[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58388-58416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22536]



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Part V





Environmental Protection Agency





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40 CFR Parts 262, 264, et al.



 Revisions to: The Requirements for Transboundary Shipments of Wastes 
Between OECD Countries, the Requirements for Export Shipments of Spent 
Lead-Acid Batteries, the Requirements on Submitting Exception Reports 
for Export Shipments of Hazardous Wastes, and the Requirements for 
Imports of Hazardous Wastes; Proposed Rule

Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / 
Proposed Rules

[[Page 58388]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 262, 264, 265, 266, and 271

[EPA-HQ-RCRA-2005-0018; FRL-8720-3]
RIN 2050-AE93


Revisions to: The Requirements for Transboundary Shipments of 
Wastes Between OECD Countries, the Requirements for Export Shipments of 
Spent Lead-Acid Batteries, the Requirements on Submitting Exception 
Reports for Export Shipments of Hazardous Wastes, and the Requirements 
for Imports of Hazardous Wastes

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend certain existing regulations 
promulgated under the hazardous waste provisions of the Resource 
Conservation and Recovery Act (RCRA) regarding the export and import of 
hazardous wastes from and into the United States. Specifically, we are 
proposing to modify: The requirements to implement the OECD framework 
concerning the transboundary movement of hazardous waste among 
countries belonging to the Organization for Economic Cooperation and 
Development (OECD), including reducing the number of control levels, 
exempting qualifying shipments sent for laboratory analyses from 
certain paperwork requirements, requiring recovery facilities to submit 
a certificate of recovery, adding provisions for the return or re-
export of wastes subject to the Amber control procedures, and 
clarifying certain existing provisions that were identified as 
potentially ambiguous to the regulated community; the regulations 
regarding the management of spent lead-acid batteries being reclaimed 
to require appropriate notice and consent for those batteries intended 
for reclamation in a foreign country; the exception reporting 
requirements for hazardous waste exports to specify that all exception 
reports submitted to EPA be sent to the Office of Enforcement and 
Compliance Assurance's Office of Federal Activities in Washington, DC 
rather than to the Administrator; and the hazardous waste import 
requirements such that U.S. importers would give the initial 
transporter a copy of the EPA-provided documentation confirming EPA's 
consent to the import when they provide the RCRA hazardous waste 
manifest, and that the documentation would be submitted by the U.S. 
receiving facility to EPA along with the RCRA hazardous waste manifest 
within thirty days of import shipment delivery. Finally, separate from 
this proposed rule, EPA is publishing in http://www.epa.gov/epawaste/hazard/international/oecd-slab-rule.htm a draft guidance document on 
how U.S. receiving facilities may request EPA to identify them as pre-
approved facilities to receive hazardous waste from OECD Member 
countries.

DATES: Comments must be received on or before December 5, 2008. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions must be received by OMB on or before November 5, 2008.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0018, by one of the following methods:
    <bullet> http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#b4c6d7c6d599d0dbd7dfd1c0f4d1c4d59ad3dbc2"><span class="__cf_email__" data-cfemail="b1c3d2c3d09cd5ded2dad4c5f1d4c1d09fd6dec7">[email protected]</span></a>, Attention Docket No. EPA-HQ-
RCRA-2005-0018.
    <bullet> Fax: (202) 566-9744, Attention Docket No. EPA-HQ-RCRA-
2005-0018.
    <bullet> Mail: RCRA Docket No. EPA-HQ-RCRA-2005-0018, Environmental 
Protection Agency, Mail Code: 2822T, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460. Please include a total of 2 copies. In addition, 
please mail a copy of your comments on the information collection 
provisions to the Office of Information and Regulatory Affairs, Office 
of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th 
St. NW., Washington, DC 20503.
    <bullet> Hand Delivery: RCRA Docket No. EPA-HQ-RCRA-2005-0018, EPA 
West Building, Room 3334, 1301 Constitution Ave., NW., Washington DC 
20004. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2005-0018. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744 and the telephone number for the 
RCRA Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Laura Coughlan, Hazardous Waste 
Identification Division, Office of Solid Waste (5304P), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; 
telephone number: (703) 308-0005; fax number: (703) 308-0514; e-mail: 
<a href="/cdn-cgi/l/email-protection#16757963717e7a7778387a776364775673667738717960"><span class="__cf_email__" data-cfemail="187b776d7f707479763674796d6a79587d6879367f776e">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. General Information
    A. List of Acronyms Used in This Proposed Rule
    B. What are the statutory authorities for this proposed rule?
    C. Does this proposed rule apply to me?
    D. What is the purpose of this proposed rule?

[[Page 58389]]

II. Background
    A. OECD Revisions
    B. SLAB Revisions
    C. Exception Report Revisions for Exports Under Subparts E and H 
of 40 CFR Part 262
    D. Import Revisions
III. Summary of This Proposed Rule and Changes
    A. Changes to 40 CFR Part 262, Subpart E
    B. Changes to 40 CFR 262.60(e), Subpart F
    C. Changes to 40 CFR Part 262, Subpart H
    D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)
    E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)
    F. Changes to 40 CFR 266.80(a)
    G. Changes to 40 CFR 271.1
IV. Costs and Benefits of the Proposed Rule
    A. Introduction
    B. Analytical Scope
    C. Cost Impacts
    D. Benefits
V. State Authorization
    A. Applicability of Rules in Authorized States
    B. Effect on State Authorization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. List of Acronyms Used in This Proposed Rule

------------------------------------------------------------------------
              Acronym                              Meaning
------------------------------------------------------------------------
BCI...............................  Battery Council International
CBI...............................  Confidential Business Information
CERCLA............................  Comprehensive Environmental
                                     Response, Compensation, and
                                     Liability Act
CFR...............................  Code of Federal Regulations
EPA...............................  U.S. Environmental Protection Agency
FR................................  Federal Register
HSWA..............................  Hazardous and Solid Waste Amendments
LAB...............................  Lead-Acid Battery
NAICS.............................  North American Industrial
                                     Classification System
NTTAA.............................  National Technology Transfer and
                                     Advancement Act
NAFTA.............................  North American Free Trade Agreement
OECD..............................  Organization for Economic
                                     Cooperation and Development
OMB...............................  Office of Management and Budget
OSWER.............................  Office of Solid Waste and Emergency
                                     Response
RCRA..............................  Resource Conservation and Recovery
                                     Act
RFA...............................  Regulatory Flexibility Act
SIC...............................  Standard Industrial Classification
SLAB..............................  Spent Lead-Acid Battery
SBREFA............................  Small Business Regulatory
                                     Enforcement Fairness Act
TRI...............................  Toxics Release Inventory
UMRA..............................  Unfunded Mandates Reform Act
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B. What are the statutory authorities for this proposed rule?

    The authority to propose this rule is found in sections 1006, 1007, 
2002(a), 3001-3010, 3013-3015, and 3017 of the Solid Waste Disposal 
Act, as amended by the Resource Conservation and Recovery Act (RCRA), 
and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 
6905, 6906, 6912, 6921-6930, 6934-6936, and 6938.

C. Does this proposed rule apply to me?

1. OECD Revisions
    The OECD revisions in this proposed rule affect all persons who 
export or import hazardous waste, export or import universal waste, or 
export spent lead-acid batteries (SLABs) destined for recovery 
operations in countries belonging to the Organization for Economic 
Cooperation and Development (OECD), except for Mexico and Canada. Any 
transboundary movement of hazardous wastes between the United States 
and either Mexico or Canada will continue to be regulated by their 
respective bilateral agreements and applicable regulations. Potentially 
affected entities may include, but are not limited to:

------------------------------------------------------------------------
                Industry sector                    NAICS         SIC
------------------------------------------------------------------------
Utilities.....................................       221100         4939
Petroleum and Coal Products Manufacturing.....          324           29
Chemical Manufacturing........................       325100           28
Primary Metal Manufacturing...................          331           33
Fabricated Metal Product Manufacturing........          332           34
Machinery Manufacturing.......................          333           35
Computer and Electronic Product Manufacturing.       334110          357
Electrical Equipment, Appliance, and Component          335           36
 Manufacturing................................
Transportation Equipment Manufacturing........          336           37
Miscellaneous Manufacturing...................       339900           39
Scrap and Waste Materials.....................       423930         5093
Materials Recovery Facilities.................       562920         4953
------------------------------------------------------------------------

2. SLAB Revisions
    The SLAB revisions in this proposed rule affect all persons who 
export SLABs for reclamation in any foreign country. Potentially 
affected entities may include, but are not limited to:

------------------------------------------------------------------------
                Industry sector                    NAICS         SIC
------------------------------------------------------------------------
Hazardous Waste Collectors....................       562112         4212
Recyclable Material Hauling, Long-Distance....       484230         4213
Batteries, automotive, merchant wholesalers...       423120         5013
Lead-acid storage batteries, manufacturing....       335911         3691
Automotive Parts, Accessories, and Tire Stores       441310         5013
Tire Dealers..................................       441320         5014
All other General Merchandise Stores..........       452990         5399
New Car Dealers...............................       441110         5511

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Recyclable Material Wholesaler................       423930         5093
Other Waste Collection........................       562119         4212
Recyclable Material Collection Services, Solid       562111         4212
 Waste Collection.............................
Marinas.......................................       713930         4493
General Freight Trucking, Long-Distance, TL...       484121         4213
General Freight Trucking, Long-Distance, LTL..       484122         4213
Specialized Freight Trucking..................       484200         4213
Freight Carriers (except air couriers), Air          481112         4512
 Scheduled....................................
Freight Charter Services, Air.................       481212         4522
Freight Railways, Line-Haul...................       482111         4011
Freight Transportation, Deep Sea, to and from        483113         4424
 Domestic Ports...............................
Freight Transportation, Deep Sea, to or from         483111         4412
 Foreign Ports................................
------------------------------------------------------------------------

3. Exception Report Revisions for Exports Under Subparts E and H of 40 
CFR Part 262
    The exception report change to 40 CFR part 262, subpart E and 
subpart H of this proposed rule affect all persons who export hazardous 
waste, universal waste, or SLABs to any foreign country. Potentially 
affected entities may include, but are not limited to:

------------------------------------------------------------------------
                Industry sector                    NAICS         SIC
------------------------------------------------------------------------
Utilities.....................................       221100         4939
Petroleum and Coal Products Manufacturing.....          324           29
Chemical Manufacturing........................       325100           28
Primary Metal Manufacturing...................          331           33
Fabricated Metal Product Manufacturing........          332           34
Machinery Manufacturing.......................          333           35
Computer and Electronic Product Manufacturing.       334110          357
Electrical Equipment, Appliance, and Component          335           36
 Manufacturing................................
Transportation Equipment Manufacturing........          336           37
Miscellaneous Manufacturing...................          339           39
Scrap and Waste Materials.....................       423930         5093
------------------------------------------------------------------------

4. Import Revisions
    The import revisions in this proposed rule affect all persons 
importing hazardous waste from a foreign country that must comply with 
40 CFR part 262, subpart F, and all facilities receiving imported 
hazardous waste from a foreign country that must comply with either 
264.71(a)(3) or 265.71(a)(3). This includes those hazardous waste 
import shipments originating in OECD countries, as well as in non-OECD 
countries. Potentially affected entities may include, but are not 
limited to:

------------------------------------------------------------------------
                Industry sector                    NAICS         SIC
------------------------------------------------------------------------
Hazardous Waste Collectors....................       562112         4212
Recyclable Material Hauling, Long-Distance....       484230         4213
Recyclable Material Wholesaler................       423930         5093
Other Waste Collection........................       562119         4212
Recyclable Material Collection Services, Solid       562111         4212
 Waste Collection.............................
General Freight Trucking, Long-Distance, TL...       484121         4213
Scrap and Waste Materials.....................       423930         5093
Materials Recovery Facilities.................       562920         4953
------------------------------------------------------------------------

    The lists of potentially affected entities in the above tables may 
not be exhaustive. The Agency's aim is to provide a guide for readers 
regarding those entities that potentially could be affected by this 
action. However, this action may affect other entities not listed in 
these tables. If you have questions regarding the applicability of this 
proposed rule to a particular entity, consult the person listed in the 
preceding section entitled FOR FURTHER INFORMATION CONTACT.

D. What is the purpose of this proposed rule?

1. OECD Revisions
    This proposed rule is intended to implement the OECD's ``Decision 
of the Council C(2001)107/FINAL, Concerning the Control of 
Transboundary Movements of Wastes Destined for Recovery Operations, as 
amended by C(2004)20'' (hereinafter referred to as the Amended 2001 
OECD Decision), which amended the OECD Decision (1992) on the same 
subject. The purpose of these revisions was to encourage consistency 
and harmonization between the OECD and the Basel Convention,\1\ which 
in turn, promotes economic

[[Page 58391]]

efficiency and the recovery of waste in an environmentally sound 
manner.
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    \1\ The Basel Convention on the Control of Transboundary 
Movements of Hazardous Wastes and their Disposal is a comprehensive 
global environmental agreement on hazardous and other wastes. The 
Convention has 170 Member countries, also known as Parties, and aims 
to protect human health and the environment against the adverse 
effects resulting from the generation, management, transboundary 
movements and disposal of hazardous and other wastes. More 
information on the Basel Convention may be found at http://www.basel.int.
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    The Amended 2001 OECD Decision was supported by the United States 
and imposes legally binding commitments on the United States pursuant 
to Articles 5(a) and 6 of the OECD Convention. By consenting to the 
Decision, the United States Government has agreed to promulgate 
regulations necessary to ensure that the United States can uphold the 
agreement.
    Further, this proposed rule clarifies certain regulations to 
articulate more explicitly EPA's original intent in those regulations 
and to eliminate any confusion on the part of the regulated community.
2. SLAB Revisions
    EPA also proposes to amend the RCRA hazardous waste regulations for 
SLABs specified in 40 CFR part 266, subpart G by requiring notification 
and consent for the export of SLABs in order to ensure that SLABs are 
sent to reclamation facilities in countries that can manage them in an 
environmentally sound manner. The notification and consent requirements 
are intended to: (1) Reduce potential risk to human health and the 
environment, including potential risk from the transboundary movement 
of pollution from other countries to the U.S., and (2) harmonize the 
notice and consent procedures with international practice (see II.B.4) 
and with the RCRA universal waste regulations for the export of SLABs, 
resulting in a more uniform practice for notification and consent for 
SLABs.
    Notification of potential exports of hazardous waste destined for 
recovery in another country is a key component of multilateral 
environmental systems for appropriate governmental oversight to ensure 
proper management of the waste. The notification mechanism allows for 
all concerned countries (i.e., exporting, importing, and transit) to 
determine whether the hazardous waste can be handled safely based on 
the requirements of their waste management systems. Specifically, the 
importing country has the opportunity to confirm that the particular 
facility that is designated to receive the waste is qualified to manage 
it in a safe and environmentally sound manner, and has all appropriate 
approvals, permits, or licenses. Furthermore, the notice and consent 
process is the fundamental tool that is employed in transboundary waste 
arrangements to provide business certainty for legitimate trade.
    Risks to human health and the environment derived from improper 
SLAB recycling techniques are of major concern internationally. The 
Basel Convention has developed two guidance documents <SUP>2 3</SUP> to 
assist governments, transporters, and recyclers to achieve 
environmentally sound management of SLABs. Indeed, the Basel Convention 
considers transboundary movement of SLABs to be ``illegal traffic'' if 
it occurs without prior notification. Similar guidance was developed by 
the Commission for Environmental Cooperation \4\ (CEC) for use by North 
American countries to promote sound management of SLABs.\5\ A 1996 OECD 
Ministerial Declaration on risk reduction from lead called on Member 
countries to take domestic and international action to reduce human 
exposure to lead from a variety of sources.\6\ Further, the Report of 
the Special Rapporteur of the U.N. Commission on Human Rights \7\ 
expressed concerns that ``the United States system does not impose 
export regulations on SLABs destined for recycling,'' and suggests that 
``the recycling of lead-acid batteries is one of the greatest potential 
sources of risk, especially for exposed workers in the informal sector 
in many developing countries.''
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    \2\ Basel Convention Training Manual: National Management Plans 
for Used Lead Acid Batteries, SBC No. 2004/5, 2004.
    \3\ Technical Guidelines for the Environmentally Sound 
Management of Waste Lead-acid Batteries, SBC No. 2003/9, 2003.
    \4\ The Commission for Environmental Cooperation is an 
international organization created by Canada, Mexico and the United 
States under the North American Agreement on Environmental 
Cooperation (NAAEC). The CEC was established to address regional 
environmental concerns, help prevent potential trade and 
environmental conflicts, and to promote the effective enforcement of 
environmental law. The Agreement complements the environmental 
provisions of the North American Free Trade Agreement (NAFTA).
    \5\ Practices and Options for Environmentally Sound Management 
of Spent Lead-acid Batteries within North America, Commission for 
Environmental Cooperation, December 2007.
    \6\ The Global Pursuit of the Sound Management of Chemicals, The 
World Bank, February 2004.
    \7\ Adverse effects of the illicit movement and dumping of toxic 
and dangerous products and wastes on the enjoyment of human rights, 
U.N. Commission on Human Rights, Economic and Social Council, E/
CN.4/2003/56/Add.1, 10 January 2003, p. 17.
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    For economic and efficiency reasons, some highly industrialized 
countries may ship their SLABs to less industrialized countries for 
SLAB breaking, draining, component separation, slag generation and lead 
refining. Human health and environmental risk issues can arise when 
these recycling processes are performed with insufficient human health 
or environmental safety controls. The results could include: (1) 
Significant increases in elevated blood lead levels in facility workers 
and their families; (2) increases in uncontrolled releases of lead-
laden slag to soil, surface water and ground water sources; and (3) 
lead air-emissions from lead smelting without the proper air-emissions 
controls.
    EPA would like to focus on the use of preventative measures to 
decrease the proportionate risks to human health and the global 
environment. There are inherent human health and environmental hazards 
associated with a significant amount of SLABs being exported across 
borders without the knowledge and consent of receiving countries and/or 
SLABs being exported to countries with substandard smelting 
infrastructures. Amending the current RCRA hazardous waste regulations 
to include the notification and consent requirements would help ensure 
that SLABs are exported to countries with the capacity to handle them 
in an environmentally sound manner and to aid countries with tracking 
the movements and life-cycle management of SLABs inside their borders. 
EPA believes that the notification and consent approach is an effective 
way of preventing the export of SLABs to countries and to facilities 
that do not have the capability of safely managing the SLABs by 
providing the receiving country with the necessary information about 
the proposed shipment and requiring its consent before the export can 
proceed. In addition, by providing the receiving country with this 
information, they can monitor and track the export and the facility's 
management of the SLABs for safe management. The purpose of the 
notification and consent requirements for SLABs destined for 
reclamation in this proposed rule is consistent with the purpose of the 
notification and consent requirements in RCRA section 3017. Congress, 
in enacting section 3017, considered it important to require 
notification and consent for exports of hazardous wastes. The 
legislative history for section 3017 indicates that Congress felt that 
prior notification of an export to the receiving country would allow 
that country to make an informed decision as to whether it would accept 
the waste and, if so, how it would safely manage that waste. Congress 
noted that problems, such as harm to human health and the environment 
arise when wastes are sent to countries that do not want to receive 
them, or lack sufficient information to manage them properly.
    EPA believes that the potential reduction in risk to human health 
and the environment with this proposed modification will outweigh the 
incremental increase in burden to SLAB exporters. Moreover, because the

