuse and 

recycling. However, we solicit comment on whether there are benefits in sending these notices to 

the EPA Regions.”

BAN reiteratesthat all such notices include more information and not less and the correct 

information so that they are consistent with what is required under Basel (Annex V A). All notices

should go to federal headquarters, as that is what is expected by Basel Competent Authorities all

over the world.

“The Agency also solicits comment on whether to require exporters of CRTs for reuse to 

accompany all shipments of such CRTs with copies of the notice submitted pursuant to

40 CFR 261.41. If such a requirement were finalized, the Agency would require such exporters to

submit a complete notification to EPA before the initial shipment is intended to be shipped offsite (e.g., 60 days before the planned shipment), so that the exporter would have time to submit

a copy of the completed notice with the shipment. In this way, if officials of U.S. Customs

examined a shipment of used CRTs exported for reuse, they would be able to quickly obtain more

information from the exporter or from EPA, if necessary. The Agency solicits comment on the

benefits of such a requirement and whether such benefits would outweigh the costs to the

exporter.”

As is required in the Basel Convention, all shipments of used CRTs for reuse or recycling, unless 

tested as being fully functional must be accompanied by a movement document (Basel Annex V 

B), containing the following information: exporter, generator, disposer/recycler, carriers, date of 

shipment,signature of each holder en route, means of transport, general description of the

material, information on special handling, type and number of packages, quantity in weight and
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volume, declaration of truth, declaration of no objection from the transit and importing states

after pre-notification, certification by disposer/recycler indicating method of disposal/recycling

and the appropriate date of disposal/recycling.

“EPA solicits comment on whether to require specific types of documents to be retained, such as 

contracts, invoices, and/or shipping documents, and, if so, which documents

must be retained.”

BAN believes that documentsshould be retained for 3 years and should include, all invoices with

brokers, shippers, forwarding agents, shipping lines, and truck drivers. All Bills of Lading 

including intermodalshipping container numbersshould also be retained as well as copies of 

insurance.

“We also solicit comment on whether to require persons who export CRTs for reuse to provide a 

third-party translation of the documents into English if the documents are written in a language

other than English and if EPA requests such a translation.”

Copies in English must be made available as described. But this must be done for all shipments 

and not just those listed for reuse.

“In addition, we request comment on whether to require persons who export CRTs for reuse to

provide contact information on an alternative destination facility for used, intact CRTs that are

damaged in transit, or whether to require such persons to send the damaged CRTs back to the

CRT exporter.”

In BAN’s view broken equipment should be returned to the sender. This will ensure EPA can 

have jurisdiction over the final disposal/recycling operation after something has already gone 

wrong, this is warranted.

“Finally, the Agency also solicits comment on whether to add a requirement to submit annual

reports for exporters of used, intact CRTs for reuse. These reports could be identical to the

reports proposed for CRTs exported for recycling. They would enable EPA to learn the actual

number of CRTs exported for reuse, which may be different from the number estimated in Page

18 of 34 the original notice required under 40 CFR 261.41. EPA requests comment on whether

this information would provide benefits which might outweigh the costs of submitting the

report.

Annual reports will not be necessary if all of the reporting as described above is done as BAN 

has described and in accordance with the Basel Convention. EPA computers will be able to 

process those numbers and produce all manner of comprehensive reports.

D. Other Issues

"Bare" CRTs
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“The current definition of "used, intact CRT" in 40 CFR 260.10 means a CRT whose vacuum has not

been released. As we stated in the preamble to the 2006 final rule (71 FR 42942), this definition

would encompass intact CRTs that are removed from the monitor with the vacuum still intact,

even though the plastic housing or casing has been broken and removed. In that preamble, EPA

stated that these materials resembled products more than wastes, and therefore should not be

considered solid wastes unless disposed. If such "bare" CRTs are exported for reuse (i.e.,

placement into CRT monitors), they would not be subject to the export requirements of 40 CFR

261.39(a)(5), but would instead be subject to the reuse requirements of proposed 40 CFR 261.41. 

However, if exported for recycling, (presumably for glass or lead recovery), they would not be

eligible for the exclusion in 40 CFR 261.39(c) for processed glass sent to a lead smelter or glass

manufacturer because the CRTs have not been processed pursuant to the definition of "CRT

processing" in 40 CFR 260.10.”

Once again, EPA is inappropriately applying its own national definitions to exportsthat impact 

the international legal landscape, yet are not shared by any other country. This approach is not 

conducive to legal movements of waste globally and in fact will contribute to criminal activity. 

The Basel Convention does not make any distinctions between tubes with or without a vacuum. 

Only material that is fully functional following testing and guaranteed to go to a reuse market 

are exempt from the Basel Convention. This rule must do likewise for all exports to Basel 

Parties.

“EPA solicits comment on whether "bare" CRTs removed from the monitor whose vacuum has 

not been released are likely to be exported for recycling rather than reuse and whether the

regulation needs to be modified to reflect this situation.”

Export of bare tubes for which the vacuum has been released is likely to be only used for 

recycling. However tubes, bare or otherwise, whose vacuum has not been released and are 

intact can very well be exported directly to developing countriesfor recycling as well. There is 

still a robust market for the plastic housings and the copper yokes for example.

PART III: Enforcement

According to the GAO report of 2008 entitled “EPA Needs to Better Control Harmful U.S. 

Exportsthrough Stronger Enforcement and More Comprehensive Regulation” the following is 

stated:

“In recent years, however, irresponsible practices have come to light, prompting EPA to 

implement notification requirements for any company exporting CRTs. To date, the agency has 

established no enforcement targets, done no monitoring, conducted only preliminary follow-up 

of suspected violations, and taken only one enforcement action. Not only do EPA’s present 

enforcement efforts fall short, but the agency also apparently has no tangible plans to develop 

more effective ones. Until an enforcement mechanism is developed and effectively implemented, 

consumers and businesses aiming to be environmentally responsible with their used 

electronics—particularly CRT monitors and televisions—should be skeptical of some companies 

that claim to responsibly recycle these devices.”
16

“We recommend that the Administrator, EPA, identify a timetable for developing and 

implementing a systematic plan to enforce the CRT rule. This plan should include the basic 

elements of effective enforcement, such as enforcement targets, monitoring, follow-up of 

suspected violations, and prosecution.”

The response by EPA to this critique of the GAO has been an appalling disappointment. To our 

knowledge EPA only has one enforcer assigned to the CRT Rule and that person is only assigned 

to the matter part-time. Three high-profile cases have been revealed in recent years and not

one has led to a prosecution, let alone penalties. These cases involve Executive Recycling in

Colorado (2008), Earth e-Cycle in Pennsylvania (2009), and Intercon Solutions in Illinois (2011) 

all with substantial proof of illegal exports provided to EPA. This is hardly surprising with the

lack of resources dedicated to the cause of enforcing the law even when the evidence is handed

to EPA by outside sources.

The CRT rule should not be revised unless EPA intends to follow the GAO’s advice and enforce 

the revised rule. In many ways an unenforced law is worse than no law at all. It instills a lack of 

respect for all laws and authority.

EPA	Response

In response to BAN’s comments in Part I: “US CRT Rule as Revised Ignores Basel 

Convention/Encourages Criminal Trafficking in Hazardous Waste.”

EPA agrees with BAN that the revisions in the final rule provide more transparency with regards 

to exports of used CRTs for reuse and recycling. EPA believes that the revisions, including the 

revised notice for used CRTs exported for recycling and annual reports for used CRTs exported 

for reuse, will allow the Agency to better track exports of CRTs in order to ensure safe 

management of these materials. The final rule, thus, reduces the potential for illegal or harmful 

trafficking of used CRTs. Additionally, EPA notes that exports of used CRTs for recycling are 

prohibited unless EPA receives consent from the importing country.

EPA does recognize that the vast majority of countries are parties to the Basel Convention, and 

are thus obliged to follow the Basel requirements. EPA provides guidance to this effect where 

applicable, for example, in response to questions from the regulated community or in responses 

to inquiries from foreign countries. However, while the United States is a signatory to the Basel 

Convention, the United States is not a party to the Basel Convention. EPA does not agree that 

the EPA should consider promulgating rules based on the Basel Convention without the United 

States first becoming a party to the Convention. Additionally, EPA notes that, upon receiving 

notice of export of used CRTs for recycling from the EPA, an importing country may choose 

whether to consent or withhold consent in accordance with the importing country’s regulations, 

including the Basel Convention requirements, if applicable. Furthermore, the final rule requires 

more information regarding used CRTs exported for reuse, which EPA can use to respond to 

inquiries from foreign countries. 
17

Because the United States is not a party to the Basel Convention, BAN’s specific comments 

regarding the Basel rules are thus not applicable to the CRT rule.

In response to BAN’s comments in part 1: “CRT Rule Loophole Number One.”

In the July 2006 CRT final rule, EPA explained that processed CRT glass (i.e., glass that has been 

broken and sorted) is commodity-like and thus should be excluded from the RCRA definition of 

solid waste. In particular, the Agency found that processed CRT glass sent to glass manufacturers 

or lead smelters needs minimal further processing and has economic value and strong end 

markets. EPA also found that processed CRT glass is similar to materials that glass manufacturers 

and lead smelters use as feedstock and that it is handled to minimize loss. Therefore, EPA did 

not finalize conditions for processed CRT glass, beyond requiring that the glass not be 

speculatively accumulated. (71 FR 42936) 

In response to BAN’s comments in part 1: “CRT Rule Loophole Number Two.”

