ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 262, 263, 264, 265, 266, and 271

[EPA-HQ-RCRA-2005-0018; FRL-]

RIN 2050-AE93 

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

AGENCY:  Environmental Protection Agency.

ACTION:  Final rule.

________________________________________________________________

SUMMARY:  This rule amends certain existing regulations promulgated
under the hazardous waste provisions of the Resource Conservation and
Recovery Act (RCRA) regarding hazardous waste exports from and imports
into the United States.  Specifically, the amendments implement recent
changes to the agreements concerning the transboundary movement of
hazardous waste among countries belonging to the Organization for
Economic Cooperation and Development (OECD), establish notice and
consent requirements for spent lead-acid batteries intended for
reclamation in a foreign country, specify that all exception reports
concerning hazardous waste exports be sent to the International
Compliance and Assurance Division in the Office of Enforcement and
Compliance Assurance’s Office of Federal Activities in Washington,
D.C., and require U.S. receiving facilities to match EPA-provided import
consent documentation to incoming hazardous waste import shipments and
to submit to EPA a copy of the matched import consent documentation and
RCRA hazardous waste manifest for each import shipment.  

DATES:  This final rule is effective [insert date 6 months after
publication in the Federal Register].  The incorporation by reference of
certain publications listed in the rule is approved by the Director of
the Federal Register as of [insert date 6 months after publication in
the Federal Register].   

ADDRESSES:  EPA has established a docket for this action under Docket ID
No. EPA-HQ-RCRA-2005-0018.  All documents in the docket are listed on
the http://  HYPERLINK "http://www.regulations.gov"  www.regulations.gov
 web site. Although listed in the index, some information is not
publicly available, e.g., Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute.  Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically
through http://  HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  or in hard copy at the RCRA Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave., NW, Washington, DC.  The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,
excluding legal holidays.  The telephone number for the Public Reading
Room is (202) 566-1744, and the telephone number for the RCRA Docket is
(202) 566-0270). 

   

FOR FURTHER INFORMATION CONTACT:  Laura Coughlan, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue,
N.W., Washington, DC 20460; telephone number: (703) 308-0005; fax
number: (703) 308-0514; e-mail address: coughlan.laura@epa.gov. 

SUPPLEMENTARY INFORMATION: 

  TOC \o "1-2" \n \h \z \u    HYPERLINK \l "_Toc236644708"  I.	GENERAL
INFORMATION 

  HYPERLINK \l "_Toc236644709"  A.	Does this final rule apply to me? 

  HYPERLINK \l "_Toc236644710"  B.	List of acronyms used in this final
rule 

  HYPERLINK \l "_Toc236644711"  C.	What are the statutory authorities
for this final rule? 

  HYPERLINK \l "_Toc236644712"  II.	BACKGROUND 

  HYPERLINK \l "_Toc236644713"  A.	OECD revisions 

  HYPERLINK \l "_Toc236644714"  B.	SLAB revisions 

  HYPERLINK \l "_Toc236644715"  C.	Exception reports for hazardous waste
exports 

  HYPERLINK \l "_Toc236644716"  D.	Documenting hazardous waste import
shipments 

  HYPERLINK \l "_Toc236644717"  E.	Proposed Rule 

  HYPERLINK \l "_Toc236644718"  III.	SUMMARY OF THE FINAL RULE 

  HYPERLINK \l "_Toc236644719"  A.	Changes to 40 CFR 262.10(d) 

  HYPERLINK \l "_Toc236644720"  B.	Changes to 40 CFR part 262, subpart E


  HYPERLINK \l "_Toc236644724"  C.	Changes to 40 CFR part 262, subpart H


  HYPERLINK \l "_Toc236644725"  D.	Changes to 40 CFR 263.10(d) 

  HYPERLINK \l "_Toc236644726"  E.	Changes to 40 CFR 264.12(a)(2) and 40
CFR 265.12(a)(2) 

  HYPERLINK \l "_Toc236644727"  F.	Changes to 40 CFR 264.71(a)(3) and 40
CFR 265.71(a)(3) 

  HYPERLINK \l "_Toc236644728"  G.	Changes to 40 CFR 266.80(a) 

  HYPERLINK \l "_Toc236644729"  H.	Changes to 40 CFR 271.1 

  HYPERLINK \l "_Toc236644730"  IV.	DISCUSSION OF COMMENTS RECEIVED IN
RESPONSE TO THE PROPOSED RULEMAKING AND THE AGENCY’S RESPONSES 