[[Page 58392]]

notification and consent requirements are intended to ensure that the 
receiving country has the necessary advance knowledge of a proposed 
shipment of SLABs to a facility in that country, the country can 
properly consent (or object) to this shipment based on its knowledge of 
the capabilities of the particular facility and its ability to manage 
the batteries in a safe and environmentally sound manner.
3. Exception Report Revisions for Exports Under Subparts E and H of 40 
CFR Part 262
    EPA proposes to amend the exception reporting requirements in 40 
CFR part 262, subparts E and H, to specify that all exception reports 
be submitted to the Office of Enforcement and Compliance Assurance's 
Office of Federal Activities in Washington, DC rather than to the 
Administrator.\8\ The Agency proposes this change because it believes 
that a more specific address should assist in proper delivery of the 
exception report to the appropriate EPA office. The more general 
requirement in the existing regulation to send this report to the 
``Administrator'' may have not provided sufficiently specific 
instruction for those exporters trying to notify EPA of returned 
shipments, which could reduce EPA's ability to provide oversight on 
such exports. Directing that all exception reports submitted to EPA 
pursuant to the requirements in 40 CFR part 262, subparts E and H, be 
sent to a specific address should ensure better oversight of (1) return 
shipments into the U.S. and (2) compliance with the exception report 
requirements without additional regulatory burden.
---------------------------------------------------------------------------

    \8\ The Office of Enforcement and Compliance Assurance is the 
office within EPA that implements the notice and consent scheme for 
hazardous waste transboundary shipments.
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4. Import Revisions
    Finally, EPA proposes to amend the import requirements specified in 
40 CFR part 262, subpart F. This change would require that the U.S. 
importer provide the transporter with a copy of documentation provided 
by EPA, confirming EPA's consent to the hazardous waste import under a 
specific notice. This documentation would then accompany each RCRA 
hazardous waste manifested import shipment and be submitted by the 
receiving facility in the U.S. to EPA along with the RCRA hazardous 
waste manifest in accordance with Sec. Sec.  264.71(a)(3) and 
265.71(a)(3). While EPA currently requires that receiving facilities in 
the U.S. submit a copy of the hazardous waste manifest to EPA to 
document individual import shipments, it has been difficult for EPA to 
match an individual manifest for a hazardous waste import shipment with 
the related notice of intent to export from a foreign country for which 
EPA has provided consent. One major reason for this difficulty is 
because a given destination facility in the U.S. could be receiving the 
same hazardous waste from the same foreign exporter under more than one 
notice. Adding this requirement will enable EPA to better match the 
individual import shipments against the related notice from the foreign 
exporting country for which EPA has provided consent, and facilitate 
our oversight of such imports.

II. Background

A. OECD Revisions

1. What is the OECD?
    The OECD is an international organization established in 1960 to 
assist Member countries in achieving sustainable economic growth, 
employment, and an increased standard of living, while simultaneously 
ensuring the protection of human health and the environment. OECD 
Member countries are concerned with a host of international socio-
economic and political issues, including environmental issues. To 
address these issues, the OECD Council may negotiate Council Decisions, 
which are international agreements that create binding commitments on 
the United States under the terms of the OECD Convention, unless 
otherwise provided in the Articles of the 1960 Convention. One such 
Council Decision addresses the transboundary movement of waste, which 
is the subject of this proposed rule. There are currently thirty OECD 
Member countries: Australia, Austria, Belgium, Canada, the Czech 
Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, 
Ireland, Italy, Japan, Luxembourg, Mexico, the Netherlands, New 
Zealand, Norway, Poland, Portugal, the Slovak Republic, South Korea, 
Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United 
States. The OECD country Web site for each Member country may be found 
at http://www.oecd.org/infobycountry/.
2. What OECD Decision formed the basis for the existing regulations in 
40 CFR part 262, subpart H?
    On March 30, 1992, the OECD Council adopted the ``Decision of the 
Council C(92)39/FINAL Concerning the Control of Transfrontier Movements 
of Wastes Destined for Recovery'' (hereinafter referred to as the 1992 
Decision), which applied to the transboundary movements of wastes 
destined for recovery operations between OECD Member countries. The 
1992 Decision provided a framework for OECD Member countries to control 
the transboundary movement of recoverable wastes in an environmentally 
sound and economically efficient manner.
3. Why did EPA establish the existing regulations in 40 CFR part 262, 
subpart H?
    Due to the legally binding nature of the 1992 Decision, the United 
States, as an OECD Member country, was required to implement the terms 
of the decision in accordance with Articles 5(a) and 6 of the OECD 
Convention. (A copy of the OECD Convention is included in the docket to 
this proposed rule.) In order to implement the specific provisions of 
the 1992 Decision, EPA published a final rule in the Federal Register 
entitled, ``Imports and Exports of Hazardous Waste: Implementation of 
OECD Council Decision C(92)39 Concerning the Control of Transfrontier 
Movements of Wastes Destined for Recovery Operations'' (61 FR 16289, 
April 12, 1996)(hereafter referred to as EPA's OECD rule). These 
regulations appear primarily in 40 CFR part 262, subpart H.
4. What OECD Decisions form the basis of the revisions in this proposed 
rule?
    On June 14, 2001, the OECD Council amended the 1992 Decision by 
passing ``Revision of Decision C(92)30/FINAL on the Control of 
Transboundary Movement of Wastes Destined for Recovery Operations'' 
(hereafter referred to as the 2001 OECD Decision). The goal of the 2001 
OECD Decision was to harmonize the procedures and requirements of the 
OECD with those of the Basel Convention and to eliminate duplicative 
activities between the two international organizations as much as 
practical. These changes include significant revisions to the original 
established framework (such as reducing the levels of control from a 
three-tiered system to a two-tiered system), while also adding entirely 
new provisions (for example, the new certificate of recovery 
requirement). Subsequent to the 2001 OECD Decision, an addendum, 
C(2001)107/ADD1 (hereafter referred to as the 2001 OECD Addendum), 
which consists of revised versions of the notification and movement 
documents and the instructions to complete them, was adopted by the 
OECD Council on February 28, 2002. The addendum was incorporated into 
the 2001 OECD Decision as section C of Appendix 8, and the combined 
version was issued in

[[Page 58393]]

May 2002 as C(2001)107/FINAL. Finally, on March 30, 2004, the OECD 
Council adopted C(2004)20 (hereafter referred to as the 2004 OECD 
Amendment), which updated the OECD waste lists, entitled ``Appendix 3: 
List of Wastes Subject to the Green Control Procedure'' (hereafter 
referred to as the Green list) and ``Appendix 4: List of Wastes Subject 
to the Amber Control Procedure'' (hereafter referred to as the Amber 
List). To the extent possible, the Green and Amber Lists were revised 
based on the amendments made to Annexes II, VIII, and IX of the Basel 
Convention in November 2003. The OECD Council decisions are 
collectively referred to as the Amended 2001 OECD Decision.
5. How does EPA propose to revise the existing regulations to implement 
the latest OECD Decisions?
    This rule proposes to amend EPA's OECD rule to reflect the 
procedural and substantive amendments in the 2001 OECD Decision, the 
applicable changes to the new notification and movement documents 
presented in the 2001 OECD Addendum, and the changes to the OECD waste 
lists as presented in the 2004 OECD Amendment, collectively referred to 
as the Amended 2001 OECD Decision. This proposed rule also seeks to 
clarify certain existing regulatory provisions that have been 
identified as potentially ambiguous to the regulated community.
    As noted previously, OECD Council Decisions are international 
agreements that create binding commitments on the United States, unless 
otherwise provided in the Articles to the 1960 Convention. Therefore, 
by consenting to the Amended 2001 OECD Decision, the United States 
Government has agreed to establish legal measures necessary to ensure 
that the United States can uphold the agreement. EPA believes that RCRA 
contains adequate authority to promulgate the requirements of the 
Amended 2001 OECD Decision.
    It is important to recognize that the OECD Decision allows a Member 
country to determine if a waste on an OECD list is hazardous based on 
its ``national procedures.'' EPA has determined that a waste is 
hazardous under U.S. ``national procedures''--and therefore subject to 
the OECD provisions of Subpart H--if the waste meets the following 
requirements under RCRA: (a) Meets the Federal definition of hazardous 
waste in 40 CFR 261.3; and (b) is subject to either the Federal 
hazardous waste manifesting requirements in 40 CFR 262, or to the 
universal waste management standards of 40 CFR part 273, or to State 
requirements analogous to Part 273. This determination was set forth in 
Sec.  262.89(a), and additional discussion on how this provision 
impacts transboundary movements of wastes subject to RCRA exemptions, 
exclusions and recycling provisions can be found in the April 12, 1996, 
preamble to the original OECD rule (61 FR 16290-16316).
6. How does EPA propose to implement future OECD revisions?
(a) Changes to OECD Member Country List
    Qualified countries may be invited to accede to the OECD Convention 
as new Members. The OECD Convention defines qualified countries as 
those that have demonstrated the basic values shared by all Members: An 
open market economy, democratic pluralism, and respect for human 
rights. Any decision to invite a new country to become a Member of the 
OECD must be unanimous, although abstentions may be allowed. Thus, no 
new Member may be admitted over the objection of the United States (or 
any other Member).
    In order to accommodate changes in OECD membership as quickly as 
possible, EPA intends to publish in the Federal Register any future 
amendments to the list of OECD Member countries set forth in Sec.  
262.58(a)(1), as the OECD adds new Member countries or otherwise amends 
its list in the future. EPA intends to publish notices of these future 
amendments to Sec.  262.58(a)(1) as a final rule without prior notice 
and opportunity for comment. EPA believes that the Agency would be able 
to make a ``good cause'' finding under the Administrative Procedure Act 
(APA) (5 U.S.C. 553(b)(3)(B)) to make these future amendments without 
prior notice and comment. EPA believes notice and an opportunity for 
comment on future amendments to Sec.  262.58(a)(1) to reflect the 
updates to the OECD list of Member countries would be unnecessary, 
because the United States, as an OECD Member country, is legally 
obligated to implement OECD Decisions with respect to all OECD Member 
countries.
(b) Changes to OECD Waste List
    The OECD waste list is incorporated by reference and cited in Sec.  
262.89(d). If the OECD amends its waste list in the future by decision 
of the OECD Council (with the concurrence of the United States), EPA 
intends to publish notices of these amendments in the Federal Register 
as a final rule without prior notice and an opportunity for comment. 
EPA believes that the Agency would be able to make a ``good cause'' 
finding under the Administrative Procedure Act (APA) (5 U.S.C. 
553(b)(3)(B)) to make these future amendments without prior notice and 
comment because the purpose of Sec.  262.89(d) is solely 
informational--to provide an up-to-date reference of the OECD list. 
Public comment on such updates is unnecessary, as EPA would have no 
discretion to modify the OECD list. As discussed above, U.S. national 
procedures, rather than the OECD list, ultimately determine the 
applicability of Subpart H, recognizing that the OECD list will be 
relevant for exports to other OECD members.

B. SLAB Revisions

1. What are SLABs?
    Lead-acid batteries are secondary, wet cell batteries that contain 
liquid and can be recharged for many uses. They are the most widely 
used rechargeable batteries in the world and are mainly used as 
starting, lighting, and ignition (SLI) power batteries found in 
automobiles and other vehicles. A rechargeable SLAB is spent if it no 
longer performs effectively and cannot be recharged. Battery failure is 
most commonly attributed to water loss and grid corrosion during normal 
use. SLABs are considered both solid and hazardous wastes under 
Subtitle C of RCRA, because they are classified as spent materials that 
exhibit the toxicity characteristic for lead, and the corrosivity 
characteristic for the sulfuric acid electrolyte in the battery.
    Lead-acid batteries are typically composed of an outside plastic 
casing and six inner cells containing lead strips and positive and 
negative lead terminals. Each cell is made up of two lead frameworks, 
the positive plate being lead dioxide and the negative plate being 
spongy lead (a metallic lead in a high-surface-area porous structure). 
Each cell is filled with sulfuric acid as the electrolyte. When the 
battery is in use, the spongy lead, sulphuric acid, and lead dioxide 
react to produce an electrical current. Both electrodes are converted 
to lead sulfate, a process which is reversed during recharge.
2. How are SLABs currently managed?
    Currently, SLABs are either reclaimed for their lead value or 
disposed of. The Battery Council International (BCI) reported a 99.2 
percent domestic SLAB reclamation rate for the years 1999-2003, making 
lead-acid batteries one of the most recycled consumer products. When a 
SLAB is collected, it is sent to a reclaimer where the SLABs are 
cracked through various means, such as

[[Page 58394]]

a hammermill in order to separate out the lead, battery casing, plate 
separators, and sulfuric acid components into recycling streams and 
disposal streams. Specifically, the lead plates, lead oxide paste and 
other lead parts are cleaned and then melted together in smelting 
furnaces to produce lead ingots along with residual lead dross and 
slag. The residual lead dross and slag may be reclaimed further or 
disposed of in a landfill. Used sulphuric acid can be (1) Sent for acid 
regeneration, where the acid is cleaned for re-use as electrolyte in 
the battery manufacturing process, (2) neutralized and released into a 
public sewer system once it meets Clean Water Act standards, or (3) 
converted into sodium sulfate, an odorless white powder that's used in 
laundry detergent, glass and textile manufacturing. If it is a plastic-
cased battery, the plastic is either cleaned and recycled as new 
battery casings or disposed of at a landfill. If the battery casing is 
made of rubber or other materials, it can be used as a fuel at the 
smelter. Other materials from batteries are either recycled or disposed 
of in a landfill.
    Lead is a highly toxic heavy metal naturally occurring in the 
environment. For this reason, proper management of lead and lead-
containing products is essential to the protection of human health and 
the environment. In the U.S., the Occupational Safety and Health 
Administration (OSHA) has developed standards to address and minimize 
workplace exposure to lead (29 CFR Sec.  1910.1025). These standards 
establish permissible exposure limits; exposure monitoring, respiratory 
protection and safety procedures; and proper warning and sign-age 
requirements for facilities processing lead. Proper ventilation, 
training and safety procedures also are necessary. In less developed 
countries, these precautions may be overlooked, leading to dangerous 
conditions. (See ``A Study of the Lead-Acid Battery Industry and Spent 
Lead-Acid Battery Exports,'' June 2003, a copy of which is included in 
the RCRA docket established for this proposed rule.)
    Recent data show that the primary factors influencing decisions to 
export SLABs from the United States include the price of scrap lead, 
worldwide supply and demand for lead, and the relative price of virgin 
lead compared to the price of scrap lead. BCI estimates that in 1995, 
approximately 1,078,674 tons of recoverable lead was available from 
batteries consumed domestically. BCI also reports that, based on 
Department of Commerce data, approximately 104,614 tons of battery 
scrap lead were exported in 1995. In contrast, approximately 269,171 
metric tons of SLABs were exported in 2006 based on more recent data 
from the International Trade Commission, Environment Canada, and 
Secretaria de Medio Ambiente y Recursos Naturales (SEMARNAT). Such a 
large increase in exports may be in large part due to recent increases 
in the domestic and international price of lead.
    According to the annual ``Mineral Commodity Summaries'' published 
by the U.S. Geological Survey (USGS), the average price of lead for 
North American producers increased by 77% from 43.7 cents/pound in 1999 
to 77.8 cents/pound in 2006. The average price as reported on the 
London Metal Exchange increased by 154% during those same years from 
22.8 cents/pound to 58.0 cents/pound. In addition, while export 
shipments destined for locations in many countries are subject to 
duties or tariffs on any exported SLABs, Canadian and Mexican importers 
are allowed, under the conditions of the North American Free Trade 
Agreement (NAFTA), to import SLABs without the usual surcharge. Indeed, 
data show that Canada and Mexico are the major destination countries to 
which U.S. SLABs have been exported in recent years. For example, in 
2006 U.S. SLAB exports to Mexico and Canada were estimated to be 
199,000 metric tons and 66,000 metric tons, respectively (based on data 
from Mexican and Canadian government sources). Comparing this 
information to data from the U.S. International Trade Commission, it is 
estimated that only 1.8% of SLAB exports are destined for countries 
other than Mexico or Canada. (See the EPA Cost Assessment \9\ prepared 
in support of this proposed action.)
---------------------------------------------------------------------------

    \9\ Cost Assessment for the Proposed Rule on Exports and Imports 
of Hazardous Waste Destined for Recovery Among OECD Countries and 
Exports of Spent Lead-Acid Batteries from the U.S.
---------------------------------------------------------------------------

3. How are SLABs currently regulated in the United States?
    Under the current Federal hazardous waste regulations established 
pursuant to RCRA, SLABs are hazardous wastes if the batteries exhibit 
one or more of the characteristics of hazardous waste provided in 40 
CFR 261, subpart C (e.g., corrosivity (D001), or toxicity for lead 
(D008)). SLABs typically exhibit the toxicity characteristic for lead 
and, therefore, are defined as hazardous wastes.
(a) SLABs Sent for Disposal Within the United States
    If a generator disposes, rather than reclaims, SLABs, the SLABs 
would need to be managed in compliance with the Subtitle C hazardous 
waste management regulations, which could include the part 273 
universal waste rules. However, in all instances, SLABs that are 
disposed of must be managed at a RCRA Subtitle C disposal facility and 
are subject to the Land Disposal Restriction requirements of 40 CFR 
part 268.
    The universal waste regulations, promulgated on May 11, 1995, were 
created to provide a streamlined set of management regulations 
governing the collection and management of certain widely generated 
hazardous wastes, such as spent batteries. For the purposes of the 
universal waste regulations, the definition of ``battery'' includes 
SLABs. While SLABs managed as universal waste may be drained of 
sulphuric acid, the battery casings must be intact. SLABs that have 
partially or wholly crushed casings cannot be managed as universal 
waste.
    A universal waste handler is required to ensure that the SLABs do 
not spill or leak and that they are stored in a structurally sound 
container. In addition, depending upon the amount of SLABs that are 
accumulated, a battery handler may be required to track shipments of 
the SLABs sent off-site for reclamation or other management. Universal 
waste handlers are not allowed to treat their waste; however, they can 
conduct certain activities (e.g., sorting, regeneration \10\, etc.) 
provided the battery casings remain intact.
---------------------------------------------------------------------------

    \10\ Regeneration under 40 CFR part 266, subpart G, includes 
only replacing drained electrolyte fluids and replacing ``bad'' 
battery cells. (See 48 FR at 14496.)
---------------------------------------------------------------------------