Under the final rule, CRT exporters of used CRTs exported for reuse must send a notification to 

EPA that would cover export activities extending over a 12-month or lesser period. The written 

notification, signed by the exporter, must contain the following information listed in § 261.41, 

including the name, mailing address, telephone number, and EPA ID number (if applicable) of 

the exporter of the used, intact CRTs; the estimated frequency or rate at which the used, intact 

CRTs are to be exported for reuse and the period of time over which they are to be exported; the 

estimated total quantity of used, intact CRTs specified in kilograms; all points of entry to and 

departure from each transit country through which the used, intact CRTs will pass, a description 

of the approximate length of time the used, intact CRTs will remain in such country, and the 

nature of their handling while there; a description of the means by which each shipment of the 

used, intact CRTs will be transported (e.g., mode of transportation vehicle, such as air, highway, 

rail, water, etc.), as well as the type(s) of container (drums, boxes, tanks, etc.); the name and 

address of the ultimate destination facility or facilities where the used, intact CRTs will be 

reused, refurbished, distributed or sold for reuse and the estimated quantity of used, intact CRTs 

to be sent to each facility, as well as the name of any alternate destination facility or facilities; a

description of the manner in which the used, intact CRTs will be reused (including reuse after 

refurbishment) in the foreign country that will be receiving the used, intact CRTs; and a 

certification signed by the CRT exporter.

This additional information will enable better reporting by EPA in response to information 

requests from receiving countries and other interested parties regarding exports of used CRTs 

for reuse. This information will, in turn, enable effective compliance monitoring by EPA and 

those countries receiving such exports, which decreases the risk of potential mismanagement of 

the materials.

EPA agrees with BAN that the proposed certification language could be clearer regarding the 

standard for used, intact CRTs exported for reuse. Therefore, EPA has amended the proposed 

certification language to read “that the CRTs described in this notice are intact and fully 

functioning or capable of being functional after refurbishment and that the used CRTs will be 
18

reused or refurbished and reused....” EPA believes that the addition of “are intact” makes it clear 

that broken CRTs would not meet this standard and thus could not be exported for reuse. EPA 

also notes that CRT exporters, including exporters that do not have physical access to the CRTs, 

such as a broker or intermediary, are responsible for ensuring that the used CRTs are intact and 

fully functioning or capable of being functional after refurbishment and that the used CRTs will 

be reused or refurbished and reused.

Additionally, EPA affirms that persons notifying that they are exporting used, intact CRTs for 

reuse, but whose CRTs are subsequently not reused, but recycled or disposed, may be subject to 

enforcement action under RCRA section 3008(a) for violations of the hazardous waste 

requirements occurring from the time the hazardous secondary materials are generated through 

the time they are ultimately disposed or recycled. The Agency affirms that § 261.2(f) applies to 

claims that hazardous secondary materials are not solid waste or are conditionally exempt from 

regulation. Respondents in enforcement actions should be prepared to demonstrate that there 

is a known market (for reuse of the used, intact CRTs) and that they are meeting the terms of the 

exclusion.

Regarding circuit boards that are exported along with the used CRTs, EPA notes that CRT 

exporters that export used CRTs for recycling must provide notice and obtain consent from the 

importing country prior to exporting the CRTs. Thus, an importing country may choose to 

consent or withhold consent of the export in accordance with the importing country’s 

regulations, including the Basel Convention rules, if applicable.

EPA does not agree with BAN that the rule does not even ask the exporters to declare which 

countries they intend to export used CRTs to. In fact, under the final rule, both exporters of used 

CRTs for recycling and reuse must send a notification to EPA that would cover export activities 

extending over a 12-month or lesser period and which includes all points of entry to and 

departure from each transit country through which the used CRTs will pass as well as the 

ultimate destination facility and name of any alternate destination facility.

Because the United States is not a party to the Basel Convention, EPA does not agree with 

revising its regulations to specifically prohibit exports to certain countries. As stated previously, 

EPA does offer guidance to the regulated community and to foreign countries regarding the 

intersection of U.S. federal regulation of used CRTs and, where applicable, the Basel Convention.

In response to BAN’s comments in Part II: “EPA’s Proposed Revisions.”

A. Definition of “CRT Exporter”

EPA disagrees with BAN that the definition of “CRT exporter” should be expanded to include all 

entities along the electronic recycling chain, regardless of whether these entities are engaged in 

export activities, such as initiating a transaction to, or arranging for, export of CRTs.
19

In many cases, generators of CRTs do not possess the expertise to determine whether certain 

CRTs can and may be reused, refurbished, or recycled—whether domestically or internationally. 

Many generators contract out collection and management of used CRTs to a recycling facility, 

whose business includes making these determinations. Thus, EPA does not believe that 

generators should automatically meet the definition of “CRT exporter” because, in many cases, 

the generator would not be making the decision to export the used CRTs and moreover would 

lack specific knowledge of the exporting operations (e.g., foreign destination facility, quantity of 

used CRTs to be exported) needed to submit export notices. 

However, generators of used CRTs that do make the decision to export certain CRTs and thus 

initiate, or arrange for, export of used CRTs, would meet the definition of “CRT exporter” and 

thus would be responsible for fulfilling the CRT exporter duties. (As noted previously, if more 

than one person is a CRT exporter, then only one person must perform the exporter duties 

under §§ 261.39(a)(5) and 261.41, however, all CRT exporters are liable if the exporter duties are 

not fulfilled.)

As an example of how the definition would apply, a state may contract with a recycling facility to 

collect and recycle used electronics, including used CRTs. The recycling facility makes the 

decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also 

makes the decision whether to reuse or recycle the CRTs domestically or whether to export the 

used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling 

facility, are not involved in the decision-making to export certain CRTs and are not initiating a 

transaction to export, or arranging for export. Thus, these entities would not be considered a 

“CRT exporter” and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether 

and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the 

recycling facility is making the decision to export certain CRTs and is thus initiating a transaction 

to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the 

CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, 

both the recycling facility (which initiated the export) and the broker (who arranged for the 

export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has 

collected CRTs and is storing them on site. In this case, the electronic recycler determines how 

the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic 

recycler also initiates the transaction to export by partnering with a broker to find foreign 

entities that can reuse or recycle the CRTs abroad—that is, the broker acts as an intermediary 

and makes arrangements for the export of used CRTs by soliciting and evaluating bids from 

foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In 

addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing 

or receiving information from the broker and packaging and preparing the used CRTs for 
20

transport across international boundaries. Therefore, both the electronic recycler and the broker 

are CRT exporters.

B. Proposed Changes to the Notification Required for Used CRTs Sent for Recycling

EPA does not agree that used CRTs exported for recycling lack the consent of the importing 

country. Under the CRT rule, CRT exporters that export used CRTs for recycling must provide 

notice and obtain consent from the importing country.

EPA has concluded that notice and consent based on a 12-month or lesser period, coupled with 

today’s condition to submit annual reports for the CRTs actually exported over the previous 12-

month or lesser period, provides sufficient information to adequately monitor the export of used 

CRTs in order to ensure proper management of these materials abroad. Specifically, EPA would 

be able to analyze specific shipments from exporters by comparing actual shipments in the 

annual report against the proposed shipments in the export notice to ensure that the shipments 

occurred under the terms approved by the receiving country. Requiring notice and consent on a 

per shipment basis, as this commenter suggests, would not provide any additional protection, 

but would increase the burden for CRT exporters and EPA, as well as receiving and transit 

countries. Furthermore, EPA notes that the receiving country always has the option of specifying 

consent for a lesser period, or on a per shipment basis, if it chooses to do so. Finally, we note 

that while the United States is a signatory to the Basel Convention, the United States is not a 

party to the Basel Convention.

C. Proposed Changes to the Notification Required for Used, Intact CRTs Exported for Reuse

EPA disagrees with BAN that the Agency refuses to recognize that some CRTs that are exported 

for reuse are actually recycled in the receiving country, sometimes under unsafe conditions. In 

fact, the final rule finalizes revisions to the export provisions of the CRT rule to enable better 

reporting by EPA in response to information requests from receiving countries and other 

interested parties regarding exports of used CRTs for reuse. For example, in the final rule, 

exporters of used, intact CRTs sent for reuse must send a notification to EPA that would cover 

export activities extending over a 12-month or lesser period. This information will, in turn, 

enable effective compliance monitoring by EPA and those countries receiving such exports, 

which decreases the risk of potential mismanagement of the materials.

EPA considers used CRTs exported for reuse to be more like products and thus EPA does not 

agree with requiring CRT exporters to obtain consent, such as is required for used CRTs exported 

for recycling. However, EPA has concluded that our authority to request information about used 

CRTs being exported for reuse is inherent in our authority to determine whether a material is 

discarded. Thus, in the final rule, EPA is requiring additional information of CRTs exported for 

reuse and to require submittals to cover exports over a 12-month or lesser period. EPA notes 

that the information in the notice is similar to what is required of importing countries under 

their Basel obligations. However, we also note that while the United States is a signatory to the 

Basel Convention, the United States is not a party to the Basel Convention.
21

EPA has concluded that notice and consent based on a 12-month or lesser period, coupled with 

today’s condition to submit annual reports for the CRTs actually exported over the previous 12-

month or lesser period, provides sufficient information to adequately monitor the export of used 

CRTs in order to ensure proper management of these materials abroad. Specifically, EPA would 

be able to analyze specific shipments from exporters by comparing actual shipments in the 

annual report against the proposed shipments in the export notice to ensure that the shipments 

occurred under the terms approved by the receiving country. Requiring notice and consent on a 

per shipment basis, as this commenter suggests, would not provide any additional protection, 

but would increase the burden for CRT exporters and EPA, as well as receiving and transit 

countries. Furthermore, EPA notes that the receiving country always has the option of specifying 

consent for a lesser period, or on a per shipment basis, if it chooses to do so. Finally, we note 

that while the United States is a signatory to the Basel Convention, the United States is not a 

party to the Basel Convention.

EPA agrees with BAN that all notices should go to federal headquarters and thus, the final rule 

requires all notifications to export CRTs, whether for reuse or recycling, must be sent to EPA’s 

Office of Enforcement and Compliance Assurance.

EPA disagrees with BAN that all shipments of used CRTs for reuse or recycling must be 

accompanied by a movement document. Although EPA has considered whether this would be 

helpful to officials of U.S. Customs who would be examining a shipment, EPA is not finalizing this 

condition because we do not believe it would serve much purpose, especially since notices for 

exports of used CRTs for reuse involve no consent or terms of consent by the importing country, 

and thus, we do not believe an accompanying notice is necessary for protection of human health 

and the environment. We would also note that while the United States is a signatory to the Basel 

Convention, the United States is not a party to the Basel Convention.

EPA agrees with BAN that business records for used CRTs exported for reuse be retained for a 

period of at least three years from the date the CRTs were exported. Therefore, EPA has finalized 

this condition at 40 CFR 261.41(b). EPA has decided not to require the CRT exporter to retain 

specific types of documents because the Agency expects that the normal business records for 

used, intact CRTs sent for reuse, which the CRT exporter is required to maintain for three years 

under § 261.41(b), would likely contain the appropriate information for meeting the condition. 

Examples of normal business records include contracts, invoices, and bills of lading.

EPA agrees with BAN that persons who export used, intact CRTs for reuse to provide a thirdparty translation of the documents into English if the documents are written in a language other 

than English and if EPA requests such a translation. Therefore, EPA has finalized this condition at 

40 CFR 261.41(b). EPA believes that requiring CRT exporters to provide an English translation of 

normal business records upon request by EPA is inherent in the demonstration that each 

shipment of used, intact CRTs will be reused. English translation will also assist with compliance 

monitoring of this provision. 
22

EPA has decided not to finalize specific regulatory conditions for used, intact CRTs that become 

damaged in transit. CRTs that are exported for reuse and subsequently become damaged in 

transit to the extent that the importing facility in the receiving country determines that the CRTs 

cannot be reused would typically be returned to the CRT exporter. To the extent that CRT export 

shipments for reuse will regularly and predictably include a percentage that ultimately need to 

be recycled, the original notice for reuse would not cover any subsequent shipping of damaged 

CRTs to a recycling facility in that country. Unless the damaged CRTs are sent back to the 

exporter for management in the U.S., the exporter would need to submit a notice to EPA to 

export a specified amount of used CRTs for recycling at the recycling destination facility in the 

destination country in order to obtain consent from the country of import prior to sending any 

of the unusable CRTs from the reuse/refurbishment site to that recycling destination facility.

EPA has decided not to finalize a requirement that annual reports be submitted by CRT exporters 

who export CRTs for reuse. The export provisions for used, intact CRTs exported for reuse are 

quite different from the export provisions for used CRTs exported for recycling. Specifically, used 

CRTs exported for recycling must comply with the notification and consent procedures. In this 

case, the annual report is needed to ensure that CRTs were exported according to the terms 

approved by the receiving country. However, used, intact CRTs exported for reuse must submit a 

notification only and do not need consent of the receiving country. Thus, upon further 

consideration and analysis, the Agency does not believe that the submission of such an annual 

report for CRTs exported for reuse is needed and would impose burden on the CRT exporter. We 

would also note that while the United States is a signatory to the Basel Convention, the United 

States is not a party to the Basel Convention.

D. Other Issues – “Bare” CRTs

EPA is not making any regulatory changes pertaining to the issue of “bare” CRTs. Upon further 

consideration, EPA continues to believe that “bare” CRTs (meaning intact CRTs that are removed 

from the monitor while the vacuum is still intact) are more product-like than waste-like, that is, 

bare CRTs more closely resemble functional CRTs as opposed to broken CRTs or CRTs that must 

be recycled. Therefore, if “bare” CRTs are exported for reuse, they would not be considered 

subject to the export conditions of § 261.39(a)(5) (export provisions for CRTs exported for 

recycling), but rather would be subject to the export requirements of § 261.41 (export provisions 

for CRTs exported for reuse). We would also note that while the United States is a signatory to 

the Basel Convention, the United States is not a party to the Basel Convention.

In response to BAN’s comments in Part III: Enforcement

EPA acknowledges BAN’s comments that said that EPA lacks resources dedicated to the cause of 

enforcing the CRT rule. EPA believes the revisions in the final rule will assist with compliance 

monitoring of the CRT rule.
23

Consumer Electronics Association (CEA) and Consumer Electronics Retailers 

Coalition (CERC)

Comment

May 14, 2012

Dear Sir or Madam:

Thank you for the opportunity to provide comments on the proposed revision to the export 

provision of the cathode ray tube (“CRT”) rule, which the US Environmental Protection Agency 

(“EPA”) published in the Federal Register on March 15, 2012 (77 FR 15336).

The Consumer Electronics Association

®

(“CEA”) and the Consumer Electronics Retailers Coalition

(“CERC”) jointly submit these commentsfor EPA’s consideration. CEA represents more than

2,000 companies involved in the design, development, manufacturing, distribution and 

integration of audio, video, in-vehicle electronics, wireless and landline communications, 

information technology, home networking, multimedia and accessory products, as well as

related services that are sold through consumer channels. CERC is a not-for-profit public policy 

organization that includes major specialist and general retailers of consumer electronics

products, and retailer associations.

As producers, sellers, collectors, and recyclers of electronic products, CEA and CERC members 

strongly support EPA’s goal of promoting the responsible recycling of CRTs and CRT-containing 

products. CEA and CERC also strongly support the need for EPA to establish a rigorous and 

effective system for ensuring the responsible export of CRTs and CRT-containing products. CEA 

and CERC, however, are concerned with certain provisions contained in the proposed rule that 

may unintentionally discourage the responsible recycling and reuse of CRTs and CRT-containing 

products. CEA and CERC’s specific comments are outlined below.

(1) Proposed Definition of “CRT Exporter” Must Include an Actual Knowledge

Component

The proposed definition of “CRT exporter” would include “any intermediary .arranging” for

CRT export. This proposed definition is too broad as it may encompass entities that lack direct 

knowledge about CRT export. A collector may deliver used CRTs for recycling under a 

contractual agreement that they not be exported – yet, under the proposed rule, the

collector could still be considered to be an “intermediary” if the used CRTs are ultimately

exported. Or, a collector may transfer ownership of used CRTs without knowledge whether or

not they will ultimately be exported, but, acting responsibly, stipulate contractually that if

items are exported, all federal and state export requirements must be met. In neither of

these cases should the collector be considered a CRT export “intermediary.” In neither case 

would the collector have any knowledge that the CRTs will be exported or have any power to

control their final disposition. Nor would the collector have access to the information that (as

discussed below) the EPA now proposes to require CRT exporters to disclose. The inclusion of a
24

provision forbidding the export or requiring the lawful disposal, if exported, in a contract

between a collector of CRTs and an entity that accepts the CRTs, should not be construed as

making the collector an “intermediary.” To do so would be perverse and at odds with the EPA’s

objectives of encouraging responsible CRT management, as it would provide a strong

disincentive for the collection and consolidation of used CRTs.

The current CRT rule recognizes that CRT export notification is triggered by the “intent to

export” CRTs. The rule states that CRT exporters must “[n]otify EPA of an intended export

before the CRTs are scheduled to leave the United States” (emphasisadded). 40 CFR § 261.39

(a)(5)(i). This is, appropriately, an actual knowledge standard. Accordingly, to the extent that

EPA is to consider anyone other than the actual CRT exporter to be the “CRT exporter,” (1)

the entity should have specific knowledge with respect to the CRT export transaction at issue,

and (2) the knowledge should be actual rather than imputed.