    Other general provisions to which all universal waste handlers are 
subject include labeling/marking, accumulation time limits, employee 
training, and response to releases of hazardous waste. Off-site 
shipments of universal wastes do not require a hazardous waste 
manifest, provided they are sent to another universal waste handler or 
a specified destination facility, and are shipped by an authorized 
universal waste transporter.
(b) SLABs Sent for Reclamation Within the United States
    When reclaimed, SLABs are exempt from most of the RCRA Subtitle C 
hazardous waste regulations, but are subject to the regulations in part 
266, subpart G. (See 40 CFR Sec.  261.6(a)(2)(iv).) Alternatively, they 
can also be managed as a universal waste and subject to the universal 
waste regulations in 40 CFR part 273. Thus, generators that send SLABs 
off-site for reclamation may choose to manage their SLABs either as a 
universal waste, in accordance with

[[Page 58395]]

the management standards in 40 CFR part 273, or in accordance with the 
management standards in 40 CFR part 266, subpart G.
    Under the provisions of 40 CFR part 266, subpart G, persons who 
generate, collect, transport, or store SLABs for direct regeneration or 
reclamation are exempt from the bulk of the RCRA hazardous waste 
regulations (40 CFR parts 262 through 266, 270, 124 and the EPA 
notification and identification number requirements). However, 40 CFR 
part 266, subpart G imposes certain requirements on reclaimers of SLABs 
who do not store prior to reclamation, and on facilities that store 
SLABs destined for reclamation, but do not conduct any reclamation. In 
addition, owners or operators of facilities that both store and reclaim 
SLABs are required to comply with the EPA notification and 
identification number requirements and all applicable hazardous waste 
management facility provisions in parts 264/265, 270, and 124, and are 
subject to 40 CFR parts 261, Sec.  262.11, and applicable provisions 
under part 268.
4. What international agreements apply to the export of SLABs?
    There are two major international agreements that expressly address 
the export of SLABs: (1) The Basel Convention on the Control of 
Transboundary Movements of Hazardous Wastes and Their Disposal (Basel 
Convention); and (2) the Amended 2001 OECD Decision (see II.A.4 for 
more information). This proposal would harmonize the EPA SLAB export 
requirements with both of these international agreements.
    As noted in footnote 1, the Basel Convention is a multilateral 
international agreement governing the transboundary movements of 
hazardous wastes. Among other things, the Basel Convention includes a 
requirement for notice and written consent for transboundary movements 
of hazardous waste between trading countries. SLABs are covered under 
the Basel Convention as a hazardous waste and are thus subject to the 
notice and consent requirements of the Basel Convention. The United 
States is a signatory to the Convention, but has not yet ratified it 
and is therefore not legally bound to its requirements.
    The Amended 2001 OECD Decision regulates the transboundary 
movements of hazardous wastes (e.g. wastes subject to Amber control 
procedures) destined for recovery within OECD Member countries. The 
Amended 2001 OECD Decision lists SLABs, whether whole or crushed, as 
subject to the Amber control procedures.
    Currently, under the RCRA hazardous waste regulations, SLABs can be 
managed either in accordance with the special regulations under 40 CFR 
part 266, subpart G or in accordance with the universal waste 
regulations, as discussed above. Under part 266, subpart G, SLABs that 
are destined for reclamation are currently exempt from the RCRA export 
requirements in 40 CFR part 262, subpart E and subpart H (including the 
notice and consent requirements).
    On the other hand, under the universal waste regulations, exporters 
of SLABs for reclamation are subject to the export requirements in 40 
CFR part 273 (including the notice and consent requirements) or, if the 
SLABs will be exported to an OECD Member country for recovery, the 
export requirements (including notice and consent) in 40 CFR part 262, 
subpart H, apply. In addition, even in situations where U.S. exporters 
are not subject to the notice and consent requirements, U.S. exporters 
may still be required to notify the importing OECD Member country of 
their intention to export batteries, pursuant to contracts with foreign 
consignees. This is because SLABs, identified by the Amended 2001 OECD 
Decision as wastes subject to Amber control procedures, are generally 
considered to be hazardous waste under the national procedures of the 
importing Member countries.
5. How does EPA propose to revise the SLAB regulations under 40 CFR 
part 266, subpart G?
    EPA proposes to amend the SLAB regulations under 40 CFR part 266, 
subpart G, to require that exporters and transporters handling SLABs 
destined for reclamation in a foreign country to comply with the same 
requirements specified in the universal waste regulations under 40 CFR 
part 273. Specifically, an exporter who sends the SLABs to a foreign 
destination other than to those OECD countries specified in 40 CFR 
262.58(a)(1) would have to:
    (a) Comply with the requirements applicable to a primary exporter 
in 40 CFR 262.53, 262.56(a) (1) through (4), (6), 262.56(b) and 262.57; 
(b) export such SLABs only upon consent of the receiving country and in 
conformance with the EPA Acknowledgement of Consent as defined in 
subpart E of 40 CFR part 262 of this chapter; and (c) provide a copy of 
the EPA Acknowledgment of Consent for the shipment to the transporter 
transporting the shipment for export. In addition, a transporter 
transporting a shipment of SLABs to a foreign destination other than to 
those OECD countries specified in 40 CFR 262.58(a)(1) would not be able 
to accept a shipment if the transporter knew the shipment does not 
conform to the EPA Acknowledgment of Consent, and would have to ensure 
that: (a) a copy of the EPA Acknowledgment of Consent accompanies the 
SLAB export shipment; and (b) the shipment is delivered to the facility 
designated by the person initiating the SLAB export shipment.
    For SLABs destined for reclamation in OECD countries specified in 
40 CFR 262.58(a)(1), exporters and transporters would be subject to the 
requirements of 40 CFR part 262, subpart H, the requirements governing 
hazardous waste shipments to OECD countries.

C. Exception Report Revisions for Exports Under Subparts E and H of 40 
CFR Part 262

    EPA proposes to replace ``EPA Administrator'' with ``the Office of 
Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 
20460'' in both Sec.  262.55 and in Sec.  262.87(b).
    By providing a specific address for the submission of all exception 
reports required by 40 CFR part 262, subparts E and H, EPA can ensure 
better oversight of (1) return shipments to the U.S. and (2) compliance 
with the exception reporting requirements without any additional 
regulatory burden for U.S. exporters. In this proposed rule, EPA is 
making very clear that submission of these export exception reports 
must be to the same specific EPA address that receives all export 
notifications and export annual reports, and with no substitution for 
comparable State agencies. States that are interested in receiving a 
parallel copy of the exception report will still be able to require the 
submission of a copy to their State Director in addition to sending it 
to the above federal address.

D. Import Revisions

    EPA proposes to amend the import requirements specified in Sec.  
262.60(e) to require that the U.S. importer provide the transporter 
with a copy of the documentation confirming EPA's consent to the 
hazardous waste import, specified under a notice submitted by the 
competent authority of the country of export. This documentation must 
accompany each RCRA hazardous waste shipment and be submitted by the 
U.S. receiving facility to EPA along with the RCRA hazardous waste 
manifest as

[[Page 58396]]

required under Sec. Sec.  264.71(a)(3) and 265.71(a)(3).
    While EPA currently requires that U.S. receiving facilities submit 
a copy of the hazardous waste manifest to EPA to document individual 
hazardous waste import shipments, it has proved difficult to match 
individual hazardous waste import shipments against a given approved 
notice of intent to export from a foreign country. In part, this is 
because a given destination facility in the United States could be 
receiving the same hazardous waste from the same foreign exporter under 
more than one approved notice. Adding this requirement will enable EPA 
to match the submitted RCRA hazardous waste manifests for individual 
import shipments against the approved import notice that typically 
covers the twelve months of imports. Being able to do so will enable 
EPA to determine when any import shipments claiming coverage under that 
specific notice would or would not be in accordance with the terms of 
the approved notice, thus improving our oversight of such imports.
    EPA currently responds to specific notices of intent to export 
hazardous waste from a foreign country into the United States with 
either a written response (e.g., written consent or objection) or a 
tacit consent. Tacit consents are allowable for imports subject to 
EPA's OECD regulations, as specified in 40 CFR part 262, subpart H. For 
such imports, the exporting country may assume tacit consent to the 
proposed shipments by EPA if no written response from EPA has been 
received by the exporting country thirty working days from the date EPA 
sends the exporting country a letter acknowledging receipt of the 
notice. Because EPA's consents are currently either tacit or sent in 
writing only to the competent authority of the exporting country, EPA 
will need to provide or otherwise make available to U.S. importers 
documentation confirming the Agency's consent. EPA is considering and 
soliciting comments on what would provide adequate documentation of the 
Agency's written or tacit consent to a specific notice, and how best to 
provide that information to U.S. importers.

III. Summary of This Proposed Rule and Changes

A. Changes to 40 CFR Part 262, Subpart E

    This proposed rule amends the exception reporting requirements in 
Sec.  262.55 to specify that all exception reports be submitted to the 
Office of Enforcement and Compliance Assurance's Office of Federal 
Activities in Washington, DC, rather than to the Administrator. In 
addition, the proposal also updates Sec.  262.58(a) to reflect that 
export shipments of SLABs being managed under 40 CFR part 266, subpart 
G that are destined for recovery in one of the OECD Member countries 
listed in Sec.  262.58(a)(1) are subject to the requirements of subpart 
H. Finally, the proposal adds language in Sec.  262.58(b) of subpart E 
to clarify that hazardous waste exports subject to subpart E and 
hazardous waste imports subject to subpart F are not subject to subpart 
H in order to reduce confusion for U.S. exporters and importers.

B. Changes to 40 CFR 262.60(e), Subpart F

    This proposed rule includes the requirement that a U.S. importer 
provide the transporter a copy of the documentation confirming EPA's 
consent to the import of hazardous waste when the importer provides the 
transporter with an additional copy of the manifest.

C. Changes to 40 CFR Part 262, Subpart H

    All but the last three changes listed below are necessary to 
conform to the revisions in the Amended 2001 OECD Decision. These 
changes range from substantive revisions and amendments to changes in 
terminology to simple editorial changes. Collectively, these changes 
serve to implement the Amended 2001 OECD Decision, as well as clarify 
certain sections that were previously ambiguous to the regulated 
community. Changes to 40 CFR part 262, subpart H include:
1. Changes in Terminology
    In the Amended 2001 OECD Decision, the OECD Council updated several 
terms and definitions used in the 1992 Decision. EPA believes that 
these changes do not result in substantive changes to the intent of the 
requirements, but merely bring them in line with current terminology 
used in practice and in other international agreements. To limit any 
unnecessary confusion between the U.S. regulations and those of other 
OECD Member countries and to promote consistency with the Amended 2001 
OECD Decision, this proposed rule adopts these changes in terminology. 
Thus, EPA proposes to change the following terminology:
    (a) ``Transfrontier'' to ``transboundary'';
    (b) ``Tracking document'' to ``movement document'';
    (c) ``Amber-list controls'' to ``Amber control procedures'';
    (d) ``Notifier'' to ``exporter''; and
    (e) ``Consignee'' to ``importer.'' \11\
---------------------------------------------------------------------------

    \11\ The change from ``consignee'' to ``importer'' is only being 
made in 40 CFR part 262 subpart H, and does not affect the use of 
consignee in 40 CFR part 262 subpart E.
---------------------------------------------------------------------------

2. The Number of Different Levels of Control Is Reduced From Three 
(Green, Amber, and Red) to Two (Green and Amber) and the Waste Lists 
Have Been Updated
    The 2001 OECD Decision replaced the OECD three-tier waste list 
(Green, Amber, Red) system with a two-tiered system (Green and Amber) 
to conform to the Basel Convention waste lists more closely. Further, 
the revised OECD waste lists, as provided by the 2004 OECD Amendment, 
better correspond to those of the Basel Convention. Accordingly, we are 
proposing to make these same conforming changes to EPA's OECD rule.
    Wastes subject to the Green control procedures are those wastes 
listed in Parts I and II of Appendix 3 to the Amended 2001 OECD 
Decision. Part I contains wastes listed in Annex IX of the Basel 
Convention, to which the OECD has made and noted adjustments, as 
appropriate. Part II contains additional wastes subject to the Green 
control procedures, which the OECD has assessed as not posing any risk 
to human health or the environment under its risk criteria.
    Wastes subject to the Amber control procedures are those wastes 
listed in Parts I and II of Appendix 4 to the Amended 2001 OECD 
Decision. Part I contains wastes listed in Annexes II and VIII of the 
Basel Convention, to which the OECD has made and noted adjustments, as 
appropriate. Part II contains additional wastes subject to the Amber 
control procedures, which the OECD has assessed as posing a risk to 
human health or the environment under its risk criteria. Further, all 
wastes formerly appearing on the Red list would be subject to the Amber 
control procedures.
    U.S. importers and exporters of hazardous waste subject to the 
subpart H requirements of 40 CFR part 262 should be aware that wastes 
listed in Part I of both the new OECD Amber and Green waste lists have 
not retained their OECD waste codes. Consequently, the relevant Basel 
waste codes should be used instead. However, wastes listed in Part II 
of both the new OECD Amber and Green waste lists do retain their 
original OECD waste codes, as listed in the 1992 Decision. This two-
part system is

[[Page 58397]]

necessary to ensure that wastes not yet explicitly listed under the 
Basel Convention will continue to have the same level of control 
applied to them when destined for recovery under the Amended 2001 OECD 
Decision.
    Both the Green waste list and the Amber waste list are cited in 
Sec.  262.89. This rule proposes to amend Sec.  262.89(d) to 
incorporate by reference the most current OECD waste lists from the 
Amended 2001 OECD Decision. Further, the elimination of the Red list 
allows for the consolidation of the provisions currently found in Sec.  
262.89(b) and (c), which appears in the new proposed Sec.  262.89(b).
3. References to Unlisted Wastes Have Been Eliminated in Favor of 
``Wastes Not Covered in Appendices 3 and 4 of the OECD Decision''
    Section 262.83(d) currently addresses the general notification 
requirements for unlisted wastes. This rule first proposes to renumber 
this section to Sec.  262.83(c) since the current Sec.  262.83(c) 
addresses ``red-list wastes'' and is no longer needed. This proposal 
also replaces the term ``unlisted wastes'' with ``wastes not covered in 
Appendices 3 and 4 of the OECD Decision, \12\'' so that wastes not on 
these lists are not automatically subject to the Amber control 
procedures. Rather, ``wastes not covered in Appendices 3 and 4 of the 
OECD Decision'' will be subject to the domestic rules and regulations 
of the countries of concern.
---------------------------------------------------------------------------

    \12\ Section 262.81(j) in the proposed revisions to the 
regulatory text in 40 CFR part 262, subpart H defines ``OECD 
Decision'' as ``Decision of the Council C(2001)107/FINAL, Concerning 
the Control of Transboundary Movements of Wastes Destined for 
Recovery Operations, as Amended by C(2004)20'' for the purposes of 
the subpart.
---------------------------------------------------------------------------

4. Transboundary Movements May Now Qualify for a Laboratory Analysis 
Exemption
    The 1992 Decision and EPA's OECD rule did not include a provision 
that would exempt waste samples destined for laboratory analyses. The 
Amended 2001 OECD Decision, however, would allow Member countries to 
decide through their domestic laws and regulations that waste samples 
normally subject to the Amber control procedures will only be subject 
to the Green control procedures if such samples are destined for 
laboratory analyses to assess its physical or chemical characteristics, 
or to determine its suitability for recovery operations. Therefore, we 
are proposing that if the waste sample is destined for laboratory 
analyses and meets certain specified conditions, then the waste is 
subject to the Green control procedures (e.g., the existing controls 
normally applied in commercial transactions).
    The Amended 2001 OECD Decision provides that the amount of waste 
qualifying for this exemption shall not be more than the minimum 
quantity reasonably needed to perform the analyses adequately in each 
particular case, but can never exceed twenty-five kilograms (25 kg /55 
lbs). Analytical samples also must be appropriately packaged and 
labeled and must be carried out under the terms of all applicable 
international transport agreements. Furthermore, any transboundary 
movement of such samples through non-OECD Member countries shall be 
subject to international law and to all applicable national laws and 
regulations. Thus, the proposed rule allows for waste samples that are 
sent for laboratory analyses to be exempt from the Amber control 
procedures provided they meet the same conditions as set forth in the 
Amended 2001 OECD Decision.
    Information on exemptions and any other national requirements 
concerning movements of waste for laboratory analyses is available to 
the public via a Web site with information compiled by the OECD 
Environment Directorate, which can be accessed at http://www.oecd.org/env/waste/.
    U.S. exporters should also be aware that even if their shipments 
qualify for the laboratory analyses exemption, some Member countries 
may elect to apply the Amber control procedures to such shipments, 
requiring the exporter of a waste sample for laboratory analyses to 
inform the competent authorities of such a movement. U.S. exporters 
should check with the competent authorities of each country to find out 
if they require the Amber control procedures for a sample that would 
qualify for the laboratory analyses exemption.
5. Recovery Facilities Must Submit a Certificate of Recovery
    This proposed rule would implement the Amended 2001 OECD Decision's 
requirement that a duly authorized representative of the recovery 
facility submit a certificate of recovery to all interested parties 
(e.g., exporter, country of export, country of import), ensuring 
recovery of the waste has been completed. A valid certificate of 
recovery is defined as a written and dated statement that affirms that 
the waste materials were recovered and that any residuals generated 
from the recovery operation have been disposed of in the manner agreed 
to by the parties to the contract.\13\ This proposed rule also 
requires, as does the Amended 2001 OECD Decision, that the recovery 
facility send the certificate of recovery as soon as possible, but no 
later than thirty (30) days after the completion of recovery and no 
later than one (1) calendar year following the receipt of waste by the 
recovery facility. Finally, this proposed rule requires that the 
recovery facility must send copies of the certificate of recovery to 
the exporter and competent authorities of the countries of export and 
import by mail, e-mail followed by mail, or fax followed by mail. This 
proposed rule incorporates the certificate of recovery provisions of 
the Amended 2001 OECD Decision in Sec.  262.83(e).
---------------------------------------------------------------------------

    \13\ Under both the 1992 Decision and the Amended 2001 OECD 
Decision, transboundary movements of wastes subject to the Amber 
control procedures may only occur under the terms of a valid written 
contract, or chain of contracts, or equivalent arrangements between 
facilities controlled by the same legal entity, starting with the 
exporter and terminating at the recovery facility. The contracts 
must: (a) Clearly identify the generator of each type of waste, each 
person who shall have legal control of the wastes and the recovery 
facility; (b) provide that relevant requirements of the OECD 
Decisions are taken into account and binding on all parties; and (c) 
specify which party to the contract shall assume responsibility for 
ensuring alternative management of the wastes including, if 
necessary, the return of the wastes.
---------------------------------------------------------------------------

    The Amended 2001 OECD Decision states that the completion of block 
18 of the OECD movement document, and the submission of signed copies 
to the exporter and relevant competent authorities, fulfils the 
certificate of recovery requirement. Although the OECD movement 
document is recommended, the Amended 2001 OECD Decision does not 
require recovery facilities to use it.
    While some recovery facilities may not be subject to the import and 
other requirements because they are not handling RCRA hazardous waste, 
these entities should be aware that the competent authorities of the 
exporting Member countries may still impose the conditions outlined in 
the OECD Council Decisions before the transactions can be completed. 
Thus, if the waste is considered non-hazardous in the United States, 
EPA would not require a certificate of recovery from a facility. 
However, the competent authority of the country of export may require a 
certificate of recovery, and may require that the exporter include such 
a requirement in the contract between the exporter and importer.