The proposed rule would establish new reporting obligations for CRT exporters, including the 

submission of annual reports that contain a certification statement. Imposing new “CRT

exporter” notification requirements, including certification obligations, on intermediaries would

be onerous and counter-productive in the absence of specific and actual knowledge that CRT

export will occur and such a requirement may discourage responsible collection activities. The

export notification requirements would impose an unfair burden, because, as in the cases

discussed above, the collector is likely to lack the specific knowledge that is necessary to sign

such a certification. This proposed definition of “CRT exporter” may ensnare many entities that

are far removed from the actual act of exporting CRTs, including state and local government 

agencies, electronics producers, retailers, charitable organizations, waste management firms,

recycling firms, and brokers, collectors and consolidators. It would be both poor policy and

unfair to make these entities potentially liable for the actions of the direct CRT exporter.

(2) Inclusion of Intermediaries in Proposed Definition of “CRT Exporter” Would

Confuse Export Notification Obligations

As stated above, the proposed rule would define a “CRT exporter” as “any person in the United 

States who initiates a transaction to send used CRTs outside the United States territories for 

recycling or reuse or any intermediary in the United States arranging for such export” (emphasis

added)(Ibid). According to the preamble, the proposed definition of “CRT exporter” is designed 

“[t]o eliminate any potential confusion over who is responsible for fulfilling CRT exporter duties, 

including submitting the export notices required” (Ibid at 15338).

CEA and CERC are concerned that the proposed definition of “CRT exporter” would actually add 

confusion to the CRT export notification process by adding “intermediaries” to the entities

that would have CRT export notification obligations. The proposed definition may produce an 

unintended consequence of allowing entities that directly export used CRTs to shirk their export 

notification responsibilitiessince, under the proposal, other entities would be equally

responsible.

CEA and CERC encourage EPA to apportion CRT export notification responsibilities based on 

the actual and proximate knowledge and degree of control over the CRTs or CRT-containing 
25

products being exported. The entity with direct control over the actual CRT export should bear 

the primary responsibility for CRT export notification. CEA and CERC urge EPA to define “CRT 

exporter” as the entity that is directly responsible for the CRT export. Casting the liability net 

wider will not produce the intended result of improved CRT export notifications. Rather, 

increasing the number of potentially responsible parties will only provide direct CRT

exporters with more defenses and reasonsto avoid their legal obligations.

(3) Proposed Definition of “CRT Exporter” Would Improperly Impose “Joint and

Several” Liability on All Intermediaries

The proposed definition of “CRT exporter” would impose new CRT exporter duties and their 

attendant Section 3008(a) liabilities on all entities that participate in the chain of businesses that 

collect, refurbish, dismantle, recycle, and reprocess used electronic products and their 

components. According to the proposed rule’s preamble, “all persons are jointly and severally 

liable for failing to comply with the exporter requirements” (Ibid at 15338). EPA adds, “[i]n

other words, EPA has the authority to enforce the CRT rule export regulations against all

persons associated with the export who meet the definition of “CRT exporter” (Ibid).

While CEA and CERC understand and support EPA’s intent to ensure that appropriate export 

notification occurs, EPA’s proposed definition of “CRT exporter” would extend liability for export 

notification to all intermediaries that may have some role (no matter how small) in arranging

CRT export. The use of joint and several liability to justify an extremely broad definition of “CRT 

exporter” is improper since the legal obligations associated with CRT export notification can be 

linked to the entities that have the specific and actual knowledge that the CRTs will be

exported. In other words, making entities far removed from the actual CRT export “jointly

and severally liable” for the direct CRT exporter’sfailure to notify constitutes an improper

application of joint and several liability, which is typically used in cases where causation

cannot be tied to a specific action or actor.

As stated above, the definition of “CRT exporter” should only include entities that have specific 

and actual knowledge or intent to export CRTs or CRT-containing products out of the United 

States. EPA’s proposed definition of “CRT exporter” would include “any intermediary in the 

United States arranging for such export” (emphasis added). The problem with this formulation is 

that the phrase “or intermediary” is not explicitly tied to the intention to arrange for CRT

exports. In the interests of fairness and appropriate incentives, and in the context of

developing markets for CRT collection, there should be a clear nexus between the entity covered

as a “CRT exporter” and the actual act of CRT exporting. CEA and CERC urge EPA to clarify the

definition of “CRT exporter” to reflect a requirement that there be specific and actual knowledge

and intent.

CEA and CERC recognize that certain intermediaries (i.e., the ones with the closest nexus to the 

actions of the CRT exporter) may be able to influence the direct CRT exporters’ export activities; 

however, the definition of CRT exporter should not encompass intermediaries generally. As 

noted above, the definition should not include collectors absent specific ties to an export 

transaction and actual knowledge and intent. Rather. EPA should work with intermediaries to 

explore how they could use non-regulatory methods to direct CRT exporters to meet their
26

export notification provisions. Such methods include contractual provisions, recycling

certifications and other commercial terms.

(4) Proposed Rule Would Improperly Regulate CRTs that are Sent for Reuse as Solid

Wastes

The Resource Conservation and Recovery Act (“RCRA”) provides EPA with regulatory jurisdiction 

over solid wastes. The proposed rule would establish a new regulatory requirement for

used, intact CRTs that are being exported for reuse. CEA and CERC oppose the proposed 

requirement that would establish an annual reporting requirement for exporters of used,

intact CRTs that are sent for reuse because such materials are not solid wastes and,

therefore, not subject to EPA’s regulatory jurisdiction.

In the preamble to the original proposed CRT rule, issued in June 2002, EPA stated:

“EPA is today clarifying that we do not consider a user sending a CRT to a reseller for 

potential reuse to be a RCRA generator. Furthermore, EPA today clarifies that used

CRTs undergoing repairs before resale or distribution are not being “reclaimed” and

are considered to be products “in use” rather than solid wastes” (67 FR 40508 at 

40511).

The final CRT rule, published in July 2006, reiterated that “used intact CRTs exported for reuse 

are not solid wastes” (71 FR 42928 at 42929). The final rule, however, established a one-time 

notification requirement for CRT exporters that ship used intact CRTs for reuse. In the preamble 

to the final rule, EPA wrote:

The Agency notes that intact CRTs exported for reuse are identical in appearance

to those exported for recycling. Consequently, to help ensure that the intact CRTs are 

actually reused abroad, we are requiring persons who export used, intact CRTs for

reuse to submit a one-time notification to the Regional Administrator.These

notifications will allow regulatory authorities to contact the notifier, when appropriate,

to ask for verification that the CRTs are exported for reuse instead of recycling or

disposal... We believe that our right to require such basic notification is inherent in our

authority to regulate discarded materials, and in our RCRA section 3007 authority to

obtain information pertaining to materials that may become solid or hazardous

wastes. Because a one-time notification is adequate to give the Regional Administrator 

notice about persons who are exporting for reuse, additional notifications are not

necessary each time CRTs are exported for this purpose (emphasisadded) (Ibid at

42939).

Although it could be argued that the one-time export notification requirement represents an 

impermissible exercise of EPA authority over products, which even the EPA acknowledges are 

not “solid wastes,” the proposed rule further expands EPA’s regulatory jurisdiction over

such commodities. A one-time notification to the Regional Administrator may be adequate and 

reasonable; an annual notification is certainly not. An annual notification requirement for

used intact CRTs that are being shipped for reuse constitutes the same burden as an annual 
27

notification requirement for CRTs that are being shipped for recycling. CEA and CERC object to 

the proposed rule which would treat used CRTs that are being shipped for reuse in the same 

manner as CRTs that are being shipped for recycling. Applying the same regulatory 

requirements to “products” that are imposed on “wastes” fails to recognize the differences 

between these two material streams and is also inconsistent with EPA’s regulatory authority.

Furthermore, a regulatory requirement that CRT exporters provide annual notification of the 

shipment of used intact CRTs that are destined for reuse will not address EPA’s concern 

regarding the improper recycling or disposal of CRT materials. Rather, it could discourage their 

reuse and refurbishment. There may be no incentive to reuse and refurbish CRT products if they 

are subject to the same export notification provisions as CRTs that are being shipped for 

recycling. If EPA wants to provide assurance that CRTs that are exported are managed properly 

in overseas markets, it will need to engage in those countries and work in partnership with those 

markets to address regulatory gaps or enforcement weaknesses contained in their laws.

CEA and CERC recommend that EPA work with stakeholders to determine criteria that the 

Agency could use to determine when used intact CRTs resemble a “solid waste” versus when 

they resemble a commodity. The criteria might include packaging (e.g., whole, intact

monitors that are properly packaged to prevent damage or facilitate resale are typically

consistent with intended reuse), resale value (e.g., ability to demonstrate that payment will be

received for materials), contractual provisions (e.g., guarantee that the receiving party has

the capacity to repair or refurbish the product and properly recycle any by-products), and

shipping manifests that are consistent with intended reuse. Simply characterizing all shipments

of used intact CRTs that are shipped for reuse represents an impermissible overreach of

regulatory authority over products which could discourage their legitimate reuse.

(5) CRT Should be Revised to Include Plasma Glass

CEA and CERC have been informed that the California Department of Toxic Substances Control 

(“DTSC”) recently evaluated plasma glass television and video display panels and

determined they may exhibit hazardous waste characteristics due to the presence of lead.

1

Because plasma glass is not regulated as a “universal waste,” it is not eligible for alternative 

management standards that apply to CRT glass. Although the data in the California DTSC

evaluation was based on 2004 models and, since that time, many companies have switched to

lead-free plasma display panels, the addition of plasma glass to the CRT rule would

encourage the recycling of plasma televisions and display panels.

Conclusion

CEA and CERC are concerned that the proposed rule will unfairly and improperly impose CRT 

export notification obligations and liabilities on intermediariesthat lack the knowledge, the

means, and the ability to fully discharge the CRT export notification requirements. CEA and

CERC urge EPA to better define the term “CRT exporter” so that the entities that possess the

direct knowledge and intent are held responsible for CRT export notification requirements.

CEA and CERC are also concerned that the proposed rule would establish new regulatory 

controls over CRT products that are intended for reuse. CEA and CERC urge EPA to maintain
28

the current one- time report for such products. CEA and CERC greatly appreciate this

opportunity to provide its members’ comments on the Agency’s proposed CRT rule. We look

forward to working with the EPA to address the industry’s concerns.

The Consumer Electronics Association (CEA) is a U.S. based trade association that represents

more than 2,000 companies involved in the design, development, manufacturing, distribution 

and integration of audio, video, in-vehicle electronics, wireless and landline communications, 

information technology, home networking, multimedia and accessory products, as well as

related services that are sold through consumer channels. CEA also sponsors and manages the

International CES – The Global Stage for Innovation – the largest annual trade event in the

U.S. (www.ce.org)

Contact: Walter Alcorn

Vice President, Environmental Affairs and Industry Sustainability

703-907-7765 

walcorn@ce.org

The Consumer Electronics Retailers Coalition (CERC) is a not-for-profit public policy 

organization that includes major specialist and general retailers of consumer electronics

products, and retailer associations. CERC was established in 1991 as an informal coalition and 

incorporated in 2003. CERC’s members include Amazon.com, Inc., Best Buy Co., Inc., 

RadioShack Corporation, Sears Holdings Corporation, Target Corporation, and Wal-Mart

Stores, Inc.

Contact:

Robert Schwartz

Legal Counsel

202-204-3508

RSchwartz@constantinecannon.com

EPA Response

In response to CEA and CERC’s comments in section (1) Proposed Definition of “CRT Exporter” 

Must Include an Actual Knowledge Component

EPA agrees with CEA and CERC that the Agency could better clarify the definition of CRT 

exporter. EPA has thus added further discussion and examples to the final rule to better explain 

the definition of CRT exporter. 

As noted previously, the trade of used electronics can take place along a chain of businesses that 

collect, refurbish, dismantle, recycle, and reprocess used electronic products and their 

components. When used CRTs are exported for recycling or reuse, there may be several persons 

involved from the time that a decision is made to export these materials up to the time that the 

actual export occurs. EPA has concluded that the language of the definition appropriately 

defines those entities who are responsible for fulfilling the exporter duties, including “any 
29

person... who initiates a transaction” to export used CRTs or “any intermediary...arranging for 

such export.” EPA does not agree that this would include entities that have no knowledge of the 

export since presumably these entities would neither be “initiating a transaction” or “arranging 

for such export.” 

EPA modeled today’s definition of “CRT exporter” on the definition of “primary exporter” of 

hazardous waste in § 262.51. Thus, EPA believes the reference to “any intermediary” is 

important to maintain consistent accountability throughout the RCRA export regulations.

As an example of how the definition would apply, a state may contract with a recycling facility to 

collect and recycle used electronics, including used CRTs. The recycling facility makes the 

decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also 

makes the decision whether to reuse or recycle the CRTs domestically or whether to export the 

used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling 

facility, are not involved in the decision-making to export certain CRTs and are not initiating a 

transaction to export, or arranging for export. Thus, these entities would not be considered a 

“CRT exporter” and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether 

and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the 

recycling facility is making the decision to export certain CRTs and is thus initiating a transaction 

to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the 

CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, 

both the recycling facility (which initiated the export) and the broker (who arranged for the 

export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has 

collected CRTs and is storing them on site. In this case, the electronic recycler determines how 

the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic 

recycler also initiates the transaction to export by partnering with a broker to find foreign 

entities that can reuse or recycle the CRTs abroad—that is, the broker acts as an intermediary 

and makes arrangements for the export of used CRTs by soliciting and evaluating bids from 

foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In 

addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing 

or receiving information from the broker and packaging and preparing the used CRTs for 

transport across international boundaries. Therefore, both the electronic recycler and the broker 

are CRT exporters. 

In response to CEA and CERC’s comments in section (2) Inclusion of Intermediaries in Proposed 

Definition of “CRT Exporter” Would Confuse Export Notification Obligations
30

EPA has concluded that the language of the definition appropriately defines those entities who 

are responsible for fulfilling the exporter duties, including “any person... who initiates a 

transaction” to export used CRTs or “any intermediary...arranging for such export.”

Additionally, EPA has added preamble discussion, including examples, to better clarify who 

would be considered a “CRT exporter” for purposes of the rulemaking (see above response to 

section 1) as an initiator or as an intermediary. 

EPA does not agree with CEA and CERC’s comment that the definition of “CRT exporter” may 

produce an unintended consequence of allowing entities that directly export used CRTs to shirk 

their export notification responsibilities since, under the proposal, other entities would be 

equally responsible. In fact, EPA believes the opposite is true. Because EPA considers all entities 

that meet the definition of CRT exporter to be held jointly and severally liable under RCRA if they 

fail to fulfill the notice condition, among other conditions, of the CRT rule, EPA believes this 

provides sufficient incentive for all involved parties to ensure the conditions of the CRT final rule 

are met. 

In response to CEA and CERC’s comments in section (3) Proposed Definition of “CRT Exporter” 

Would Improperly Impose “Joint and Several” Liability on All Intermediaries

As noted previously, the trade of used electronics can take place along a chain of businesses that 

collect, refurbish, dismantle, recycle, and reprocess used electronic products and their 

components. When used CRTs are exported for recycling or reuse, there may be several persons 

involved from the time that a decision is made to export these materials up to the time that the 

actual export occurs – all of whom could be a CRT exporter. EPA has concluded that the language 

of the definition appropriately defines those entities who are responsible for fulfilling the 

exporter duties, including “any person... who initiates a transaction” to export used CRTs or “any 

intermediary...arranging for such export.” 

EPA has added preamble discussion, including examples, to better clarify who would be 

considered a “CRT exporter” for purposes of the rulemaking (see above response to section 1). 

Additionally, EPA modeled today’s definition of “CRT exporter” on the definition of “primary 

exporter” of hazardous waste in § 262.51. Thus, EPA believes the reference to “any 

intermediary” is important to maintain consistent accountability throughout the RCRA export 

regulations.

In response to CEA and CERC’s comments in section (4) Proposed Rule Would Improperly 

Regulate CRTs that are Sent for Reuse as Solid Wastes

EPA disagrees with CEA and CERC’s comments that argued that the revisions to the notification 

for used CRTs exported for reuse exceed EPA’s authority under RCRA. In fact, EPA has concluded 

that our authority to request such information is inherent in our authority to determine whether 

a material is discarded. 
31

The Agency notes that used, intact CRTs exported for reuse can be identical in appearance to 

those exported for recycling. In addition, information in the record, both for this rulemaking and 

for the 2006 CRT rulemaking, shows that exported electronics for alleged reuse may not in fact 

be handled as valuable commodities in foreign countries.1Consequently, EPA has determined 

that the information required in today’s notification is necessary to help ensure that the used, 

intact CRTs are actually reused abroad, and are not recycled (or disposed).

We consider the specific information required in today’s notification to be the minimum 

information needed to enable credible evaluation of the status of hazardous secondary 

materials under section 3007 of RCRA and to ensure proper management of these materials. 

EPA further believes that RCRA section 3007 allows us to gather information about any material 

when we have reason to believe that it may be a solid waste and possibly a hazardous waste 

within the meaning of RCRA section 1004(5). Section 2002 also gives EPA authority to issue 

regulations necessary to carry out the purposes of RCRA. 

The intent of this notification is to provide basic information to EPA about who will be exporting 

used, intact CRTs for reuse. The specific information included in the notification will enable 

regulatory agencies to monitor compliance adequately and to ensure used, intact CRTs are 

reused and not discarded. The information will enable better reporting by EPA in response to 

information requests from receiving countries and other interested parties regarding exports of 

used, intact CRTs for reuse. This information will, in turn, enable effective compliance 

monitoring by EPA and in those countries which receive such CRTs for reuse, which decreases 

the risk of potential mismanagement of the materials.

Further, EPA does not agree that the revised notice for CRTs exported for reuse will discourage 

reuse and refurbishment because EPA considers the additional burden of completing the revised 

notice to be minimal. Moreover, EPA notes that the export notice for CRTs exported for reuse is 

not the same as the export notice for CRTs exported for recycling in that CRTs exported for 

recycling must obtain consent from the importing country. EPA agrees with CEA and CERC that 

ensuring used CRTs exported for reuse are managed properly when sent abroad requires 

effective engagement with importing countries. Thus, finalizing changes to the notice for used 

CRTs exported for reuse in order to collect more specific information, such as destination 

facilities, transit countries, and quantities of used CRTs, will enable EPA to better respond to 

requests for this information from foreign countries.