[[Page 58398]]

6. Amendments to Notification Requirements
    The Amended 2001 OECD Decision introduced a series of notification 
requirements that require EPA to make conforming amendments to its OECD 
regulations. Specifically, this proposed rule would amend Sec.  
262.83(e) (which would be renumbered as Sec.  262.83(d)) by 
incorporating several new items that must be included in the 
notification, including:
    (a) Exporter and importing recovery facility e-mail address;
    (b) E-mail address for importer (if different from the importing 
recovery facility);
    (c) Address, telephone, fax, and e-mail of intended transporter(s);
    (d) Means of transport envisioned; and
    (e) Specification of the type of recovery operation(s) that will be 
used.
7. Amendments to Procedures for Exports to Pre-Approved Facilities
    Under the Amended 2001 OECD Decision, a pre-approved recovery 
facility (also known as a pre-consented recovery facility) is one that 
has been identified in advance by the competent authority having 
jurisdiction over that facility as acceptable for receiving hazardous 
waste imports. For these facilities, the competent authority must 
inform the OECD secretariat that the facility is pre-approved, and the 
waste types that are acceptable for recovery. This allows for 
simplified and accelerated notification procedures. Pre-approval may be 
granted for a specific time frame and may be revoked at any time by the 
relevant competent authority.
    The Amended 2001 OECD Decision established a consideration period 
for objection to transboundary movements to pre-approved facilities and 
lengthened the allowable coverage period for notifications. 
Specifically, the Decision established a consideration period of seven 
(7) working days during which time relevant competent authorities may 
object to transboundary movements of waste to pre-approved facilities. 
The Decision also established that the allowable coverage period for 
general notifications may extend up to three (3) years. Today's 
proposed rule amends the current regulations to incorporate these 
changes in Sec.  262.83(b)(2)(ii) to reflect the seven (7) day 
consideration period and in Sec.  262.83(b)(2)(i) to reflect the 
allowable coverage period for notifications.
8. New Procedures for the Pretreatment of Hazardous Wastes at R12/R13 
Recovery Facilities
    The Amended 2001 OECD Decision imposed new requirements for R12 and 
R13 recovery facilities, which we are proposing to incorporate in this 
proposal. R12 and R13 recovery facilities are transfer and storage 
facilities, respectively, that do not recover the wastes themselves. 
Because hazardous wastes destined for recovery may have to undergo 
treatment before a R1-R11 \14\ recovery facility actually recovers 
them, the OECD considers R12 and R13 facilities as ``intermediate or 
temporary operations.'' The primary reason for the new requirements is 
to ensure that the subsequent R1-R11 recovery operation receives the 
waste and completes its recovery in an environmentally sound manner.
---------------------------------------------------------------------------

    \14\ Recovery operations R1 through R11 are defined as the 
following: R1, use as a fuel (other than in direct incineration) or 
other means to generate energy; R2, solvent reclamation/
regeneration; R3, recycling/reclamation of organic substances which 
are not used as solvents; R4, recycling/reclamation of metals and 
metal compounds; R5, recycling/reclamation of other inorganic 
materials; R6, regeneration of acids or bases; R7, recovery of 
components used for pollution abatement; R8, recovery of components 
used from catalysts; R9, used oil re-refining or other reuses of 
previously used oil; R10, land treatment resulting in benefit to 
agriculture or ecological improvement; and, R11, uses of residual 
materials obtained from any of the operations numbered R1-R10.
---------------------------------------------------------------------------

    When the notification document lists an R12/R13 recovery facility, 
we are proposing that the exporter must indicate in the same 
notification document the recovery facility or facilities where the 
subsequent R1-R11 recovery operation takes place or may take place.
    The R12/R13 recovery facility shall certify the receipt of the 
hazardous waste by sending a copy of the duly completed movement 
document within three (3) working days of the receipt of such wastes to 
the exporter and all competent authorities concerned. In addition, the 
R12/R13 recovery facility must retain the original movement document 
for three (3) years. Similarly, the R12/R13 recovery facility has to 
certify the completion of the R12/R13 recovery operation by submitting 
a certificate of recovery as soon as possible, but no later than thirty 
(30) days after the completion of the R12/R13 recovery operation at 
that facility and no later than one (1) calendar year following the 
receipt of the waste by the R12/R13 recovery facility. The R12/R13 
recovery facility must send the certificate of recovery to the exporter 
and to the competent authorities of the countries of export and import 
by either mail, e-mail followed by mail, or by fax followed by mail.
    The control procedures applied to transboundary movements of 
hazardous waste from an R12/R13 recovery facility to a subsequent R1-
R11 recovery facility vary depending on whether these facilities are 
located within the same Member country or in a different Member 
country.
    When the subsequent R1-R11 recovery facility is located within the 
same country, we are proposing that the R12/R13 recovery facility must 
obtain from the subsequent R1-R11 recovery facility a certification 
that the ``final'' recovery of the hazardous waste at that facility has 
been completed within one (1) calendar year following the delivery of 
the hazardous waste to the R1-R11 facility. The format of the 
certification of recovery is not fixed, but it must, at a minimum, 
identify the code number of the notification document and serial number 
of the movement documents to which it pertains. The R12/R13 recovery 
facility must then transmit the certification document prepared by the 
R1-R11 recovery facility to the competent authorities of the countries 
of import and export as soon as possible, but no later than one (1) 
calendar year following the delivery of the hazardous waste to the R1-
R11 recovery facility.
    When the subsequent R1-R11 facility is not located in the same 
Member country as the R12/R13 facility, we are proposing that a new 
notification must be made for the transboundary movement of hazardous 
waste by the R12/R13 recovery facility. The applicable procedures 
differ, however, depending upon the country where the final recovery 
operation occurs. In particular, if the final R1-R11 recovery facility 
is located in the initial country of export, then the normal Amber 
control procedures shall apply. In this case, the R12/R13 facility must 
submit a new notification document to its competent authority and 
obtain consent from its competent authority and from the initial 
country of export to the export of the hazardous waste back to that 
country for final recovery. If, however, the final R1-R11 recovery 
facility is located in a country different from the initial country of 
export, then the Amber control procedures shall also apply, but the 
movement will in effect be treated as a ``re-export'' of waste to a 
third country. In this case, not only is a new notification document 
required, but the competent authority of the initial country of export 
must also be notified of the transboundary movement, and consent must 
be obtained from the original country of export and the new countries 
of import,

[[Page 58399]]

export, and transit. For example, if a hazardous waste is exported from 
the United States to a R12/R13 facility in France, and then will be 
sent to a subsequent R1-R11 recovery facility in Germany, the R12/R13 
facility in France must submit a notification to and obtain consent 
from France (the new country of export), the United States (the 
original country of export) and Germany (the new country of import for 
final recovery).
    This proposed rule incorporates all of these requirements in Sec.  
262.82(f).
9. New Provisions Regarding Mixtures of Hazardous Wastes
    The Amended 2001 OECD Decision contains controls and provisions 
related to the mixture of hazardous waste. Specifically, the Amended 
2001 OECD Decision defines a mixture of hazardous waste as one that 
results from the intentional or unintentional mixing of two or more 
different hazardous wastes. However, under the Amended 2001 OECD 
Decision, a single shipment of hazardous wastes, consisting of two or 
more wastes, where each is separated, is not considered a mixture of 
hazardous waste.
    The Amended 2001 OECD Decision also provides that:
    <bullet> A mixture of two or more Green wastes should be subject to 
the Green control procedures. However, the regulated community should 
be aware that some OECD Member countries may require, by domestic law, 
that mixtures of different Green wastes be subject to the Amber control 
procedures.
    <bullet> A mixture consisting of a Green waste and more than a ``de 
minimis'' amount of Amber waste is subject to the Amber control 
procedures. In the absence of internationally accepted criteria, the 
term ``de minimis'' should be defined according to national regulations 
and procedures.
    <bullet> A mixture containing two or more Amber wastes is subject 
to the Amber control procedures.
    In this proposed rule, EPA has revised the text in Sec.  262.82(a) 
to clarify that only those wastes and waste mixtures considered 
hazardous under U.S. national regulations will be subject to the Amber 
control procedures within the United States. This is consistent with 
longstanding EPA policy, and should minimize confusion for the 
regulated community. For example, under the existing RCRA hazardous 
waste regulations, any mixture of an Amber waste that exhibits one or 
more of the hazardous characteristics of ignitability, corrosivity, 
reactivity, or toxicity under RCRA with a Green waste shall be 
considered an Amber waste if the mixture still exhibits one or more of 
the RCRA hazardous waste characteristics and, thus, be subject to the 
Amber control procedures. Conversely, if the resulting mixture no 
longer exhibits one or more of the RCRA hazardous characteristics, it 
will instead be considered a Green waste, and be subject to the Green 
control procedures.
    Because other OECD Member countries may require that the mixtures 
listed above (that the U.S. sometimes considers subject to the Green 
control procedures) be subject to Amber control procedures, the 
proposed rule includes notes stating that other OECD Member countries 
may subject such mixtures to the Amber control procedures. In such 
cases, U.S. importers and exporters should be prepared to follow the 
Amber control procedures within those OECD Member countries.
    Finally, the Amended 2001 OECD Decision requires that notification 
for a transboundary movement of a mixture of hazardous wastes falling 
under the Amber control procedures should be made by the person 
performing the mixing activity (the generator of the mixture) or any 
other person acting as an exporter in place of the person performing 
the mixing activity. In the notification, relevant information on each 
fraction of the waste, including its code numbers, has to be given in 
order of importance. This proposed rule would impose these 
requirements.
10. New Provisions Regarding the Return and Re-Export of Hazardous 
Wastes Subject to the Amber Control Procedures
    This proposed rule proposes to adopt the Amended 2001 OECD 
Decision's more precise provisions (than the earlier 1992 Decision) on 
measures to be taken in case a transboundary movement of hazardous 
waste that is subject to the Amber control procedures cannot be 
completed as intended (e.g., not in accordance with the notification, 
consents given by the competent authorities, or the terms of the 
contract). There may be a number of reasons for this non-completion, 
for example, an accident during the transport of the waste, improper 
notification, or any illegal action taken by someone involved with the 
movement of the hazardous waste.
    The Amended 2001 OECD Decision provides that if this uncompleted 
movement of hazardous waste (hereafter referred to as the 
``incident''), takes place in the country of import, the competent 
authority of that country shall immediately inform the competent 
authority of the country of export. The competent authorities of the 
concerned countries are to cooperate in resolving the incident by 
making all necessary arrangements to ensure the best alternative 
management of the hazardous waste. If alternative arrangements cannot 
be made to recover these wastes in an environmentally sound manner in 
the country of import, the hazardous waste must be returned to the 
country of export or re-exported to a third country.
(a) Return of Hazardous Waste to Country of Export
    Under the Amended 2001 OECD Decision, the return of the hazardous 
waste to the country of export is to take place within ninety (90) days 
from the time when the country of export was informed of the incident, 
or such other period of time to which all concerned countries agree. 
The competent authorities of both countries of export and transit (if 
applicable) are to be informed about the return of the hazardous waste 
and the reasons for its return. These authorities are prohibited from 
opposing or preventing the return of the hazardous waste to the country 
of export, so long as the movement complies with the requirements set 
out by the country of export's domestic law. If the waste is returned 
through a new country of transit, the competent authority of that 
country is to be notified and consent obtained in accordance with the 
normal Amber control procedures.
(b) Re-Export of Hazardous Waste From the Country of Import to a Third 
Country
    Under the Amended 2001 OECD Decision, the re-export from the 
country of import to a third country is considered a new transboundary 
movement of hazardous waste. As a result, the Amber control procedures 
are applicable. The initial importer becomes the new exporter and, 
consequently, assumes all responsibilities as an exporter. In addition, 
the notification must also include the competent authority of the 
initial country of export who, in accordance with the Amber control 
procedures, may object to the re-export if the movement does not comply 
with the requirements set out by its domestic law.
(c) Return of Hazardous Waste From Country of Transit to Country of 
Export
    If the incident takes place in the country of transit, the exporter 
should make arrangements so that the hazardous waste still can be 
recovered in an environmentally sound manner in the recovery facility 
of the importing country to where it was originally

[[Page 58400]]

destined. The competent authority of the country of transit is to 
immediately inform the competent authorities of the countries of export 
and import and any other countries of transit. If the exporter is 
unable to arrange for the recovery of the hazardous waste in an 
environmentally sound manner at the recovery facility to where it was 
originally destined, the hazardous waste should be returned, adhering 
to subsection (a) above, to the country of export within ninety (90) 
days from the time when the country of export was informed of the 
incident or such other period of time as the concerned countries agree. 
The competent authorities of the country of export and the countries of 
transit are to be informed of the return, but they are prohibited from 
opposing or preventing the return of the hazardous wastes to the 
country of export, so long as the movement complies with the 
requirements set out by the country of export's domestic law. This 
proposal sets forth these re-export and return provisions of the 
Amended 2001 OECD Decision in Sec. Sec.  262.82(c), 262.82(d), and 
262.82(e).
11. SLABs Are Now Covered by EPA's OECD Rule
    This proposed rule updates Sec.  262.80(a) to reflect that export 
shipments of SLABs being managed under 40 CFR part 266, subpart G that 
are destined for recovery in one of the OECD countries listed in Sec.  
262.58(a)(1) are subject to 40 CFR part 262, subpart H.
12. Technical Corrections to EPA's OECD Rule
    This proposed rule makes several technical corrections to EPA's 
current OECD rule, including corrections to capitalization, syntax, and 
punctuation errors. In these changes, EPA is not making any substantive 
revisions, but is seeking to eliminate any confusion on the part of the 
regulated community by striving for consistency both within the 
regulations and with the terms of the Amended 2001 OECD Decision. Some 
prevalent examples of these types of revisions include changing 
``Subpart'' to ``subpart,'' ``OECD member'' to ``OECD Member,'' and 
``thirty days'' to ``thirty (30) days.''
13. Change to the Submittal Address for Exception Reports
    This proposed rule amends the exception reporting requirements in 
Sec.  262.87(b) to specify that all exception reports are to be 
submitted to the Office of Enforcement and Compliance Assurance's 
Office of Federal Activities in Washington, DC rather than the 
Administrator.

D. Changes to 40 CFR 264.12(a)(2) and 40 CFR 265.12(a)(2)

    This proposed rule also amends Sec. Sec.  264.12(a)(2) and 
265.12(a)(2) by, among other things, requiring owners or operators of 
recovery facilities to submit a certificate of recovery as soon as 
possible after the recovery is completed, but no later than thirty (30) 
days after the completion of recovery and no later than one (1) 
calendar year following the receipt of the hazardous waste.

E. Changes to 40 CFR 264.71(a)(3) and 40 CFR 265.71(a)(3)

    This proposed rule also amends Sec. Sec.  264.71(a)(3) and 
265.71(a)(3) by requiring owners or operators of facilities receiving 
imported hazardous wastes to submit to EPA the written documentation of 
EPA's consent to the import along with a copy of the RCRA hazardous 
waste manifest for the shipment that they are currently required to 
submit to EPA within thirty (30) days of shipment delivery. This will 
enable EPA to match the individual shipment manifest to the consent for 
an annual notice from a foreign exporter.

F. Changes to 40 CFR 266.80(a)

    The existing regulations at 40 CFR part 266, subpart G, ``Spent 
Lead-Acid Batteries Being Reclaimed,'' exempt exporters of SLABs 
destined for reclamation from the export requirements of 40 CFR part 
262. EPA proposes to amend the table located at 40 CFR 266.80 by 
including two additional rows to the current table. These additional 
rows will effectively require that exporters and transporters of SLABs 
being sent to a foreign country for reclamation will need to meet the 
universal waste requirements concerning the export of SLABs for 
reclamation.
    Specifically, exporters would need to either comply with the 
requirements in 40 CFR part 262, subpart H when the shipments are 
destined to one of the OECD Member countries listed in Sec.  
262.58(a)(1), or with the following requirements when the shipments are 
destined for any country not listed in Sec.  262.58(a)(1):
    <bullet> Comply with the requirements applicable to a primary 
exporter in 40 CFR 262.53, 262.56(a)(1) through (4), (6), and (b) and 
262.57;
    <bullet> Export such SLABs only upon consent of the receiving 
country and in conformance with the EPA Acknowledgement of Consent as 
defined in subpart E of 40 CFR part 262 of this chapter; and
    <bullet> Provide a copy of the EPA Acknowledgment of Consent for 
the shipment to the transporter transporting the shipment for export.
    The transporter of SLABs being sent to a foreign country for 
reclamation would need to comply with the applicable requirements in 40 
CFR part 262, subpart H when the shipments are destined to one of the 
OECD Member countries listed in Sec.  262.58(a)(1). For export 
shipments of SLABs not destined for one of the OECD Member countries 
listed in Sec.  262.58(a)(1), the transporter would not be able to 
accept a shipment if the transporter knows the shipment does not 
conform to the EPA Acknowledgment of Consent, and would have to ensure 
that:
    <bullet> A copy of the EPA Acknowledgment of Consent accompanies 
the shipment; and
    <bullet> The shipment is delivered to the foreign facility 
designated by the person initiating the shipment.
    EPA proposes to amend the table located at 40 CFR 266.80 in order 
to ensure greater protection of human health and the environment 
through notification, tracking, and management of SLABs. In addition to 
harmonizing the RCRA hazardous waste regulations for SLABs with the 
notification and consent requirements in the RCRA universal waste 
rules, today's proposed rule would harmonize the export requirements 
for SLABs with the Amended 2001 OECD Decision and the Basel Convention. 
(Note that the exemption from the manifest requirements for exporters 
and transporters of SLABs for reclamation will continue to remain in 
effect.)
    The table located at 40 CFR 266.80 describes the various kinds of 
SLAB handlers and their respective legal requirements. Some SLAB 
handlers may find that more than one description located in the table 
applies to their SLAB management activities. It is the SLAB handler's 
responsibility to read all seven descriptions and carefully consider 
any and all requirements which may apply.
1. Export Shipments of SLABs to OECD Member Countries
    We are proposing that exporters and transporters of SLABs destined 
for reclamation in one of the OECD Member countries listed in Sec.  
262.58(a)(1) would have to comply with all applicable sections of 40 
CFR part 262, subpart H for wastes subject to the Amber control 
procedures. For a complete listing of the proposed requirements, 
exporters and transporters should consult the regulatory text for 40 
CFR part 262, subpart H in this proposal. In addition