EPA acknowledges CEA and CERC’s recommendation that EPA work with stakeholders to 

determine criteria that the Agency could use to determine when used, intact CRTs resemble a 

“solid waste.” However, at this time, EPA believes the final rule appropriately defines conditions 

for used, intact CRTs that are exported for reuse.

 

1

“Exporting Harm-The High-Tech Trashing of Asia,” Basel Action Network and the Silicon Valley Toxics Coalition, 

February 25, 2002 (referenced by commenter on the 2002 CRT proposed rule);“Following the Trail of Toxic EWaste.” CBS 60 Minutes. November 9, 2008; Carroll Chris, “High-Tech Trash,” National Geographic Magazine. 

January 2008.
32

In response to CEA and CERC’s comments in section (5) CRT Should be Revised to Include Plasma 

Glass

EPA acknowledges CEA and CERC’s comment that stated EPA should add plasma glass to the CRT 

rule. Plasma glass, however, is outside the scope of the rulemaking.

In response to CEA and CERC’s comments in the Conclusion section.

EPA has added further discussion and examples to the preamble to better explain the definition 

of CRT exporter and thus EPA believes this will address CEA and CERC’s concerns that the 

proposed rule will impose CRT export duties onto intermediaries that do not fit the definition of 

CRT exporter.

EPA does not agree with maintaining the one-time notice for used CRTs exported for reuse. 

Currently, the notification for CRTs exported for reuse contains minimal information: name, 

address, and EPA ID (if applicable), the name and phone number of a contact person for the 

exporter, and a statement that the notifier plans to export used, intact CRTs for reuse. The 

current notification has been inadequate because it provides no information regarding where 

the used, intact CRTs are being exported for reuse, which hinders EPA’s ability to share 

information with the receiving country if there is an issue with the export, which, in turn, inhibits 

the receiving country’s ability to ensure safe management of the CRTs. Furthermore, the onetime nature of the notice provides no assurance that the information collected over time will 

accurately reflect entities that are exporting CRTs for reuse, which greatly hinders use of the 

data for compliance monitoring and reporting purposes.
33

Institute of Scrap Recycling Industries (ISRI)

Comment

May 14, 2012

The Institute of Scrap Recycling Industries, Inc. (“ISRI”) is pleased to submit these comments on 

EPA’s proposed Revision to the Export Provisions of the Cathode Ray Tube (CRT) Rule, 77 Fed. 

Reg. 15336 (Docket ID No. EPA–HQ–RCRA–2011–1014, March 15, 2012). ISRI represents more 

than 1,600 private, for-profit companies at more than 7,000 facilities throughout the United 

States that process, broker, and consume scrap commodities, including metals, paper, plastics, 

glass, rubber, electronics, and textiles. ISRI provides education, advocacy, and compliance 

training, and promotes public awareness of the value and importance of recycling to the 

production of the world’s goods and services. During 2011, the latest year with complete 

figures, the $100 billion U.S. scrap recycling industry directly employed more than 130,000 

people and processed more than 130 million metric tons of scrap materials bought and used by 

industrial consumers in the U.S. and in more than 160 countries worldwide, conserving 

impressive amounts of energy and natural resources and minimizing environmental emissions 

associated with production of the world’s goods and services.

I. Introduction

EPA’s proposal to impose additional requirements on used and functioning CRTs that are being 

exported for use is an unlawful effort to regulate products that have not been “discarded” and 

over which EPA has no RCRA jurisdiction. EPA proposes to regulate virtually every step of the 

movement of functional CRTs through international commerce, requiring documentation 

identifying the frequency of sales, all points of entry and departure around the globe through 

the entire chain of commerce, and the identity of the eventual user of the CRTs. Congress did 

not authorize EPA to use RCRA to so intrude into transactionsinvolving products.

II. EPA Does Not Have RCRA Jurisdiction Over Functioning CRTs Intended For Use

EPA’s RCRA jurisdiction is “limited to materialsthat are ‘discarded’ by virtue of being disposed of,

abandoned, or thrown away.” American Mining Congress v. EPA, 824 F.2d 1177, 1190 (D.C. Cir. 

1987) (“AMC 1”). The D.C. Circuit later struck down an EPA rule that attempted to impose storage

and other requirements on secondary materials destined for recycling, observing that the

material EPA was seeking to regulate was “destined for reuse as part of a continuous industrial

process and thus is not abandoned or thrown away’’. Association of American Battery

Recyclers v. EPA, 208 F.3d 1047, 1056 (D.C. Cir. 2000) (“ABR”). Here, EPA seeks to go beyond

what the courts have already rejected in these cases by extending its RCRA jurisdiction over fully

functioning products that are sold for reuse, that are not secondary materials, and have not been

“discarded, abandoned or thrown away.”
34

EPA’s proposal to impose regulatory burdens on exporters of useful products (in this case, CRTs)

is a reprise of EPA’s failed effort in ABR to impose a “conditional exclusion” on materials over

which it does not have jurisdiction. Before EPA can impose RCRA requirements, it must first

establish that it has jurisdiction over materialsit intendsto regulate. That is, EPA must first 

establish that the CRTs that it intends to regulate have been “discarded.” Only then can EPA 

exercise RCRA jurisdiction over them.

Selling functioning products for use, whether new or used, is not the “discard” of “waste” over 

which EPA exercises RCRA jurisdiction. Selling a used car to the next user is not a “discard,” nor is

selling a used CRT. Indeed, the Federal Interagency Task Force on Electronics Stewardship, cochaired by EPA, the Council on Environmental Quality and the General Services Administration, 

observed that “electronic devices sent for reuse for their original purpose (i.e., electronics sold

or donated to be used again) are not ’waste’ governed by RCRA.” National Strategy for

Electronics Stewardship (July 20, 2011) at p. 6.EPA itself has represented to courts that it does

not have RCRA jurisdiction over products. Cordiano v. Metacon, 575 F.3d 199, 207 (2d Cir. 2009) 

(the U.S. filed an amicus in this case, which held that firing ammunition was not the “discard” of

lead shot, stating “EPA has repeatedly stated that its regulatory jurisdiction under RCRA does not 

apply to products that are applied to the land in the ordinary manner of use, because such

products are being used, not ‘abandoned.’”). Similarly, courts have held that the “sale of a

useful product does not constitute the ‘handling, storage, treatment, transportation or disposal

of any solid waste or hazardous waste.’” U.S. v. Union Corp., 277 F. Supp. 2d 478, 491 ((E.D. Pa.

2003) (citations omitted).

Since EPA does not have RCRA jurisdiction over the sale of useful products, it does not have 

RCRA jurisdiction over the sale of fully functioning used CRTs that are sold for reuse. Indeed, EPA

is not proposing here to regulate, for example, the sale of used and functioning CRTs from stores

in the U.S. The fact that a sale involves export does not transform it into a “discard”: nothing

in the definition of solid or hazardous waste suggests that the act of exporting is an attribute

of “discarding,” or that all used goods that are exported are being “discarded” should be

presumed to be wastes unless demonstrated otherwise (and even then, under this proposal, 

remain under EPA’s RCRA jurisdiction).

EPA attempts to justify this proposal on the grounds that it has become “aware that some CRTs 

allegedly exported for reuse are actually recycled in the receiving country, sometimes under 

unsafe conditions,” and that the proposed regulations would “greatly improve tracking, and 

thus better management, of these CRTs that are claimed to be exported for reuse.” 77 Fed. Reg.

at 15339. If EPA is aware of entities that are violating existing regulations, it should enforce the 

regulations against those entities. Imposing additional regulations on the companies that comply

with the law will not deter or catch the “bad actors.” More fundamentally, EPA’s justification

reflects a misunderstanding of the Agency’s RCRA jurisdiction. EPA does not have RCRA

jurisdiction to regulate the movement in commerce of functioning products in order to enhance

the management of such products. Nor does RCRA confer on EPA the authority to regulate

functioning products before they are “discarded,” on the ground that it is possible that such
35

products might be “discarded” in the future. EPA’s RCRA jurisdiction begins at the point of

“discard” and not before.

Under EPA’s theory of “anticipatory discard,” it would have the authority under RCRA to regulate

and track transactions involving fully functioning cars, appliances or any other products (used or

new) on the grounds that EPA has evidence that such products can be found abandoned on the

roadside, and that regulations are necessary to “greatly improve tracking, and thus better

management,” of these products so that they will not eventually be mismanaged. EPA’s expansive

view of its RCRA jurisdiction over functioning CRTs is reflected in this statement in the 2006 CRT

rule:

We believe that our right to require such basic notification is inherent in our authority to regulate

discarded materials, and in our RCRA section 3007 authority to obtain information pertaining to

materials that may become solid or hazardous wastes.

71 Fed. Reg. 42928, 42939 (July 28, 2006) (emphasis added). EPA is suggesting that “inherent” in 

its RCRA authority to regulate “discarded” materials is the authority to regulate functional 

products that are not yet “discarded.” This theory completely erases any distinction between 

materials that are and are not “discarded,” and conflicts with the statute and case law. Further, 

EPA mischaracterizesits RCRA Section 3007 authority, which providesthat:

For purposes of developing or assisting in the development of any regulation or enforcing the

provisions of this title, any person who generates, stores, treats, transports, disposes of, or

otherwise handles or has handled hazardous wastes shall, upon request of any officer, employee

or representative of the

Environmental Protection Agency, duly designated by the Administrator, or upon request of

any duly designated officer, employee or representative of a State having an authorized 

hazardous waste program, furnish information relating to such wastes and permit such person at

all reasonable times to have access to, and to copy all records relating to such wastes.

RCRA § 3007(a) (emphasis added). Thus, section 3007 authorizes EPA to seek information 

about “such wastes” (i.e., “hazardous wastes”) and does not extend EPA’s RCRA regulatory 

authority to all materials or products that may, at some point in the future, become a waste. 

The rationale proposed in this rule could be applied to justify the regulation under RCRA of the 

sale of fully functional products between a seller in Kansas and a buyer in Michigan. EPA does not

have RCRA jurisdiction over functioning products just because it is possible that at some point in

their life cycle, such products may be “discarded.”

Thus, EPA is attempting to establish by regulation what Congress and the courts have not 

allowed: a presumption that all materials, including fully functioning products, have been 

“discarded” and can be subjected to RCRA regulations. Turning RCRA on its head, EPA’s starting

point appears to be that it has RCRA jurisdiction over everything that might eventually be

discarded on the grounds that this is necessary to ensure proper waste management. Under this
36

theory, the Agency would not have to prove that CRTs are “discarded” in order to assert its RCRA

jurisdiction. To the contrary, placing fully functional CRTs in commerce, according to EPA,

subjects them to RCRA, and companies would have to verify that the CRTs are indeed useful

(and even then EPA would still retain its RCRA jurisdiction). This effort by EPA to extend its

RCRA jurisdiction over functional products before they are “discarded” is contrary to law.

III. The Proposed Notification Requirements Are Too Burdensome

Even if EPA had RCRA jurisdiction over the export of fully functioning used CRTs intended for 

reuse, elements of the proposed notification are overly burdensome. In particular, EPA proposes

that the notification include the following information:

All points of entry and departure to and departure from each transit country through which the

CRTs will pass, a description of the approximate length of time the CRTs will remain in such

country and the nature of their handling while there.

51 Fed. Reg. at 15343. The exporter might not know, and may not have control concerning, each 

transit country through which the CRTs might pass. The details of how the CRTs will be 

transported, including length of time spent in any particular country of transit, may vary 

during the transportation process itself, and may be under the control of the transporter, not the 

exporter. EPA also seeks the “name and address of the ultimate destination facility or facilities 

where the CRTs will be reused and the estimated quantity of CRTs to be sent to each facility.” Id.

This presumes that the destination facility of the shipment is the location where the functioning

CRTs will be used. However, the destination facility might be a distribution or sales entity 

which sells the CRTs into the local market, but does not actually use them. In these cases, it

should be sufficient to identify such entities, since it is not practical for the exporter to identify all

of the potential customers who might purchase and use the CRTs.

IV. Conclusion

ISRI believes that EPA does not have the jurisdiction, under RCRA, to impose requirements on fully

functioning used products, including CRTs, that are being exported and sold for reuse. EPA’s

RCRA jurisdiction begins at the time of “discard” and not before. Congress did not, when it

enacted RCRA, grant EPA general authority to regulate transactions in the markets for used goods.

In closing, ISRI appreciates this opportunity to comment on EPA’s proposed Revision to the

Export Provisions of the Cathode Ray Tube (CRT) Rule (Docket ID No. EPA–HQ–RCRA–2011–

1014) and thanks EPA for its consideration of these comments. If there are any questions, I can be

reached at 202-662-8533 or DavidWagger@isri.org.

Sincerely,
37

David L. Wagger, Ph.D.

Director of Environmental Management

Institute of Scrap Recycling Industries, Inc.

1615 L Street, NW, Suite 600

Washington, DC 20036-5610

TEL: 202-662-8533

FAX: 202-626-0933

e-mail: DavidWagger@isri.org

EPA Response

In response to ISRI’s comments in section (I) Introduction, section (II) EPA Does Not Have RCRA 

Jurisdiction Over Functioning CRTs Intended for Reuse, and section (IV) Conclusion

EPA disagrees with ISRI’s comments that argued that the revisions to the notification for used 

CRTs exported for reuse exceed EPA’s authority under RCRA. In fact, EPA has concluded that our 

authority to request such information is inherent in our authority to determine whether a 

material is discarded. 

The Agency notes that used, intact CRTs exported for reuse can be identical in appearance to 

those exported for recycling. In addition, information in the record, both for this rulemaking and 

for the 2006 CRT rulemaking, shows that exported electronics for alleged reuse may not in fact 

be handled as valuable commodities in foreign countries.2Consequently, EPA has determined 

that the information required in today’s notification is necessary to help ensure that the used, 

intact CRTs are actually reused abroad, and are not recycled (or disposed).

We consider the specific information required in today’s notification to be the minimum 

information needed to enable credible evaluation of the status of hazardous secondary 

materials under section 3007 of RCRA and to ensure proper management of these materials. 

EPA further believes that RCRA section 3007 allows us to gather information about any material 

when we have reason to believe that it may be a solid waste and possibly a hazardous waste 

within the meaning of RCRA section 1004(5). Section 2002 also gives EPA authority to issue 

regulations necessary to carry out the purposes of RCRA. 

The intent of this notification is to provide basic information to EPA about who will be exporting 

used, intact CRTs for reuse. The specific information included in the notification will enable 

 

2

“Exporting Harm-The High-Tech Trashing of Asia,” Basel Action Network and the Silicon Valley Toxics Coalition, 

February 25, 2002 (referenced by commenter on the 2002 CRT proposed rule);“Following the Trail of Toxic EWaste.” CBS 60 Minutes. November 9, 2008; Carroll Chris, “High-Tech Trash,” National Geographic Magazine. 

January 2008.
38

regulatory agencies to monitor compliance adequately and to ensure used, intact CRTs are 

reused and not discarded. The information will enable better reporting by EPA in response to 

information requests from receiving countries and other interested parties regarding exports of 

used, intact CRTs for reuse. This information will, in turn, enable effective compliance 

monitoring by EPA and in those countries which receive such CRTs for reuse, which decreases 

the risk of potential mismanagement of the materials.

In response to ISRI’s comments in section (III) The Proposed Notification Requirements Are Too 

Burdensome

Regarding the comment on transit countries, EPA understands that some uncertainty is inherent 

in a notification that estimates used, intact CRTs exported for reuse over a 12-month or lesser 

period. Though the CRT exporter may not know exact information about transportation activities 

that have yet to occur, including the time spent in each transit country, the Agency believes it is 

important that the CRT exporter provide this information to the best of its ability, in an effort to 

give the transit country (and EPA) information regarding such shipments. The Agency expects 

that the CRT exporter would have at least general knowledge with regard to anticipated 

shipment and arrival dates which would allow the exporter to estimate such information. 

However, CRT exporters can work with transporters to compile such information and develop 

reasonable estimates needed to complete the notification.

Regarding the ultimate destination facility, EPA agrees with ISRI that it is not practical for the 

exporter to identify all of the potential customers who might purchase and reuse the CRTs and, 

in fact, EPA is not looking for the CRT exporter to identify all potential customers in the export 

notification. Rather, when requiring the “ultimate destination facility or facilities where the CRTs 

will be reused,” EPA means for CRT exporters to identify the facility or facilities that will be 

refurbishing the CRTs or receiving the CRTs to be distributed or sold for reuse. To clarify this 

issue, EPA has modified the language of the requirement to require “the name and address of 

the ultimate destination facility or facilities where the CRTs will be reused, refurbished,

distributed or sold for reuse....”
39

Tennessee	Valley	Authority	(TVA)

Comment

May 3, 2012

The Tennessee Valley Authority (TVA) appreciatesthe opportunity afforded by the U.S. environmental

Protection Agency (EPA) to review and comment on the proposed rule forthe "Revision to the Export

Provisions of the Cathode Ray Tube (CRT) Rule" published In the Federal Register on March 15, 2012. As

the nation's largest public power provider with stewardship responsibilities for land and water resources

under the TVA Act,TVA supports the promulgation of rules and regulations that both minimize adverse

environmental Impact associated with the management of recyclables as well as waste, and provide for a

reliable and affordable supply of electric power for our customersin the Valley.

Although TVA does not have any policy issues with the proposed rule, we are requesting minor editorial

changes to provide clarity. In section §260.10, the definition of "CRT exporter' is not clear. As written,the

words "any person in the United States who initiates a transaction to send used CRTs outside the United States

territories" could be interpreted to include generators and others who have no involvement with either the

decision to export or the arrangements for export. TVA suggests that the definition be revised to make

clear that generators and others involved In the collection process do not become a CRT exporter unless

they either make the decision to export or participate In making the arrangementsfor export.

We believe this clarification would be consistent with EPA's intended purpose forthe rule and eliminate a

possible source of confusion. Clarification of this point is especially Important given EPA's stated intention to

hold all partiesjointly and severally liable for falling to comply with the exporter requirements.