[[Page 58401]]

to the proposed changes to subpart H discussed in earlier sections, the 
applicable Amber control procedures include, but are not limited to, 
the following:
(a) Notification of Intent To Export
    Exporters of SLABs destined for reclamation would be required to 
comply with the Amber control procedures in Sec.  262.83. Under the 
Amber control procedures, an exporter must submit a complete 
notification of its intent to export to EPA at least 45 days before the 
export is scheduled to leave the United States (or at least ten days if 
the shipment is going to a pre-approved facility in the country of 
import). The notification can cover export activities spanning a period 
of up to and including 12 months (or up to three years if the shipment 
is going to a pre-approved facility in the country of import).
    A complete notification includes, but is not limited to:
    <bullet> Contact information and EPA ID number (if applicable) for 
the exporter;
    <bullet> Point of departure from country of export;
    <bullet> A waste description and quantity of the hazardous waste 
being exported;
    <bullet> The RCRA waste code(s) (if applicable), United Nations 
number, and OECD waste code for the hazardous waste (SLABs are 
classified as Amber waste A1160 under the Amended 2001 OECD Decision);
    <bullet> Planned mode(s) of transportation;
    <bullet> Contact information for all intended transporters;
    <bullet> Contact information and the OECD recovery operation 
code(s) (e.g., R1-R13) for both the importer and the final recovery 
facility (if different sites);
    <bullet> The requested period of exportation;
    <bullet> A list of all transit countries, along with points of 
entry and departure, through which the hazardous waste will be sent, 
and
    <bullet> A certification by the exporter that a contract or chain 
of contracts or equivalent arrangements among all parties to the 
proposed shipment are in place and are legally enforceable in all 
concerned countries.
    If the notification is complete, EPA will forward it to the 
importing country and any transit country(ies). Within three working 
days of receiving the notification, the importing country must send 
either an Acknowledgement of Receipt or a list of items that the 
notification lacks directly to U.S. EPA, to the exporter, and to any 
countries of transit. The countries of import and transit have thirty 
(30) days from the date on the Acknowledgement of Receipt (seven days 
for shipments going to pre-approved facilities) to object or consent 
explicitly to the proposed shipment. Any explicit objection or consent 
by the country of import or transit will be sent simultaneously to U.S. 
EPA, the exporter, and any other interested country (e.g., of import or 
transit). If no objections are submitted within the thirty day (30) 
period (seven days for shipments going to pre-approved facilities), 
under the provisions of the Amended 2001 OECD Decision, tacit (or 
implied) consent is assumed and the movement of the hazardous wastes 
may commence.
(b) Shipment Tracking
    Under Sec.  262.84, export shipments of SLABs must be accompanied 
by a movement document from the initiation of the shipment until it 
reaches the final recovery facility. Exporters must provide the initial 
transporter with the movement document. Transporters are prohibited 
from accepting a shipment of SLABs without such a movement document, 
and are required to ensure that the movement document accompanies the 
shipment from the initiation of the shipment until it reaches the final 
recovery facility. The movement document must include all the 
information from the notification and the following:
    <bullet> Date movement commenced;
    <bullet> Name (if not the exporter), address, telephone and fax 
numbers, and e-mail of person originating the movement document (Note 
that this person is equivalent to the primary exporter under 40 CFR 
part 262, subpart E);
    <bullet> Company name and EPA ID number (if applicable) of all 
transporters;
    <bullet> Identification (license, registered name or registration 
number) of means of transport, including types of packaging envisaged;
    <bullet> Any special precautions to be taken by transporter(s) 
during transportation;
    <bullet> Certification/declaration signed by the exporter that no 
objection to the shipment has been lodged; and
    <bullet> Appropriate signatures for each custody transfer (e.g., 
transporter, importer, and owner or operator of the recovery facility).
(c) Annual Reporting
    Under Sec.  262.87(a), any person exporting SLABs who meets the 
definition of primary exporter in Sec.  262.51 or who initiates the 
movement documentation under Sec.  262.84 will have to submit to the 
Office of Enforcement and Compliance Assurance's Office of Federal 
Activities in Washington, DC, an annual report summarizing the types, 
quantities, frequency, and ultimate destination of all SLABs exported 
during the previous calendar year. Reports are due by March 1st of 
every year.
(d) Exception Reporting
    Under Sec.  262.87(b), any person exporting SLABs who meets the 
definition of primary exporter in Sec.  262.51 or who initiates the 
movement documentation under Sec.  262.84 must file an exception report 
with the Office of Enforcement and Compliance Assurance, Office of 
Federal Activities, International Compliance Assurance Division 
(2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460, if any of the following occurs:
    <bullet> He has not received a copy of the RCRA hazardous waste 
manifest signed by the transporter and noting the date and point of 
departure of the waste from the United States, within forty-five (45) 
days from the date it was accepted by the initial transporter;
    <bullet> Within ninety (90) days from the date the waste was 
accepted by the initial transporter, the exporter has not received 
written confirmation from the recovery facility that the hazardous 
waste was received;
    <bullet> The waste is returned to the United States.
(e) Recordkeeping
    Under Sec.  262.87(c), any person exporting SLABs who meets the 
definition of primary exporter in Sec.  262.51 or who initiates the 
movement documentation under Sec.  262.84 must keep the following 
records:
    <bullet> A copy of each notification of intent to export and all 
written consents obtained from the competent authorities of countries 
concerned (e.g., export, transit, and import) for a period of at least 
three (3) years from the date the hazardous waste was accepted by the 
initial transporter;
    <bullet> A copy of each annual report for a period of at least 
three (3) years from the due date of the report;
    <bullet> A copy of any exception reports and a copy of each 
confirmation of delivery (i.e., movement documentation) sent by the 
recovery facility to the exporter for at least three (3) years from the 
date the hazardous waste was accepted by the initial transporter or 
received by the recovery facility, whichever is applicable; and
    <bullet> A copy of each confirmation of recovery sent by the 
recovery facility to the exporter for at least three (3) years from the 
date that the recovery facility completed the processing of the SLAB 
shipment.

[[Page 58402]]

2. Export Shipments of SLABs to Countries Not Listed in Sec.  
262.58(a)(1)
(a) Notification of Intent To Export
    We are proposing that exporters of SLABs destined for reclamation 
in countries not listed in Sec.  262.58(a)(1) would be required to 
comply with the primary exporter notification requirements in Sec.  
262.53, and export the SLABs only upon consent of the receiving country 
and in conformance with the EPA Acknowledgement of Consent, as defined 
in 40 CFR part 262, subpart E. Specifically, the exporter would have to 
submit a complete notification of its intent to export to EPA at least 
60 days before the export is scheduled to leave the United States. The 
notification can cover export activities spanning a period of up to and 
including 12 months. This complete notification contains:
    <bullet> Contact information and EPA ID number (if applicable) for 
the primary exporter;
    <bullet> A description and quantity of the SLABs to be exported;
    <bullet> The RCRA waste code(s) (if applicable), U.S. DOT proper 
shipping name, hazard class, and United Nations number as identified in 
49 CFR parts 171 through 177;
    <bullet> Planned mode(s) of transportation and type(s) of 
containers;
    <bullet> A description of the manner in which the SLABs will be 
treated, stored, or disposed of (including recovery) in the receiving 
country;
    <bullet> The planned frequency and time period of exportation;
    <bullet> A list of all transit countries through which the SLABs 
will be sent, and a description of the approximate length of time the 
hazardous waste will remain in each country and the nature of its 
handling while there;
    <bullet> All points of entry to and departure from each foreign 
country through which the SLABs will pass; and
    <bullet> The name and site address of the consignee \15\ and any 
alternate consignee.
---------------------------------------------------------------------------

    \15\ As noted previously, this is equivalent to ``importer'' in 
the proposed revisions to 40 CFR part 262, subpart H.
---------------------------------------------------------------------------

    If after proper notification, the receiving country consents to the 
receipt of the hazardous waste, EPA will forward an EPA Acknowledgment 
of Consent to the exporter. If, on the other hand, the receiving 
country objects to the receipt of the hazardous waste or withdraws a 
prior consent, EPA will notify the exporter in writing. EPA will also 
notify the exporter of any responses from transit countries.
(b) Shipment Documentation and Tracking
    We are proposing that exporters of SLABs must provide a copy of the 
EPA Acknowledgment of Consent for the SLAB shipment to the transporter 
transporting the shipment for export. Transporters are prohibited from 
accepting a SLAB export shipment if the transporter knows the shipment 
does not conform to the EPA Acknowledgment of Consent. In addition the 
transporter must ensure that:
    <bullet> A copy of the EPA Acknowledgment of Consent accompanies 
the SLAB export shipment; and
    <bullet> The SLAB export shipment is delivered to the facility 
designated by the person initiating the shipment.
    Unlike SLAB export shipments that must comply with 40 CFR part 262, 
subpart H, SLAB export shipments destined for countries not listed in 
Sec.  252.58(a)(1) do not have any shipment tracking documentation 
requirements or exception reporting requirements because SLAB shipments 
are exempt from the RCRA hazardous waste manifest requirements.
(c) Annual Reporting
    We are proposing that exporters of SLABs must follow the 
requirements applicable to a primary exporter detailed in Sec.  262.56 
``Annual reports'' (a)(1) through (4), (6), and (b). Specifically, 
exporters will have to file with the EPA Administrator an annual report 
summarizing the types, quantities, frequency, and ultimate destination 
of all SLABs exported during the previous calendar year. Reports are 
due by March 1st of every year.
(d) Recordkeeping
    Under Sec.  262.57, we are proposing that exporters of SLABs must 
keep the following records:
    <bullet> A copy of each notification of intent to export for at 
least three years from the date the SLAB export shipment was accepted 
by the initial transporter;
    <bullet> A copy of each EPA Acknowledgment of Consent for at least 
three years from the date the SLAB export shipment was accepted by the 
initial transporter;
    <bullet> A copy of each confirmation of delivery of the SLAB 
shipment from the consignee for at least three years from the date the 
SLAB export shipment was accepted by the initial transporter; and
    <bullet> A copy of each annual report for at least three years from 
the due date of the report.

G. Changes to 40 CFR 271.1

    This proposed rule amends Table 1 and Table 2 of Sec.  271.1 by 
adding references to the revisions which amend 40 CFR part 262, subpart 
E to reflect that subpart E implements the Hazardous and Solid Waste 
Amendments of 1984.

IV. Costs and Benefits of the Proposed Rule

A. Introduction

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. The Agency's economic 
assessment conducted in support of this proposed action evaluates 
costs, cost savings, benefits, and other impacts, such as environmental 
justice, children's health, unfunded mandates, regulatory takings, and 
small entity impacts. To conduct this analysis, we developed and 
implemented a methodology for examining impacts, and followed 
appropriate guidelines and procedures for examining equity 
considerations, children's health, and other impacts.

B. Analytical Scope

    This analysis assesses the proposed integration of various OECD 
Council Decisions into existing U.S. regulations governing shipments 
(export/import/transit) of hazardous wastes destined for recovery 
between the U.S. and other OECD Member countries. In addition, we 
assess the newly proposed export regulations for SLABs to OECD and non-
OECD countries. Also incorporated into the analysis is the proposed 
requirements that importers of hazardous waste subject to 40 CFR part 
262, subpart F, provide to the initial transporter documentation 
necessary to confirm EPA's consent to the import to accompany such 
manifested import shipments, and that the receiving facility submit to 
EPA a copy of that documentation when it submits to EPA the RCRA 
hazardous waste manifest for the import shipment. Finally, this action 
proposes a revision to the current language in Sec. Sec.  262.55 and 
262.87(b) that will require exception reports to be submitted directly 
to the Director, International Compliance and Assurance Division 
(ICAD), of the Office of Enforcement and Compliance Assurance (OECA), 
EPA Headquarters, rather than to the EPA Administrator. There is no 
discernable cost impact associated with this proposed requirement for 
exception reports to be submitted directly to the Director.
    First, we assess all potential cost impacts (positive and negative) 
of the

[[Page 58403]]

proposed revisions to the OECD rule, including:
    <bullet> Exemptions for wastes destined for laboratory analyses,
    <bullet> The requirement to provide a certificate of recovery,
    <bullet> Information collection requirements associated with 
exchange and accumulation recovery operations, and
    <bullet> The notification requirements related to the return of 
wastes.
    Next, we assess all potential cost impacts (positive and negative) 
of the proposed revisions to the SLAB regulations, including:
    <bullet> Notification requirements for SLAB exporters,
    <bullet> The renotification requirements associated with any 
changes to the original SLAB export notification,
    <bullet> The annual reporting requirements,
    <bullet> Additional reporting requirements (if requested by EPA), 
and
    <bullet> SLAB exporter recordkeeping requirements.
    Finally, we analyze the proposed requirements that importers of 
hazardous waste subject to 40 CFR part 262, subpart F, provide to the 
initial transporter documentation necessary to confirm EPA's consent to 
the import to accompany such manifested import shipments, and that the 
receiving facility submit to EPA a copy of that documentation when it 
submits to EPA the RCRA hazardous waste manifest for the import 
shipment.
    We also include an estimate for potentially affected entities to 
read the regulation, which is, by default, a necessary requirement for 
understanding the regulation. Cost impacts associated with reading the 
regulation are assessed for exporters, importers, and transporters.

C. Cost Impacts

    The total incremental cost for the OECD portion of the proposed 
rule during the first year of implementation (i.e., including reading 
the rule) is estimated to be $14,472. This is a net impact estimate 
that includes a total net incremental cost increase to the regulated 
community of $13,634, and a total net cost increase to EPA of $838. The 
total incremental annual net cost for the OECD portion after the first 
year of implementation (i.e., excluding reading the rules) is estimated 
to be $9,678.
    The total incremental cost for the SLAB portion of the proposed 
rule during the first year of implementation (i.e., including reading 
the rule) is estimated at $851,000. The first year total incremental 
cost is expected to be about $780,000 for the affected U.S. industry 
and about $71,000 for EPA. The total incremental annual cost after the 
first year of implementation (i.e., excluding reading the rules) is 
estimated to be $404,000.
    The combined total cost of the proposed rule (OECD portion, plus 
SLAB portion, plus import consent documentation portion) is estimated 
at $919,000 for the first year. Approximately 92.5% of this total is 
attributable to the SLAB portion of the proposal, followed by the EPA 
import consent documentation requirements representing about 5.9% of 
the total. The OECD portion accounts for about 1.6% of the total first 
year cost of the proposal. After the first year, the total incremental 
cost of the proposed rulemaking, omitting the cost of reading the 
rules, is estimated at $468,000.
    Cost estimates presented in this section are based on our estimates 
for the number of potentially affected importers, exporters, and 
transporters. Numerous data sources were used in the derivation of 
these estimates, including: RCRAInfo, the Waste International Tracking 
System (WITS), industry consultations, the Biennial Report, the 
International Trade Commission (ITC), Environment Canada, and SEMARNAT 
\16\ data. A full explanation of the data sources, analytical 
methodology, assumptions, and limitations associated with the findings 
presented above is presented in our Cost Assessment \17\ document 
prepared in support of this proposed action. This document is available 
in the docket. Interested stakeholders are encouraged to read and 
comment on the analysis and findings presented in this document.
---------------------------------------------------------------------------

    \16\ Secretar[iacute]a de Medio Ambiente y Recursos Naturales 
(SEMARNAT).
    \17\ Cost Assessment for the Proposed Rule on Exports and 
Imports of Hazardous Waste Destined for Recovery Among OECD 
Countries and Exports of Spent Lead-Acid Batteries from the U.S.
---------------------------------------------------------------------------

D. Benefits

    We have prepared a qualitative assessment of the benefits 
anticipated from this action. Overall, this action is expected to 
result in improved regulatory efficiency of the affected materials, 
while ensuring improved data collection and enhanced enforcement 
capabilities. Specific benefits include the following:
    <bullet> The U.S. would meet its legal obligations to implement the 
Amended 2001 OECD Decision.
    <bullet> Increased regulatory efficiency by implementing provisions 
in the Amended 2001 OECD Decision that were meant to clarify the scope 
of control and make the control procedures more precise.
    <bullet> Helping to improve market efficiency by allowing exporters 
to ship wastes more quickly and store for shorter periods of time.
    <bullet> Encouraging the environmentally sound recovery of 
hazardous wastes, thereby reducing the risks associated with treatment 
and disposal.
    <bullet> Providing for the improved ability to acquire information 
regarding the quantities of SLABs exported from the U.S. and the 
destination facilities to which the SLABs are exported.

V. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer their own hazardous waste programs in lieu of the federal 
program within the State. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized States have primary enforcement responsibility. The 
standards and requirements for State authorization are found at 40 CFR 
part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a State with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that State. The federal requirements no longer 
applied in the authorized State, and EPA could not issue permits for 
any facilities in that State, since only the State was authorized to 
issue RCRA permits. When new, more stringent federal requirements were 
promulgated, the State was obligated to enact equivalent authorities 
within specified time frames. However, the new federal requirements did 
not take effect in an authorized State until the State adopted the 
federal requirements as State law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized States at the same time that they 
take effect in unauthorized States. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized States, 
including the issuance of permits, until the State is granted 
authorization to do so. While States must still adopt HSWA related 
provisions as State law to retain final authorization, EPA implements 
the HSWA provisions in authorized States until the States do so.
    Authorized States are required to modify their programs only when 
EPA

[[Page 58404]]

enacts federal requirements that are more stringent or broader in scope 
than existing federal requirements. RCRA section 3009 allows the States 
to impose standards more stringent than those in the federal program 
(see also 40 CFR 271.1). Therefore, authorized States may, but are not 
required to, adopt federal regulations, both HSWA and non-HSWA, that 
are considered less stringent than previous federal regulations.

B. Effect on State Authorization

    Because of the Federal government's special role in matters of 
foreign policy, EPA cannot authorize States to administer Federal 
import/export functions in any section of the RCRA hazardous waste 
regulations. This promotes national coordination, uniformity and the 
expeditious transmission of information between the United States and 
foreign countries. Although States do not receive authorization to 
administer the Federal government's functions in subparts E or F, in 
accordance with 271.10, the State program must include requirements 
respecting international shipments equivalent to those at subparts E 
and F. States are also not authorized to administer the Federal 
government's functions in subpart H, but in this case, States are not 
required to adopt those provisions. However, EPA would encourage States 
to incorporate all the import and export related requirements into 
their regulations for the convenience of the regulated community and 
for completeness, particularly where a State has already incorporated 
40 CFR part 262, subparts E, F and H, the import manifest submittal 
requirements in 264.71(a)(3) and 265.71(a)(3), or the domestic 
management provisions for SLABs in 40 CFR part 266, subpart G. If or 
when a State chooses to adopt these import/export provisions, when 
final, care should be taken not to replace Federal or international 
references with State terms. Moreover, if finalized, the provisions of 
today's notice would take effect in all States upon the effective date 
of the final rule.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' This action may 
raise novel legal or policy issues [3(f)(4)] arising out of legal 
mandates, although it is not economically significant. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866. Any changes made in response to OMB's 
recommendations have been documented in the docket for this action.
    This rule, as proposed, is projected to result in a net increase in 
costs to certain importers, exporters, and transporters of affected 
hazardous wastes. Increased costs are also projected for the federal 
government. The total net cost of this proposal is estimated to be 
$919,000 during the first year following rule implementation. Exporters 
are projected to account for approximately 68 percent of this total. 
Benefits of this action include the U.S. meeting its legal obligations 
to implement the Amended 2001 OECD Decision, increased regulatory 
efficiency, reduced risks associated with the treatment and disposal of 
hazardous wastes, and improved data collection.
    The total net cost estimate for this proposal is significantly 
below the $100 million threshold \18\ established under part 3(f)(1) of 
the Order. Thus, this proposal is not considered to be an economically 
significant action. However, in an effort to comply with the spirit of 
the Order, we have prepared an economic assessment \19\ in support of 
this proposed rule. The RCRA docket established for today's rulemaking 
maintains a copy of this document for public review. Interested persons 
are encouraged to read and comment on this document.
---------------------------------------------------------------------------

    \18\ This $100 million threshold applies to both costs, and cost 
savings.
    \19\ Cost Assessment for the Proposed Rule on Exports and 
Imports of Hazardous Waste Destined for Recovery Among OECD 
Countries and Exports of Spent Lead-Acid Batteries from the U.S. 
(Cost Assessment).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 2308.01.
    The proposal requires that the affected sources submit the 
following:
    <bullet> Under the proposed OECD revisions: U.S. recovery 
facilities will have to submit a certificate of recovery to the foreign 
exporter, and to the competent authority of the country of export and 
EPA, as soon as possible, but no later than thirty (30) days after the 
completion of recovery and no later than one (1) calendar year 
following receipt of waste; U.S. facilities that exchange or accumulate 
the waste shipments (e.g., R12/R13 facilities) before final recovery at 
another facility (e.g., R1-R11 facilities) will have to prepare and 
provide a certificate of recovery for R12/R13 recovery operations, and 
provide and maintain a copy of the certificate of recovery for the 
subsequent R1-R11 recovery operations; U.S. recovery facilities that 
cannot complete the intended recovery and must re-export or otherwise 
return the hazardous waste shipment will have to submit new 
notification documents and comply with the associated Amber control 
procedures; and U.S. exporters will have to keep records of the 
additional certifications of recovery and any R12/R13 certifications 
they receive from recovery facilities in other OECD countries.
    <bullet> Under the proposed SLAB revisions: SLAB exporters will 
have to: Comply with the full subpart H requirements if going to 
countries listed in Sec.  262.58(a)(1) (e.g., submitting notices, 
originating a movement document for each shipment, keeping records of 
all confirmations of receipt and recovery they receive, submitting 
exception reports and annual reports, and recordkeeping); and comply 
with portions of the subpart E requirements if going elsewhere (e.g., 
submitting notices, providing a copy of EPA's Acknowledgement of 
Consent for each shipment, submitting annual reports and 
recordkeeping).
    <bullet> Under the proposed import documentation revisions: U.S. 
receiving facilities will have to submit to EPA copies of documentation 
confirming EPA's consent to the import each time they submit to EPA a 
copy of the RCRA hazardous waste manifest for each hazardous waste 
import shipment within thirty (30) days of shipment delivery.
    All affected sources will have to retain records of this paperwork 
for a period of three years, which is consistent with the RCRA 
hazardous waste requirements of Sec. Sec.  262.53, 262.56, 262.57, 
262.83, 262.87, 264.71 and 265.71. The collection of the requested 
information is mandatory, as it is needed by EPA as a part of its 
overall compliance and enforcement program for the protection of human 
health and the environment.
    The estimated annual public reporting burden for the new paperwork 
requirements in the proposed rule is approximately 4.62 hours/year per 
respondent under the proposed OECD revisions; 20.73 hours/year per 
respondent under the proposed SLAB revisions; and 9.15 hours/year per

[[Page 58405]]

respondent under the proposed import consent documentation. The annual 
public recordkeeping burden is estimated to average 10.20 hours/year 
per respondent under the proposed OECD revisions, and 0.25 hours/year 
per respondent under the proposed SLAB revisions. The total annual 
public burden is estimated to be 15,077 hours and $840,500 during the 
first year of implementation, and 9,024 hours and $389,600 after the 
first year. The capital and start-up plus total operation and 
maintenance costs are expected to be negligible. Burden is defined at 5 
CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, EPA has established a public docket for 
this rule, which includes this ICR, under Docket ID number EPA-HQ-RCRA-
2005-0018. Submit any comments related to the ICR to EPA and OMB. See 
ADDRESSES section at the beginning of this notice for where to submit 
comments to EPA. Send comments to OMB at the Office of Information and 
Regulatory Affairs, Office of Management and Budget, 725 17th Street, 
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is 
required to make a decision concerning the ICR between 30 and 60 days 
after October 6, 2008, a comment to OMB is best assured of having its 
full effect if OMB receives it by November 5, 2008. The final rule will 
respond to any OMB or public comments on the information collection 
requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities. The primary 
purpose of the regulatory flexibility analyses is to identify and 
address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities,'' (5 U.S.C. 603 and 
604). Thus, an agency may certify that a rule will not have a 
significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule.
    We have determined that a substantial number of potentially 
affected small businesses (importers, exporters, and transporters) will 
not experience significant negative economic impacts. For the purpose 
of our impact analyses, small business is defined either by the number 
of employees or by the dollar amount of sales. The level at which a 
business is considered small is determined for each North American 
Industrial Classification System (NAICS) code by the Small Business 
Administration. No small governmental jurisdiction or small not-for-
profit organizations are expected to be affected by this action, as 
proposed.
    While a significant number of exporters may be small businesses, 
the results of our analysis indicate that the cost to individual small 
entities in each potentially affected sector (as identified by NAICS 
codes) is likely to be insignificant. Our analysis specifically 
examined the potentially impacted small companies with fewer than 20 
employees. The average annual gross sales of these companies were found 
to range from $0.4 million to $4.1 million, depending upon NAICS 
sector. The annual compliance costs for these companies, as a 
percentage of average annual gross sales, was found to range from 0.01 
percent to 0.08 percent.
    The reader is encouraged to review our regulatory flexibility 
screening analysis prepared in support of this determination. This 
analysis is incorporated into the Cost Assessment, which is available 
in the docket established for this proposal. We continue to be 
interested in the potential impacts of the proposed rule on small 
entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This proposal contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments, or the private sector, in large part because the UMRA does 
not apply to rules that are necessary for the national security or the 
ratification or implementation of international treaty obligations 
(e.g., the

[[Page 58406]]

Amended 2001 OECD Decision). In any event, EPA has determined that this 
rule, as proposed, does not contain a Federal mandate that may result 
in expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
The total cost impacts of this proposed action are estimated to be 
$919,000 during the first year, and approximately $468,000 per year 
thereafter.
    Finally, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Small governments are not affected by this action, as 
proposed.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This proposed rule does not have 
Federalism implications because the State and local governments do not 
administer the export and import requirements under RCRA. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. No 
Tribal governments are known to own or operate businesses that may be 
affected by this proposal. Thus, Executive Order 13175 does not apply 
to this proposed rule. EPA specifically solicits additional comment on 
our determination under this Order and on this proposed rule from 
tribal officials.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), applies to any rule that: (1) Is determined to be ``economically 
significant'' as defined under Executive Order 12866, and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866, 
and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children residing in the United States.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule is not a ``significant energy action'' as 
defined in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.
    This rule, as proposed, will not seriously disrupt energy supply, 
distribution patterns, prices, imports or exports. In fact, this 
proposed rule is designed to improve regulatory efficiency and improve 
information collection, in part by implementing technical corrections 
and clarifications to the existing regulations.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and/or adverse human health or environmental 
effects on minority or low-income populations because it does not 
directly affect the level of protection provided to human health or the 
environment. This proposal is designed to improve regulatory efficiency 
and improve information collection, in part by implementing technical 
corrections and clarifications to the existing regulations.

List of Subjects

40 CFR Part 262

    Environmental protection, Exports, Hazardous materials 
transportation, Hazardous waste, Imports, International organizations, 
Labeling, Packaging and containers, Recycling, Reporting and 
recordkeeping requirements.

[[Page 58407]]

40 CFR Part 264

    Environmental protection, Hazardous waste, Imports, Packaging and 
containers, Reporting and recordkeeping requirements.

40 CFR Part 265

    Environmental protection, Hazardous waste, Imports, Packaging and 
containers, Reporting and recordkeeping requirements.

40 CFR Part 266

    Environmental protection, Exports, Spent Lead-Acid Batteries, 
Recycling, Waste treatment and disposal.

40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Hazardous materials transportation, Hazardous waste, Intergovernmental 
relations, Penalties, Reporting and recordkeeping requirements.

    Dated: September 19, 2008.
Stephen L. Johnson,
Administrator.

    For the reasons stated in the preamble, title 40, chapter 1 of the 
Code of Federal Regulations is proposed to be amended as follows.

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

    2. 262.55 is amended by revising the introductory text to read as 
follows:


Sec.  262.55  Exception reports.

    In lieu of the requirements of Sec.  262.42, a primary exporter 
must file an exception report with the Office of Enforcement and 
Compliance Assurance, Office of Federal Activities, International 
Compliance Assurance Division (2254A), Environmental Protection Agency, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460, if any of the 
following occurs:
* * * * *
    3. Section 262.58 is revised to read as follows:


Sec.  262.58  International agreements.

    (a) Any person who exports or imports hazardous waste subject to 
the Federal manifest requirements of part 262, or subject to the 
universal waste management standards of 40 CFR part 273, or subject to 
State requirements analogous to 40 CFR part 273, or exports spent lead-
acid batteries subject to the spent lead-acid battery management 
standards of 40 CFR part 266, subpart G or subject to State 
requirements analogous to 40 CFR part 266, subpart G, to or from 
designated Member countries of the Organization for Economic 
Cooperation and Development (OECD) as defined in paragraph (a)(1) of 
this section for purposes of recovery is subject to subpart H of this 
part. The requirements of subparts E and F of this part do not apply to 
such exports and imports.
    (1) For the purposes of subpart H, the designated OECD Member 
countries consist of Australia, Austria, Belgium, the Czech Republic, 
Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, 
Italy, Japan, Luxembourg, the Netherlands, New Zealand, Norway, Poland, 
Portugal, the Slovak Republic, South Korea, Spain, Sweden, Switzerland, 
Turkey, the United Kingdom, and the United States.
    (2) For the purposes of subpart H of this part, Canada and Mexico 
are considered OECD Member countries only for the purpose of transit.
    (b) Any person who exports hazardous waste to or imports hazardous 
waste from: A designated OECD Member country for purposes other than 
recovery (e.g., incineration, disposal), Mexico (for any purpose), or 
Canada (for any purpose) remains subject to the requirements of 
subparts E and F of this part, and is not subject to the requirements 
of subpart H of this part.
    4. Section 262.60(e) is revised to read as follows:
* * * * *
    (e) The importer must provide the transporter with an additional 
copy of the manifest and documentation confirming EPA's consent to the 
import of hazardous waste to be submitted by the receiving facility to 
U.S. EPA in accordance with Sec.  264.71(a)(3) and Sec.  265.71(a)(3) 
of this chapter.
    5. Subpart H is revised to read as follows:
Subpart H--Transboundary Movements of Hazardous Waste for Recovery 
Within the OECD
Sec.
262.80 Applicability.
262.81 Definitions.
262.82 General conditions.
262.83 Notification and consent.
262.84 Movement document.
262.85 Contracts.
262.86 Provisions relating to recognized traders.
262.87 Reporting and recordkeeping.
262.88 Pre-approval for U.S. recovery facilities [Reserved].
262.89 OECD waste lists.

Subpart H--Transboundary Movements of Hazardous Waste for Recovery 
Within the OECD


Sec.  262.80  Applicability.

    (a) The requirements of this subpart apply to imports and exports 
of wastes that are considered hazardous under U.S. national procedures 
and are destined for recovery operations in the countries listed in 
Sec.  262.58(a)(1). A waste is considered hazardous under U.S. national 
procedures if it meets the Federal definition of hazardous waste in 40 
CFR 261.3 and it is subject to either the Federal manifesting 
requirements at 40 CFR part 262, subpart B, to the universal waste 
management standards of 40 CFR part 273 or to State requirements 
analogous to 40 CFR part 273, or for exports only, if the waste is 
subject to 40 CFR part 266, subpart G or to State requirements 
analogous to 40 CFR part 266, subpart G.
    (b) Any person (exporter, importer, or recovery facility operator) 
who mixes two or more wastes (including hazardous and non-hazardous 
wastes) or otherwise subjects two or more wastes (including hazardous 
and non-hazardous wastes) to physical or chemical transformation 
operations, and thereby creates a new hazardous waste, becomes a 
generator and assumes all subsequent generator duties under RCRA and 
any exporter duties, if applicable, under this subpart.


Sec.  262.81  Definitions.

    The following definitions apply to this subpart.
    (a) Competent authority means the regulatory authority or 
authorities of concerned countries having jurisdiction over 
transboundary movements of wastes destined for recovery operations.
    (b) Countries concerned means the OECD Member countries of export 
or import and any OECD Member countries of transit.
    (c) Country of export means any designated OECD Member country 
listed in Sec.  262.58(a)(1) from which a transboundary movement of 
hazardous wastes is planned to be initiated or is initiated.
    (d) Country of import means any designated OECD Member country 
listed in Sec.  262.58(a)(1) to which a transboundary movement of 
hazardous wastes is planned or takes place for the purpose of 
submitting the wastes to recovery operations therein.
    (e) Country of transit means any designated OECD Member country 
listed in Sec.  262.58(a)(1) and (a)(2) other than the country of 
export or country of import across which a transboundary

[[Page 58408]]

movement of hazardous wastes is planned or takes place.
    (f) Exporter means the person under the jurisdiction of the country 
of export who has, or will have at the time the planned transboundary 
movement commences, possession or other forms of legal control of the 
wastes and who proposes transboundary movement of the hazardous wastes 
for the ultimate purpose of submitting them to recovery operations. 
When the United States (U.S.) is the country of export, exporter is 
interpreted to mean a person domiciled in the United States.
    (g) Importer means the person to whom possession or other form of 
legal control of the waste is assigned at the time the waste is 
received in the country of import.
    (h) OECD area means all land or marine areas under the national 
jurisdiction of any OECD Member country listed in Sec.  262.58. When 
the regulations refer to shipments to or from an OECD Member country, 
this means OECD area.
    (i) OECD means the Organization for Economic Cooperation and 
Development.
    (j) OECD Decision means the OECD ``Decision of the Council 
C(2001)107/FINAL, Concerning the Control of Transboundary Movements of 
Wastes Destined for Recovery Operations, as Amended by C(2004)20.''
    (k) Recognized trader means a person who, with appropriate 
authorization of countries concerned, acts in the role of principal to 
purchase and subsequently sell wastes; this person has legal control of 
such wastes from time of purchase to time of sale; such a person may 
act to arrange and facilitate transboundary movements of wastes 
destined for recovery operations.
    (l) Recovery facility means a facility which, under applicable 
domestic law, is operating or is authorized to operate in the country 
of import to receive wastes and to perform recovery operations on them.
    (m) Recovery operations means activities leading to resource 
recovery, recycling, reclamation, direct re-use or alternative uses, 
which include:

R1 Use as a fuel (other than in direct incineration) or other means to 
generate energy
R2 Solvent reclamation/regeneration
R3 Recycling/reclamation of organic substances which are not used as 
solvents
R4 Recycling/reclamation of metals and metal compounds
R5 Recycling/reclamation of other inorganic materials
R6 Regeneration of acids or bases
R7 Recovery of components used for pollution abatement
R8 Recovery of components used from catalysts
R9 Used oil re-refining or other reuses of previously used oil
R10 Land treatment resulting in benefit to agriculture or ecological 
improvement
R11 Uses of residual materials obtained from any of the operations 
numbered R1-R10
R12 Exchange of wastes for submission to any of the operations numbered 
R1-R11
R13 Accumulation of material intended for any operation numbered R1-R12

    (n) Transboundary movement means any movement of wastes from an 
area under the national jurisdiction of one OECD Member country to an 
area under the national jurisdiction of another OECD Member country.


Sec.  262.82  General conditions.

    (a) Scope. The level of control for exports and imports of waste is 
indicated by assignment of the waste to either a list of wastes subject 
to the Green control procedures or a list of wastes subject to the 
Amber control procedures and by the national procedures of the United 
States, as defined in Sec.  262.80(a). The two lists correspond to 
Appendices 3 and 4, respectively, of the OECD Decision and have been 
incorporated by reference in Sec.  262.89(d).
    (1) Listed wastes subject to the Green control procedures.
    (i) Green wastes that are not considered hazardous under U.S. 
national procedures as defined in Sec.  262.80(a) are subject to 
existing controls normally applied to commercial transactions.
    (ii) Green wastes that are considered hazardous under U.S. national 
procedures as defined in Sec.  262.80(a) are subject to the Amber 
control procedures set forth in this subpart.
    (2) Listed wastes subject to the Amber control procedures.
    (i) Amber wastes that are considered hazardous under U.S. national 
procedures as defined in Sec.  262.80(a) are subject to the Amber 
control procedures set forth in this subpart.
    (ii) Amber wastes that are considered hazardous under U.S. national 
procedures as defined in Sec.  262.80(a), are subject to the Amber 
control procedures in the United States, even if they are imported to 
or exported from a designated OECD Member country listed in Sec.  
262.58(a)(1) that does not consider the waste to be hazardous. In such 
an event, the responsibilities of the Amber control procedures shift as 
provided:
    (A) For U.S. exports, the United States shall issue an 
acknowledgement of receipt and assume other responsibilities of the 
competent authority of the country of import.
    (B) For U.S. imports, the U.S. recovery facility/importer and the 
United States shall assume the obligations associated with the Amber 
control procedures that normally apply to the exporter and country of 
export, respectively.
    (iii) Amber wastes that are not considered hazardous under U.S. 
national procedures as defined in Sec.  262.80(a), but are considered 
hazardous by an OECD Member country are subject to the Amber control 
procedures in the OECD Member country that considers the waste 
hazardous. All responsibilities of the U.S. importer/exporter shift to 
the importer/exporter of the OECD Member country that considers the 
waste hazardous unless the parties make other arrangements through 
contracts.

    Note to paragraph (a)(2): Some wastes subject to the Amber 
control procedures are not listed or otherwise identified as 
hazardous under RCRA, and therefore are not subject to the Amber 
control procedures of this subpart. Regardless of the status of the 
waste under RCRA, however, other Federal environmental statutes 
(e.g., the Toxic Substances Control Act) restrict certain waste 
imports or exports. Such restrictions continue to apply with regard 
to this subpart.

    (3) Procedures for mixtures of wastes.
    (i) A Green waste that is mixed with one or more other Green wastes 
such that the resulting mixture is not considered hazardous under U.S. 
national procedures as defined in Sec.  262.80(a) shall be subject to 
the Green control procedures, provided the composition of this mixture 
does not impair its environmentally sound recovery.

    Note to paragraph (a)(3)(i): The regulated community should note 
that some OECD Member countries may require, by domestic law, that 
mixtures of different Green wastes be subject to the Amber control 
procedures.

    (ii) A Green waste that is mixed with one or more Amber wastes, in 
any amount, de minimis or otherwise, or a mixture of two or more Amber 
wastes, such that the resulting waste mixture is considered hazardous 
under U.S. national procedures as defined in Sec.  262.80(a) are 
subject to the Amber control procedures, provided the composition of 
this mixture does not impair its environmentally sound recovery.