TVA would like to thank EPA in advance for the consideration of the enclosed comments related to the 

Information in the docket supporting this Notice, EPA-HQ-RCRA-2011-1014. If you have questions please

contact me at the above address.

John W.Myers,Director

EnvironmentalPolicy and Regulatory Affairs

EPA	Response

EPA agrees with TVA that the Agency could better clarify the definition of CRT exporter. EPA has 

thus added further discussion and examples to the final rule to better explain the definition of 

CRT exporter.

As noted previously, the trade of used electronics can take place along a chain of businesses that 

collect, refurbish, dismantle, recycle, and reprocess used electronic products and their 

components. When used CRTs are exported for recycling or reuse, there may be several persons 

involved from the time that a decision is made to export these materials up to the time that the 

actual export occurs. EPA has concluded that the language of the definition appropriately 
40

defines those entities who are responsible for fulfilling the exporter duties, including “any 

person... who initiates a transaction” to export used CRTs or “any intermediary...arranging for 

such export.” EPA does not agree that this would include entities that have no knowledge of the 

export since presumably these entities would neither be “initiating a transaction” or “arranging 

for such export.” 

As an example of how the definition would apply, a state may contract with a recycling facility to 

collect and recycle used electronics, including used CRTs. The recycling facility makes the 

decision regarding which CRTs can be reused, refurbished, or recycled. The recycling facility also 

makes the decision whether to reuse or recycle the CRTs domestically or whether to export the 

used CRTs, sometimes through a broker. 

In this case, the generators of the CRTs, as well as the state that contracted with the recycling 

facility, are not involved in the decision-making to export certain CRTs and are not initiating a 

transaction to export, or arranging for export. Thus, these entities would not be considered a 

“CRT exporter” and are not responsible for fulfilling the CRT exporter duties. 

On the other hand, because the recycling facility is making the determination regarding whether 

and which CRTs will be reused, refurbished, or recycled domestically or internationally, then the 

recycling facility is making the decision to export certain CRTs and is thus initiating a transaction 

to export. Therefore, the recycling facility is considered a CRT exporter and is responsible for the 

CRT exporter duties. Furthermore, if the recycling facility used a broker to manage the export, 

both the recycling facility (which initiated the export) and the broker (who arranged for the 

export) would be considered a CRT exporter and thus responsible for the CRT exporter duties. 

Another example of how the definition would apply includes an electronic recycler that has 

collected CRTs and is storing them on site. In this case, the electronic recycler determines how 

the CRTs will ultimately be managed, either via reuse, recycling, or disposal. The electronic 

recycler also initiates the transaction to export by partnering with a broker to find foreign 

entities that can reuse or recycle the CRTs abroad—that is, the broker acts as an intermediary

and makes arrangements for the export of used CRTs by soliciting and evaluating bids from 

foreign entities and other handling of arrangements (e.g., contracts) with foreign entities. In 

addition, the electronic recycler makes arrangements for the export of used CRTs by reviewing 

or receiving information from the broker and packaging and preparing the used CRTs for 

transport across international boundaries. Therefore, both the electronic recycler and the broker 

are CRT exporters.
41

Waste	Management (WM)

Comment

May 29, 2012

Waste Management (WM) is pleased to submit our comments to the proposed CRT Rule 

Changes as proposed.

Waste Management is North America’s leading provider of integrated environmental solutions.

We partner with our customers and communities to manage and reduce waste from collection to 

disposal while recovering valuable resources and creating clean, renewable energy. WM uses 

waste to create enough energy to power more than a million homes every year through our more 

than 120 landfill-gas- to-energy projects and our 17 waste-to-energy plants. As North America’s 

largest recycler, Waste Management recycled or reused more than 12.9 million tons of recyclable 

commodities last year. In its expanding role as a materials management company, WM is 

working to extract the highest value from the resources we manage including food and green 

wastes in municipal solid waste (MSW). Through WM Recycle America eCycling Services, we are 

recognized as a leader in e-waste recycling. We have seven processing plants strategically placed 

around the country (Denver, CO; Austin, TX; Mira Loma, CA; Tigard, OR; Milwaukee, WI; 

Minneapolis, MN; and Springfield, MA) and collect e-waste from over 265 collection depots. See 

our 2011 Sustainability Report Update (http://www.wm.com/sustainability/index.jsp) for more 

details.

WM offers the following in response to the proposed rules by section:

1. Definition of “CRT Exporter.”

The federal government is proposing to add the definition of “CRT Exporter” to 40 CFR 260.10.

The new definition states “that a CRT Exporter is any person in the United States who initiates 

a transaction to send used CRTs outside the US or its territories for recycling or reuse, or any 

intermediary in the US arranging for such export.” This definition is modeled on the definition 

of “primary exporter” of hazardous waste in 40 CFR 260.10. As such, Waste Management is 

not opposed to this addition.

2. Proposed changes to the Notification Required for Used CRTs Sent for Recycling.
The federal government is proposing to add a requirement (40 CFR 261.399(a)(5)(x)) to require

annual reports from exporters of used CRTs sent for recycling. Under the proposed rule, the 

exporter must provide, no later than March 1 of each year, a report summarizing the quantities 

(in kilograms), frequency of shipment, and ultimate destination(s) of all CRTs exported for 

recycling during the previous calendar year. EPA seeks info whether the information requested 

is enough to determine the actual quantity of CRTs that are exported in a given year.

In addition, EPA is proposes an additional change to the notice requirement for CRTs exported 

for recycling. The current notice (40 CFR 261.39(a)(5)(i)(F)) requires the exporter to state the 

name and address of the recycler and alternate recycler. A change in language is requested 

to state the name and address of the recycler or recyclers and the estimated quantities sent 

to each facility as well as the alternate recycler.

WM currently provides advance notice to EPA on exports of CRTs for recycling and we have a 

robust system for tracking our shipments we, therefore are not opposed to this change.

However, we ask EPA to consider an alternate workflow or streamlined reporting mechanism 

for companies that are certified under both R2 and e-Stewards. Such a streamlined reporting 

mechanism could provide an incentive to become a certified recycler.

3. Proposed changes to the Notification Required for Used, Intact CRTs Exported for Reuse.

WM supports these changes as well, but would also ask EPA to again consider a 

streamlined mechanism for companies that are R2 and e-Stewards certified.

4. Bare CRTs.

EPA solicits comments on whether “bare” CRTs removed from the plastic housing whose 

vacuum has not been released are likely to be exported for recycling rather than reuse and 

whether the regulation needs to be modified to reflect this situation. Given the state of CRT 

glass recycling today and the prospects for the future, any proposed rule changes should be 

flexible enough to allow for a recycler to determine the end use the “bare” CRT and not be 

bound by one or the other.

Lastly, WM recommends EPA consider working with industry on alternative treatment rules for

CRTs and flat screen monitors. This is extremely important given the state of CRT glass and

monitor glass reuse and recycling around the world today.

We would be pleased to discuss our responses in further detail. If you have any questions

please contact me at 713-328-7003. 

Sincerely,

Richard Abramowitz 

Director of Public 
43

Affairs Waste 

Management

713-328-7003

214-616-2371(c)

EPA	Response

In response to WM’s comments in section (1) Definition of “CRT Exporter” 

EPA agrees with WM’s comments that did not oppose codifying the definition of “CRT 

Exporter.” Therefore, EPA has included the definition in the final rule.

In response to WM’s comments in section (2) Proposed changes to the Notification Required for 

Used CRTs Sent for Recycling

EPA agrees with WM’s comments that did not oppose the proposed changes to the notice for 

used CRTs exported for recycling. Therefore, EPA has finalized these revisions in the final rule. 

EPA acknowledges WM’s comments that EPA consider a streamlined reporting mechanism for 

companies that are certified under both R2 and e-Stewards. However, this consideration is 

outside the scope of this specific rulemaking.

In response to WM’s comments in section (3) Proposed changes to the Notification Required for 

Used, Intact CRTs Exported for Reuse

EPA agrees with WM’s comments that did not oppose the proposed changes to the notice for 

used CRTs exported for reuse. Therefore, EPA has finalized these revisions in the final rule. 

EPA acknowledges WM’s comments that EPA consider a streamlined reporting mechanism for 

companies that are certified under both R2 and e-Stewards. However, this consideration is 

outside the scope of this specific rulemaking.

In response to WM’s comments in section (4) Bare CRTs

EPA is not making any regulatory changes pertaining to the issue of “bare” CRTs. Upon further 

consideration, EPA continues to believe that “bare” CRTs (meaning intact CRTs that are 

removed from the monitor while the vacuum is still intact) are more product-like than wastelike, that is, bare CRTs more closely resemble functional CRTs as opposed to broken CRTs or 

CRTs that must be recycled. Therefore, if “bare” CRTs are exported for reuse, they would not be 

considered subject to the export conditions of § 261.39(a)(5) (export provisions for CRTs 

exported for recycling), but rather would be subject to the export requirements of § 261.41 

(export provisions for CRTs exported for reuse).
44

EPA acknowledges WM’s recommendation that EPA consider working with industry on 

alternative treatment rules for CRTs and flat screen monitors. However, this recommendation is 

outside the scope of this specific rulemaking.