    Note to paragraph (a)(3)(ii): The regulated community should 
note that some OECD

[[Page 58409]]

Member countries may require, by domestic law, that a mixture of a 
Green waste and more than a de minimis amount of an Amber waste or a 
mixture of two or more Amber wastes be subject to the Amber control 
procedures.

    (4) Wastes not yet assigned to an OECD waste list are eligible for 
transboundary movements, as follows:
    (i) If such wastes are considered hazardous under U.S. national 
procedures as defined in Sec.  262.80(a), such wastes are subject to 
the Amber control procedures.
    (ii) If such wastes are not considered hazardous under U.S. 
national procedures as defined in Sec.  262.80(a), such wastes are 
subject to the Green control procedures.
    (b) General conditions applicable to transboundary movements of 
hazardous waste: (1) The waste must be destined for recovery operations 
at a facility that, under applicable domestic law, is operating or is 
authorized to operate in the importing country;
    (2) The transboundary movement must be in compliance with 
applicable international transport agreements; and

    Note to paragraph (b)(2): These international agreements 
include, but are not limited to, the Chicago Convention (1944), ADR 
(1957), ADNR (1970), MARPOL Convention (1973/1978), SOLAS Convention 
(1974), IMDG Code (1985), COTIF (1985), and RID (1985).

    (3) Any transit of waste through a non-OECD Member country must be 
conducted in compliance with all applicable international and national 
laws and regulations.
    (c) Provisions relating to re-export for recovery to a third 
country: (1) Re-export of wastes subject to the Amber control 
procedures from the United States, as the country of import, to a third 
country listed in Sec.  262.58(a)(1) may occur only after an exporter 
in the United States provides notification to and obtains consent from 
the competent authorities in the third country, the original country of 
export, and new transit countries. The notification must comply with 
the notice and consent procedures in Sec.  262.83 for all countries 
concerned and the original country of export. The competent authorities 
of the original country of export, as well as the competent authorities 
of all other countries concerned have thirty (30) days to object to the 
proposed movement.
    (i) The thirty (30) day period begins once the competent 
authorities of both the initial country of export and new country of 
import issue Acknowledgements of Receipt of the notification.
    (ii) The transboundary movement may commence if no objection has 
been lodged after the thirty (30) day period has passed or immediately 
after written consent is received from all relevant OECD importing and 
transit countries.
    (2) In the case of re-export of Amber wastes to a country other 
than those listed in Sec.  262.58(a)(1), notification to and consent of 
the competent authorities of the original OECD Member country of export 
and any OECD Member countries of transit is required as specified in 
paragraph (c)(1) of this section, in addition to compliance with all 
international agreements and arrangements to which the first importing 
OECD Member country is a party and all applicable regulatory 
requirements for exports from the first country of import.
    (d) Duty to return or re-export wastes subject to the Amber control 
procedures. When a transboundary movement of wastes subject to the 
Amber control procedures cannot be completed in accordance with the 
terms of the contract or the consent(s) and alternative arrangements 
cannot be made to recover the waste in an environmentally sound manner 
in the country of import, the waste must be returned to the country of 
export or re-exported to a third country. The provisions of paragraph 
(c) of this section apply to any shipments to be re-exported to a third 
country. The following provisions apply to shipments to be returned to 
the country of export as appropriate:
    (1) Return from the United States to the country of export: The 
U.S. importer must inform EPA at the specified address in Sec.  
262.83(b)(1)(i) of the need to return the shipment. EPA will then 
inform the competent authorities of the countries of export and 
transit, citing the reason(s) for returning the waste. The U.S. 
importer must complete the return within ninety (90) days from the time 
EPA informs the country of export of the need to return the waste, 
unless informed in writing by EPA of another timeframe agreed to by the 
concerned Member countries. If the return shipment will cross any new 
transit country, the return shipment may only occur after EPA provides 
notification to and obtains consent from the competent authority of the 
new country of transit, and provides a copy of that consent to the U.S. 
importer.
    (2) Return from the country of import to the United States: The 
U.S. exporter must provide for the return of the hazardous waste 
shipment within ninety (90) days from the time the country of import 
informs EPA of the need to return the waste or such other period of 
time as the concerned Member countries agree. The U.S. exporter must 
submit an exception report to EPA in accordance with Sec.  262.87(b).
    (e) Duty to return wastes subject to the Amber control procedures 
from a country of transit. When a transboundary movement of wastes 
subject to the Amber control procedures does not comply with the 
requirements of the notification and movement documents or otherwise 
constitutes illegal shipment, and if alternative arrangements cannot be 
made to recover these wastes in an environmentally sound manner, the 
waste must be returned to the country of export. The following 
provisions apply as appropriate:
    (1) Return from the United States (as country of transit) to the 
country of export: The U.S. transporter must inform EPA at the 
specified address in Sec.  262.83(b)(1)(i) of the need to return the 
shipment. EPA will then inform the competent authority of the country 
of export, citing the reason(s) for returning the waste. The U.S. 
transporter must complete the return within ninety (90) days from the 
time EPA informs the country of export of the need to return the waste, 
unless informed in writing by EPA of another timeframe agreed to by the 
concerned Member countries.
    (2) Return from the country of transit to the United States (as 
country of export): The U.S. exporter must provide for the return of 
the hazardous waste shipment within ninety (90) days from the time the 
competent authority of the country of transit informs EPA of the need 
to return the waste or such other period of time as the concerned 
Member countries agree. The U.S. exporter must submit an exception 
report to EPA in accordance with Sec.  262.87(b).
    (f) Requirements for wastes destined for and received by R12 and 
R13 facilities. The transboundary movement of wastes destined for R12 
and R13 operations must comply with all Amber control procedures for 
notification and consent as set forth in Sec.  262.83 and for the 
movement document as set forth in Sec.  262.84. Additional 
responsibilities of R12/R13 facilities include:
    (1) Indicating in the notification document the foreseen recovery 
facility or facilities where the subsequent R1-R11 recovery operation 
takes place or may take place.
    (2) Within three (3) days of the receipt of the wastes by the R12/
R13 recovery facility or facilities, the facility(ies) shall return a 
signed copy of the movement document to the exporter and to the 
competent authorities of the countries of export and import. The 
facility(ies) shall

[[Page 58410]]

retain the original of the movement document for three (3) years.
    (3) As soon as possible, but no later than thirty (30) days after 
the completion of the R12/R13 recovery operation and no later than one 
(1) calendar year following the receipt of the waste, the R12 or R13 
facility(ies) shall send a certificate of recovery to the foreign 
exporter and to the competent authority of the country of export and to 
the Office of Enforcement and Compliance Assurance, Office of Federal 
Activities, International Compliance Assurance Division (2254A), 
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460, by mail, e-mail without digital signature 
followed by mail, or fax followed by mail.
    (4) When an R12/R13 recovery facility delivers wastes for recovery 
to an R1-R11 recovery facility located in the country of import, it 
shall obtain as soon as possible, but no later than one (1) calendar 
year following delivery of the waste, a certification from the R1-R11 
facility that recovery of the wastes at that facility has been 
completed. The R12/R13 facility must promptly transmit the applicable 
certification to the competent authorities of the countries of import 
and export, identifying the transboundary movements to which the 
certification pertain.
    (5) When an R12/R13 recovery facility delivers wastes for recovery 
to an R1-R11 recovery facility located:
    (i) in the initial country of export, Amber control procedures 
apply, including a new notification;
    (ii) in a third country other than the initial country of export, 
Amber control procedures apply, with the additional provision that the 
competent authority of the initial country of export shall also be 
notified of the transboundary movement.
    (g) Laboratory analysis exemption. The transboundary movement of an 
Amber waste is exempt from the Amber control procedures if it is in 
certain quantities and destined for laboratory analysis to assess its 
physical or chemical characteristics, or to determine its suitability 
for recovery operations. The quantity of such waste shall be determined 
by the minimum quantity reasonably needed to perform the analysis in 
each particular case adequately, but in no case exceed twenty-five 
kilograms (25 kg). Waste destined for laboratory analysis must still be 
appropriately packaged and labeled.


Sec.  262.83  Notification and consent.

    (a) Applicability. Consent must be obtained from the competent 
authorities of the relevant OECD countries of import and transit prior 
to exporting hazardous waste destined for recovery operations subject 
to this subpart. Hazardous wastes subject to the Amber control 
procedures are subject to the requirements of paragraph (b) of this 
section; and wastes not identified on any list are subject to the 
requirements of paragraph (c) of this section.
    (b) Amber wastes. Exports of hazardous wastes from the United 
States as described in Sec.  262.80(a) that are subject to the Amber 
control procedures are prohibited unless the notification and consent 
requirements of paragraph (b)(1) or paragraph (b)(2) of this section 
are met.
    (1) Transactions requiring specific consent:
    (i) Notification. At least forty-five (45) days prior to 
commencement of each transboundary movement, the exporter must provide 
written notification in English of the proposed transboundary movement 
to the Office of Enforcement and Compliance Assurance, Office of 
Federal Activities, International Compliance Assurance Division 
(2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460, with the words ``Attention: OECD Export 
Notification'' prominently displayed on the envelope. This notification 
must include all of the information identified in paragraph (d) of this 
section. In cases where wastes having similar physical and chemical 
characteristics, the same United Nations classification, the same RCRA 
waste codes, and are to be sent periodically to the same recovery 
facility by the same exporter, the exporter may submit one general 
notification of intent to export these wastes in multiple shipments 
during a period of up to one (1) year. Even when a general notification 
is used for multiple shipments, each shipment still must be accompanied 
by its own movement document pursuant to Sec.  262.84.
    (ii) Tacit consent. If no objection has been lodged by any 
concerned country (i.e., exporting, importing, or transit) to a 
notification provided pursuant to paragraph (b)(1)(i) of this section 
within thirty (30) days after the date of issuance of the 
Acknowledgement of Receipt of notification by the competent authority 
of the country of import, the transboundary movement may commence. 
Tacit consent expires one (1) calendar year after the close of the 
thirty (30) day period; renotification and renewal of all consents is 
required for exports after that date.
    (iii) Written consent. If the competent authorities of all the 
relevant OECD importing and transit countries provide written consent 
in a period less than thirty (30) days, the transboundary movement may 
commence immediately after all necessary consents are received. Written 
consent expires for each relevant OECD importing and transit country 
one (1) calendar year after the date of that country's consent unless 
otherwise specified; renotification and renewal of each expired consent 
is required for exports after that date.
    (2) Transboundary movements to facilities pre-approved by the 
competent authorities of the importing countries to accept specific 
wastes for recovery:
    (i) Notification. The exporter must provide EPA a notification that 
contains all the information identified in paragraph (d) of this 
section in English, at least ten (10) days in advance of commencing 
shipment to a pre-approved facility. The notification must indicate 
that the recovery facility is pre-approved, and may apply to a single 
specific shipment or to multiple shipments as described in paragraph 
(b)(1)(i) of this section. This information must be sent to the Office 
of Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
with the words ``OECD Export Notification--Pre-approved Facility'' 
prominently displayed on the envelope. General notifications that cover 
multiple shipments as described in paragraph (b)(1)(i) of this section 
may cover a period of up to three (3) years. Even when a general 
notification is used for multiple shipments, each shipment still must 
be accompanied by its own movement document pursuant to Sec.  262.84.
    (ii) Exports to pre-approved facilities may take place after the 
elapse of seven (7) working days from the issuance of an 
Acknowledgement of Receipt of the notification by the competent 
authority of the country of import unless the exporter has received 
information indicating that the competent authority of any concerned 
country objects to the shipment.
    (c) Wastes not covered in Appendices 3 and 4 of the OECD Decision. 
Wastes destined for recovery operations, that have not been assigned to 
Appendices 3 or 4 of the OECD Decision, but which are considered 
hazardous under U.S. national procedures as defined in Sec.  262.80(a), 
are subject to the

[[Page 58411]]

notification and consent requirements established for the Amber control 
procedures in accordance with paragraph (b) of this section. Wastes 
destined for recovery operations, that have not been assigned to 
Appendices 3 or 4 of the OECD Decision, and are not considered 
hazardous under U.S. national procedures as defined by Sec.  262.80(a) 
are subject to the Green control procedures.
    (d) Notifications submitted under this section must include the 
information specified in paragraphs (d)(1) through (d)(14) of this 
section:
    (1) Serial number or other accepted identifier of the notification 
document;
    (2) Exporter name and EPA identification number (if applicable), 
address, telephone and fax numbers, and e-mail address;
    (3) Importing recovery facility name, address, telephone and fax 
numbers, e-mail address, and technologies employed;
    (4) Importer name (if not the owner or operator of the recovery 
facility), address, telephone and fax numbers, and e-mail address; 
whether the importer will engage in waste exchange or storage, meeting 
the definition of R12 or R13 recovery operations in Sec.  262.81(m), 
prior to delivering the waste to the final recovery facility and 
identification of recovery operations to be employed at the final 
recovery facility;
    (5) Intended transporter(s) and/or their agent(s); address, 
telephone, fax, and e-mail address;
    (6) Country of export and relevant competent authority, and point 
of departure;
    (7) Countries of transit and relevant competent authorities and 
points of entry and departure;
    (8) Country of import and relevant competent authority, and point 
of entry;
    (9) Statement of whether the notification is a single notification 
or a general notification. If general, include period of validity 
requested;
    (10) Date(s) foreseen for commencement of transboundary 
movement(s);
    (11) Means of transport envisaged;
    (12) Designation of waste type(s) from the appropriate list (Part I 
or II of Appendix 3 or 4) of the OECD Decision, description(s) of each 
waste type, estimated total quantity of each, RCRA waste code, and the 
United Nations number for each waste type;
    (13) Specification of the recovery operation(s) according to Sec.  
262.81(m).
    (14) Certification/Declaration signed by the exporter that states:
    I certify that the above information is complete and correct to the 
best of my knowledge. I also certify that legally-enforceable written 
contractual obligations have been entered into, and that any applicable 
insurance or other financial guarantees are or shall be in force 
covering the transboundary movement.

Name:------------------------------------------------------------------

Signature:-------------------------------------------------------------

Date:------------------------------------------------------------------


    Note to Paragraph (d)(14): The United States does not currently 
require financial assurance for these waste shipments. However, U.S. 
exporters may be asked by other governments to provide and certify 
to such assurance as a condition of obtaining consent to a proposed 
movement.

    (e) Certificate of Recovery. As soon as possible, but no later than 
thirty (30) days after the completion of recovery and no later than one 
(1) calendar year following receipt of the waste, the U.S. recovery 
facility shall send a certificate of recovery to the exporter and to 
the competent authorities of the countries of export and import by 
mail, e-mail without a digital signature followed by mail, or fax 
followed by mail.


Sec.  262.84  Movement document.

    (a) All U.S. parties subject to the contract provisions of Sec.  
262.85 must ensure that a movement document meeting the conditions of 
paragraph (b) of this section accompanies each transboundary movement 
of wastes subject to the Amber control procedures from the initiation 
of the shipment until it reaches the final recovery facility, including 
cases in which the waste is stored and/or sorted by the importer prior 
to shipment to the final recovery facility, except as provided in 
paragraphs (a)(1) and (2) of this section.
    (1) For shipments of hazardous waste within the United States 
solely by water (bulk shipments only), the generator must forward the 
movement document with the manifest to the last water (bulk shipment) 
transporter to handle the waste in the United States if exported by 
water (in accordance with the manifest routing procedures at Sec.  
262.23(c)).
    (2) For rail shipments of hazardous waste within the United States 
which originate at the site of generation, the generator must forward 
the movement document with the manifest (in accordance with the routing 
procedures for the manifest in Sec.  262.23(d)) to the next non-rail 
transporter, if any, or the last rail transporter to handle the waste 
in the United States if exported by rail.
    (b) The movement document must include all information required 
under Sec.  262.83 (for notification), as well as the following 
paragraphs (b)(1) through (b)(7) of this section:
    (1) Date movement commenced;
    (2) Name (if not exporter), address, telephone and fax numbers, and 
e-mail of primary exporter;
    (3) Company name and EPA ID number of all transporters;
    (4) Identification (license, registered name or registration 
number) of means of transport, including types of packaging envisaged;
    (5) Any special precautions to be taken by transporter(s);
    (6) Certification/declaration signed by the exporter that no 
objection to the shipment has been lodged as follows:
    I certify that the above information is complete and correct to the 
best of my knowledge. I also certify that legally-enforceable written 
contractual obligations have been entered into, that any applicable 
insurance or other financial guarantees are or shall be in force 
covering the transboundary movement, and that:
    1. All necessary consents have been received; OR
    2. The shipment is directed to a recovery facility within the OECD 
area and no objection has been received from any of the countries 
concerned within the thirty (30) day tacit consent period; OR
    3. The shipment is directed to a recovery facility pre-authorized 
for that type of waste within the OECD area; such an authorization has 
not been revoked, and no objection has been received from any of the 
countries concerned.


(Delete sentences that are not applicable)

Name:------------------------------------------------------------------

Signature:-------------------------------------------------------------

Date:------------------------------------------------------------------

    (7) Appropriate signatures for each custody transfer (e.g., 
transporter, importer, and owner or operator of the recovery facility).
    (c) Exporters also must comply with the special manifest 
requirements of 40 CFR 262.54(a), (b), (c), (e), and (i) and importers 
must comply with the import requirements of 40 CFR part 262, subpart F.
    (d) Each U.S. person that has physical custody of the waste from 
the time the movement commences until it arrives at the recovery 
facility must sign the movement document (e.g., transporter, importer, 
and owner or operator of the recovery facility).
    (e) Within three (3) working days of the receipt of imports subject 
to this subpart, the owner or operator of the U.S. recovery facility 
must send signed copies of the movement document to the exporter, to 
the Office of

[[Page 58412]]

Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
and to the competent authorities of the countries of export and 
transit. If the concerned U.S. recovery facility is a R12/R13 recovery 
facility under Sec.  262.81(m), the facility shall retain the original 
of the movement document for three (3) years.


Sec.  262.85  Contracts.

    (a) Transboundary movements of hazardous wastes subject to the 
Amber control procedures are prohibited unless they occur under the 
terms of a valid written contract, chain of contracts, or equivalent 
arrangements (when the movement occurs between parties controlled by 
the same corporate or legal entity). Such contracts or equivalent 
arrangements must be executed by the exporter and the owner or operator 
of the recovery facility, and must specify responsibilities for each. 
Contracts or equivalent arrangements are valid for the purposes of this 
section only if persons assuming obligations under the contracts or 
equivalent arrangements have appropriate legal status to conduct the 
operations specified in the contract or equivalent arrangements.
    (b) Contracts or equivalent arrangements must specify the name and 
EPA ID number, where available, of paragraph (b)(1) through (b)(4) of 
this section:
    (1) The generator of each type of waste;
    (2) Each person who will have physical custody of the wastes;
    (3) Each person who will have legal control of the wastes; and
    (4) The recovery facility.
    (c) Contracts or equivalent arrangements must specify which party 
to the contract will assume responsibility for alternate management of 
the wastes if their disposition cannot be carried out as described in 
the notification of intent to export. In such cases, contracts must 
specify that:
    (1) The person having actual possession or physical control over 
the wastes will immediately inform the exporter and the competent 
authorities of countries of export and import and, if the wastes are 
located in a country of transit, the competent authorities of that 
country; and
    (2) The person specified in the contract will assume responsibility 
for the adequate management of the wastes in compliance with applicable 
laws and regulations including, if necessary, arranging the return of 
wastes and, as the case may be, shall provide the notification for re-
export.
    (d) Contracts must specify that the importer will provide the 
notification required in Sec.  262.82(c) prior to the re-export of 
controlled wastes to a third country.
    (e) Contracts or equivalent arrangements must include provisions 
for financial guarantees, if required by the competent authorities of 
any concerned country, in accordance with applicable national or 
international law requirements.

    Note to Paragraph (e): Financial guarantees so required are 
intended to provide for alternate recycling, disposal or other means 
of sound management of the wastes in cases where arrangements for 
the shipment and the recovery operations cannot be carried out as 
foreseen. The United States does not require such financial 
guarantees at this time; however, some OECD Member countries do. It 
is the responsibility of the exporter to ascertain and comply with 
such requirements; in some cases, transporters or importers may 
refuse to enter into the necessary contracts absent specific 
references or certifications to financial guarantees.

    (f) Contracts or equivalent arrangements must contain provisions 
requiring each contracting party to comply with all applicable 
requirements of this subpart.
    (g) Upon request by EPA, U.S. exporters, importers, or recovery 
facilities must submit to EPA copies of contracts, chain of contracts, 
or equivalent arrangements (when the movement occurs between parties 
controlled by the same corporate or legal entity). Information 
contained in the contracts or equivalent arrangements for which a claim 
of confidentiality is asserted in accordance with 40 CFR 2.203(b) will 
be treated as confidential and will be disclosed by EPA only as 
provided in 40 CFR 260.2.

    Note to Paragraph (g): Although the United States does not 
require routine submission of contracts at this time, the OECD 
Decision allows Member countries to impose such requirements. When 
other OECD Member countries require submission of partial or 
complete copies of the contract as a condition to granting consent 
to proposed movements, EPA will request the required information; 
absent submission of such information, some OECD Member countries 
may deny consent for the proposed movement.

Sec.  262.86  Provisions relating to recognized traders.

    (a) A recognized trader who takes physical custody of a waste and 
conducts recovery operations (including storage prior to recovery) is 
acting as the owner or operator of a recovery facility and must be so 
authorized in accordance with all applicable Federal laws.
    (b) A recognized trader acting as an exporter or importer for 
transboundary shipments of waste must comply with all the requirements 
of this subpart associated with being an exporter or importer.


Sec.  262.87  Reporting and recordkeeping.

    (a) Annual reports. For all waste movements subject to this 
subpart, persons (e.g., exporters, recognized traders) who meet the 
definition of primary exporter in Sec.  262.51 or who initiate the 
movement documentation under Sec.  262.84 shall file an annual report 
with the Office of Enforcement and Compliance Assurance, Office of 
Federal Activities, International Compliance Assurance Division 
(2254A), Environmental Protection Agency, 1200 Pennsylvania Avenue, 
NW., Washington, DC 20460, no later than March 1 of each year 
summarizing the types, quantities, frequency, and ultimate destination 
of all such hazardous waste exported during the previous calendar year. 
(If the primary exporter or the person who initiates the movement 
documentation under Sec.  262.84 is required to file an annual report 
for waste exports that are not covered under this subpart, he may 
include all export information in one report provided the following 
information on exports of waste destined for recovery within the 
designated OECD Member countries is contained in a separate section.) 
Such reports shall include all of the following paragraphs (a)(1) 
through (a)(6) of this section specified as follows:
    (1) The EPA identification number, name, and mailing and site 
address of the exporter filing the report;
    (2) The calendar year covered by the report;
    (3) The name and site address of each final recovery facility;
    (4) By final recovery facility, for each hazardous waste exported, 
a description of the hazardous waste, the EPA hazardous waste number 
(from 40 CFR part 261, subpart C or D), designation of waste type(s) 
and applicable waste code(s) from the appropriate OECD waste list 
(Appendices 3 or 4 of the OECD Decision), DOT hazard class, the name 
and U.S. EPA identification number (where applicable) for each 
transporter used, the total amount of hazardous waste shipped pursuant 
to this subpart, and number of shipments pursuant to each notification;
    (5) In even numbered years, for each hazardous waste exported, 
except for hazardous waste produced by exporters

[[Page 58413]]

of greater than 100kg but less than 1000kg in a calendar month, and 
except for hazardous waste for which information was already provided 
pursuant to Sec.  262.41:
    (i) A description of the efforts undertaken during the year to 
reduce the volume and toxicity of the waste generated; and
    (ii) A description of the changes in volume and toxicity of the 
waste actually achieved during the year in comparison to previous years 
to the extent such information is available for years prior to 1984; 
and
    (6) A certification signed by the person acting as primary exporter 
or initiator of the movement documentation under Sec.  262.84 that 
states:
    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this and all attached 
documents, and that based on my inquiry of those individuals 
immediately responsible for obtaining the information, I believe that 
the submitted information is true, accurate, and complete. I am aware 
that there are significant penalties for submitting false information 
including the possibility of fine and imprisonment.
    (b) Exception reports. Any person who meets the definition of 
primary exporter in Sec.  262.51 or who initiates the movement 
documentation under Sec.  262.84 must file an exception report in lieu 
of the requirements of Sec.  262.42 (if applicable) with the Office of 
Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
if any of the following occurs:
    (1) He has not received a copy of the RCRA hazardous waste manifest 
(if applicable) signed by the transporter identifying the point of 
departure of the waste from the United States, within forty-five (45) 
days from the date it was accepted by the initial transporter;
    (2) Within ninety (90) days from the date the waste was accepted by 
the initial transporter, the exporter has not received written 
confirmation from the recovery facility that the hazardous waste was 
received;
    (3) The waste is returned to the United States.
    (c) Recordkeeping. (1) Persons who meet the definition of primary 
exporter in Sec.  262.51 or who initiate the movement documentation 
under Sec.  262.84 shall keep the following records paragraphs 
(c)(1)(i) through (c)(1)(iv) of this section:
    (i) A copy of each notification of intent to export and all written 
consents obtained from the competent authorities of countries concerned 
for a period of at least three (3) years from the date the hazardous 
waste was accepted by the initial transporter;
    (ii) A copy of each annual report for a period of at least three 
(3) years from the due date of the report;
    (iii) A copy of any exception reports and a copy of each 
confirmation of delivery (i.e., movement documentation) sent by the 
recovery facility to the exporter for at least three (3) years from the 
date the hazardous waste was accepted by the initial transporter or 
received by the recovery facility, whichever is applicable; and
    (iv) A copy of each confirmation of recovery sent by the recovery 
facility to the exporter for at least three (3) years from the date 
that the recovery facility completed processing the waste shipment.
    (2) The periods of retention referred to in this section are 
extended automatically during the course of any unresolved enforcement 
action regarding the regulated activity or as requested by the 
Administrator.


Sec.  262.88  Pre-approval for U.S. recovery facilities [Reserved]


Sec.  262.89  OECD waste lists.

    (a) General. For the purposes of this subpart, a waste is 
considered hazardous under U.S. national procedures, and hence subject 
to this subpart, if the waste:
    (1) Meets the Federal definition of hazardous waste in 40 CFR 
261.3; and
    (2) Is subject to either the Federal RCRA manifesting requirements 
at 40 CFR part 262, subpart B, to the universal waste management 
standards of 40 CFR part 273, to State requirements analogous to 40 CFR 
part 273, to the export requirements in the spent lead-acid battery 
management standards of 40 CFR part 266, subpart G, or to State 
requirements analogous to the export requirements in 40 CFR part 266, 
subpart G.
    (b) If a waste is hazardous under paragraph (a) of this section, it 
is subject to the Amber control procedures, regardless of whether it 
appears in Appendix 4 of the OECD Decision.
    (c) The appropriate control procedures for hazardous wastes and 
hazardous waste mixtures are addressed in Sec.  262.82.
    (d) The OECD waste lists, entitled ``List of Wastes Subject to the 
Green Control Procedure'' and ``List of Wastes Subject to the Amber 
Control Procedure,'' are set forth in Appendix 3 and Appendix 4, 
respectively, of the OECD Decision. These lists are incorporated by 
reference. These incorporations by reference were approved by the 
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51 on [date of approval for incorporation by reference]. 
These materials are incorporated as they exist on the date of the 
approval and a notice of any change in these materials will be 
published in the Federal Register. The materials are available for 
inspection at: the U.S. Environmental Protection Agency, Docket Center 
Public Reading Room, EPA West, Room 3334, 1301 Constitution Avenue, 
NW., Washington, DC 20004 (Docket <greek-i> EPA-HQ-RCRA-2005-0018) or 
at the National Archives and Records Administration (NARA), and may be 
obtained from the Organization for Economic Cooperation and 
Development, Environment Directorate, 2 rue Andr[eacute] Pascal, F-
75775 Paris Cedex 16, France. For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    6. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

    7. Section 264.12(a)(2) is revised to read as follows:


Sec.  264.12  Required notices.

    (a)(1) * * *
    (2) The owner or operator of a recovery facility that has arranged 
to receive hazardous waste subject to 40 CFR part 262, subpart H must 
provide a copy of the movement document bearing all required signatures 
to the foreign exporter; to the Office of Enforcement and Compliance 
Assurance, Office of Federal Activities, International Compliance 
Assurance Division (2254A), Environmental Protection Agency, 1200 
Pennsylvania Avenue. NW., Washington, DC 20460; and to the competent 
authorities of all other countries concerned within three (3) working 
days of receipt of the shipment. The original of the signed movement 
document must be maintained at the facility for at least three (3) 
years. In addition, such owner or operator shall, as soon as possible, 
but no later than thirty (30) days after the completion of recovery and 
no later

[[Page 58414]]

than one (1) calendar year following the receipt of the hazardous 
waste, send a certificate of recovery to the foreign exporter and to 
the competent authority of the country of export and to EPA's Office of 
Enforcement and Compliance Assurance at the above address by mail, e-
mail without a digital signature followed by mail, or fax followed by 
mail.
* * * * *
    8. Section 264.71(a)(3) is revised to read as follows:


Sec.  264.71  Use of manifest system.

    (a)(1) * * *
    (3) If a facility receives hazardous waste imported from a foreign 
source, the receiving facility must mail a copy of the manifest and 
documentation confirming EPA's consent to the import of hazardous waste 
to the following address within thirty (30) days of delivery: Office of 
Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    9. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936, and 6937.

    10. Section 265.12(a)(2) is revised to read as follows:


Sec.  265.12  Required notices.

    (a)(1) * * *
    (2) The owner or operator of a recovery facility that has arranged 
to receive hazardous waste subject to 40 CFR part 262, subpart H must 
provide a copy of the movement document bearing all required signatures 
to the foreign exporter; to the Office of Enforcement and Compliance 
Assurance, Office of Federal Activities, International Compliance 
Assurance Division (2254A), Environmental Protection Agency, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460; and to the competent 
authorities of all other countries concerned within three (3) working 
days of receipt of the shipment. The original of the signed movement 
document must be maintained at the facility for at least three (3) 
years. In addition, such owner or operator shall, as soon as possible, 
but no later than thirty (30) days after the completion of recovery and 
no later than one (1) calendar year following the receipt of the 
hazardous waste, send a certificate of recovery to the foreign exporter 
and to the competent authority of the country of export and to EPA's 
Office of Enforcement and Compliance Assurance at the above address by 
mail, e-mail without a digital signature followed by mail, or fax 
followed by mail.
* * * * *
    11. Section 265.71(a)(3) is revised to read as follows:


Sec.  265.71  Use of manifest system.

    (a)(1) * * *
    (3) If a facility receives hazardous waste imported from a foreign 
source, the receiving facility must mail a copy of the manifest and 
documentation confirming EPA's consent to the import of hazardous waste 
to the following address within thirty (30) days of delivery: Office of 
Enforcement and Compliance Assurance, Office of Federal Activities, 
International Compliance Assurance Division (2254A), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
* * * * *

PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES 
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

    12. The authority citation for part 266 is revised to read as 
follows:

    Authority: 42 U.S.C. 1006, 2002(a), 3001-3009, 3014, 3017, 6905, 
6906, 6912, 6921, 6922, 6924-6927, 6934, and 6937.

    13. In Sec.  266.80(a) the table is revised to read as follows:


Sec.  266.80  Applicability and requirements.

    (a) * * *

----------------------------------------------------------------------------------------------------------------
       If your batteries * * *             And if you * * *          Then you * * *           And you * * *
----------------------------------------------------------------------------------------------------------------
(1) Will be reclaimed through          .......................  Are exempt from 40 CFR   Are subject to 40 CFR
 regeneration (such as by electrolyte                            parts 262 (except for    parts 261 and Sec.
 replacement).                                                   Sec.   262.11), 263,     262.11 of this
                                                                 264, 265, 266, 268,      chapter.
                                                                 270, 124 of this
                                                                 chapter, and the
                                                                 notification
                                                                 requirements at
                                                                 section 3010 of RCRA.
(2) Will be reclaimed other than       Generate, collect, and/  Are exempt from 40 CFR   Are subject to 40 CFR
 through regeneration.                  or transport these       parts 262 (except for    parts 261 and Sec.
                                        batteries.               Sec.   262.11), 263,     262.11, and applicable
                                                                 264, 265, 266, 270,      provisions under part
                                                                 124 of this chapter,     268.
                                                                 and the notification
                                                                 requirements at
                                                                 section 3010 of RCRA.
(3) Will be reclaimed other than       Store these batteries    Are exempt from 40 CFR   Are subject to 40 CFR
 through regeneration.                  but you aren't the       parts 262 (except for    parts 261, Sec.
                                        reclaimer.               Sec.   262.11), 263,     262.11, and applicable
                                                                 264, 265, 266, 270,      provisions under part
                                                                 124 of this chapter,     268.
                                                                 and the notification
                                                                 requirements at
                                                                 section 3010 of RCRA.
(4) Will be reclaimed other than       Store these batteries    Must comply with 40 CFR  Are subject to 40 CFR
 through regeneration.                  before you reclaim       266.80(b) and as         parts 261, Sec.
                                        them.                    appropriate other        262.11, and applicable
                                                                 regulatory provisions    provisions under part
                                                                 described in 266.80(b).  268.
(5) Will be reclaimed other than       Don't store these        Are exempt from 40 CFR   Are subject to 40 CFR
 through regeneration.                  batteries before you     parts 262 (except for    parts 261, Sec.
                                        reclaim them.            Sec.   262.11), 263,     262.11, and applicable
                                                                 264, 265, 266, 270,      provisions under part
                                                                 124 of this chapter,     268.
                                                                 and the notification
                                                                 requirements at
                                                                 section 3010 of RCRA.

[[Page 58415]]

 
(6) Will be reclaimed through          Export these batteries   Are exempt from 40 CFR   Are subject to 40 CFR
 regeneration or any other means.       for reclamation in a     parts 263, 264, 265,     part 261 and Sec.
                                        foreign country.         266, 268, 270, 124 of    262.11, and either
                                                                 this chapter, and the    must comply with 40
                                                                 notification             CFR part 262, subpart
                                                                 requirements at          H (if shipping to one
                                                                 section 3010 of RCRA.    of the OECD countries
                                                                 You are also exempt      specified in 40 CFR
                                                                 from part 262, except    262.58(a)(1)), or
                                                                 for 262.11, and except   must:
                                                                 for the applicable      (a) Comply with the
                                                                 requirements in          requirements
                                                                 either:.                 applicable to a
                                                                (1) 40 CFR part 262       primary exporter in 40
                                                                 subpart H; or (2)        CFR 262.53,
                                                                 262.53 ``Notification    262.56(a)(1) through
                                                                 of Intent to Export,     (4), (6), and (b) and
                                                                 262.56(a)(1) through     262.57; and
                                                                 (4), (6), and (b)       (b) Export these
                                                                 ``Annual Reports,''      batteries only upon
                                                                 and 262.57               consent of the
                                                                 ``Recordkeeping''.       receiving country and
                                                                                          in conformance with
                                                                                          the EPA
                                                                                          Acknowledgement of
                                                                                          Consent as defined in
                                                                                          subpart E of part 262
                                                                                          of this chapter; and
                                                                                         (c) Provide a copy of
                                                                                          the EPA Acknowledgment
                                                                                          of Consent for the
                                                                                          shipment to the
                                                                                          transporter
                                                                                          transporting the
                                                                                          shipment for export.
(7) Will be reclaimed through          Transport these          Are exempt from 40 CFR   Must comply with
 regeneration or any other means.       batteries in the U.S.    parts 263, 264, 265,     applicable
                                        to export them for       266, 268, 270, 124 of    requirements in 40 CFR
                                        reclamation in a         this chapter, and the    part 262, subpart H
                                        foreign country.         notification             (if shipping to one of
                                                                 requirements at          the OECD countries
                                                                 section 3010 of RCRA.    specified in 40 CFR
                                                                                          262.58(a)(1)), or must
                                                                                          comply with the
                                                                                          following:
                                                                                         (a) You may not accept
                                                                                          a shipment if you know
                                                                                          the shipment does not
                                                                                          conform to the EPA
                                                                                          Acknowledgment of
                                                                                          Consent;
                                                                                         (b) You must ensure
                                                                                          that a copy of the EPA
                                                                                          Acknowledgment of
                                                                                          Consent accompanies
                                                                                          the shipment; and
                                                                                         (c) You must ensure
                                                                                          that the shipment is
                                                                                          delivered to the
                                                                                          facility designated by
                                                                                          the person initiating
                                                                                          the shipment.
----------------------------------------------------------------------------------------------------------------

* * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    14. The authority citation for part 271 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), and 6926.

    15. Section 271.1(j) is amended by adding the following entries to 
Table 1 and Table 2 in chronological order by date of publication in 
the Federal Register, to read as follows:


Sec.  271.1  Purpose and scope.

* * * * *
    (j) * * *

               Table 1--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                                                    Federal Register
          Promulgation date              Title of regulation           reference              Effective date
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
[Insert date of publication of final   Exports of hazardous     [Insert FR page          [Insert date of X
 rule in the Federal Register (FR)].    waste.                   numbers].                months from date of
                                                                                          publication of final
                                                                                          rule].
----------------------------------------------------------------------------------------------------------------

* * * * *

[[Page 58416]]



            Table 2--Self-Implementing Provisions of the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
                                               Self-implementing
             Effective date                        provision           RCRA citation  Federal Register reference
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
[Insert date X days after of publication  Exports of hazardous waste         3017(a)  [Insert Federal Register
 of final rule in the Federal Register                                                 reference for publication
 (FR)].                                                                                of final rule].
----------------------------------------------------------------------------------------------------------------

* * * * *
 [FR Doc. E8-22536 Filed 10-3-08; 8:45 am]
BILLING CODE 6560-50-P


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