  HYPERLINK \l "_Toc236644731"  A.	OECD Revisions 

  HYPERLINK \l "_Toc236644732"  B.	SLAB Revisions 

  HYPERLINK \l "_Toc236644733"  C.	Export Exception Report Technical
Correction and Import Revisions 

  HYPERLINK \l "_Toc236644734"  V.	FUTURE RULEMAKING 

  HYPERLINK \l "_Toc236644735"  VI.	COSTS AND BENEFITS OF THE FINAL RULE


  HYPERLINK \l "_Toc236644736"  A.	Introduction 

  HYPERLINK \l "_Toc236644737"  B.	Analytical Scope 

  HYPERLINK \l "_Toc236644738"  C.	Cost Impacts 

  HYPERLINK \l "_Toc236644739"  D.	Benefits 

  HYPERLINK \l "_Toc236644740"  VII.	STATE AUTHORIZATION 

  HYPERLINK \l "_Toc236644741"  A.	Applicability of Rules in Authorized
States 

  HYPERLINK \l "_Toc236644742"  B.	Effect on State Authorization 

  HYPERLINK \l "_Toc236644743"  VIII.	STATUTORY AND EXECUTIVE ORDER
REVIEWS 

  HYPERLINK \l "_Toc236644744"  A.	Executive Order 12866: Regulatory
Planning and Review 

  HYPERLINK \l "_Toc236644745"  B.	Paperwork Reduction Act 

  HYPERLINK \l "_Toc236644746"  C.	Regulatory Flexibility Act 

  HYPERLINK \l "_Toc236644747"  D.	Unfunded Mandates Reform Act of 1995 

  HYPERLINK \l "_Toc236644748"  E.	Executive Order 13132:  Federalism 

  HYPERLINK \l "_Toc236644749"  F.	Executive Order 13175:  Consultation
and Coordination with Indian Tribal Governments 

  HYPERLINK \l "_Toc236644750"  G.	Executive Order 13045:  Protection of
Children from Environmental Health Risks and Safety Risks 

  HYPERLINK \l "_Toc236644751"  H.	Executive Order 13211:  Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use 

  HYPERLINK \l "_Toc236644752"  I.	National Technology Transfer
Advancement Act 

  HYPERLINK \l "_Toc236644753"  J.	Executive Order 12898:  Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations 

  HYPERLINK \l "_Toc236644754"  K.	Congressional Review Act 

 

GENERAL INFORMATION

Does this final rule apply to me?

OECD revisions

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

Industry Sector	NAICS	SIC

Utilities	221100	4939

Petroleum and Coal Products Manufacturing 	324	29

Chemical Manufacturing	325100	28

Primary Metal Manufacturing	331	33

Fabricated Metal Product Manufacturing	332	34

Machinery Manufacturing	333	35

Computer and Electronic Product Manufacturing	334110	357

Electrical Equipment, Appliance, and Component Manufacturing	335	36

Transportation Equipment Manufacturing	336	37

Miscellaneous Manufacturing	339900	39

Scrap and Waste Materials 	423930	5093

Materials Recovery Facilities	562920	4953

	

SLAB revisions

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

Industry Sector	NAICS	SIC

Hazardous Waste Collectors	562112	4212

Recyclable Material Hauling, Long-Distance	484230	4213

Batteries, automotive, merchant wholesalers	423120	5013

Lead-acid storage batteries, manufacturing	335911	3691

Automotive Parts, Accessories, and Tire Stores	441310	5013

Tire Dealers	441320	5014

All other General Merchandise Stores	452990	5399

New Car Dealers	441110	5511

Recyclable Material Wholesaler	423930	5093

Other Waste Collection	562119	4212

Recyclable Material Collection Services, Solid Waste Collection	562111
4212

Marinas	713930	4493

General Freight Trucking, Long-Distance, TL	484121	4213

General Freight Trucking, Long-Distance, LTL	484122	4213

Specialized Freight Trucking	484200	4213

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

Freight Charter Services, Air	481212	4522

Freight Railways, Line-Haul	482111	4011

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

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



Exception report revisions for exports under subparts E and H of 40 CFR
part 262

	The exception report change to 40 CFR part 262, subpart E and subpart H
of this final rule affect all persons who export hazardous waste,
universal waste, or SLABs to any foreign country.  Potentially affected
entities may include, but are not limited to:

Industry Sector	NAICS	SIC

Utilities	221100	4939

Petroleum and Coal Products Manufacturing 	324	29

Chemical Manufacturing	325100	28

Primary Metal Manufacturing	331	33

Fabricated Metal Product Manufacturing	332	34

Machinery Manufacturing	333	35

Computer and Electronic Product Manufacturing	334110	357

Electrical Equipment, Appliance, and Component Manufacturing	335	36

Transportation Equipment Manufacturing	336	37

Miscellaneous Manufacturing	339900	39

Scrap and Waste Materials 	423930	5093



Import revisions

	The revisions regarding imports in this final rule affect all
facilities receiving imported hazardous waste from a foreign country
that must comply with either 264.71(a)(3) or 265.71(a)(3).  This
includes those hazardous waste import shipments originating in OECD
Member countries, as well as in non-OECD countries.  Potentially
affected entities may include, but are not limited to:

  

Industry Sector	NAICS	SIC

Hazardous Waste Collectors	562112	4212

Recyclable Material Wholesaler	423930	5093

Other Waste Collection	562119	4212

Recyclable Material Collection Services, Solid Waste Collection	562111
4212

Scrap and Waste Materials 	423930	5093

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
final rule to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT. 

List of acronyms used in this final rule

Acronym	Meaning

BCI	Battery Council International

CBI		Confidential Business Information

CERCLA		Comprehensive Environmental Response, Compensation, and
Liability Act

CFR		Code of Federal Regulations

EPA		U.S. Environmental Protection Agency

FR		Federal Register

HSWA		Hazardous and Solid Waste Amendments

LAB		Lead-Acid Battery

NAICS		North American Industrial Classification System

NTTAA		National Technology Transfer and Advancement Act

NAFTA		North American Free Trade Agreement

OECD		Organization for Economic Cooperation and Development

OMB		Office of Management and Budget

OSWER		Office of Solid Waste and Emergency Response

RCRA		Resource Conservation and Recovery Act

RFA		Regulatory Flexibility Act

SIC		Standard Industrial Classification

SLAB		Spent Lead-Acid Battery

SBREFA		Small Business Regulatory Enforcement Fairness Act

TRI		Toxics Release Inventory

UMRA		Unfunded Mandates Reform Act

What are the statutory authorities for this final rule?

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

BACKGROUND 

OECD revisions

What is the OECD?

The OECD is an international organization established in 1960 to assist
Member countries in achieving sustainable economic growth, employment,
and an increased standard of living, while simultaneously ensuring the
protection of human health and the environment.  OECD Member countries
are concerned with a host of international socio-economic and political
issues, including environmental issues.  To address these issues, the
OECD Council may negotiate Council Decisions, which are international
agreements that create binding commitments on the United States under
the terms of the OECD Convention, unless otherwise provided in the
Articles of the 1960 Convention.  One such Council Decision addresses
the transboundary movement of waste, which is the subject of this final
rule.  There are currently thirty OECD Member countries:  Australia,
Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France,
Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Luxembourg,
Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the
Slovak Republic, South Korea, Spain, Sweden, Switzerland, Turkey, the
United Kingdom, and the United States.  The OECD country website for
each Member country may be found at http://www.oecd.org/infobycountry/. 

What OECD Decisions form the basis of the OECD revisions in this final
rule?

The current RCRA regulations regarding waste shipments destined for
recovery within the OECD are found in 40 CFR part 262 subpart H.  These
regulations are based on the March 30, 1992, “Decision of the Council
C(92)39/FINAL Concerning the Control of Transfrontier Movements of
Wastes Destined for Recovery” (hereinafter referred to as the 1992
Decision) that EPA then promulgated as a final rule under RCRA on April
12, 1996 (61 FR 16289).  Since that time, the OECD has made a number of
changes to the waste shipment regime, necessitating changes to the RCRA
regulations. 

On June 14, 2001, the OECD Council amended the “Decision of the
Council C(92)39/FINAL Concerning the Control of Transfrontier Movements
of Wastes Destined for Recovery” by adopting “Revision of Decision
C(92)39/FINAL on the Control of Transboundary Movement of Wastes
Destined for Recovery Operations”(hereafter referred to as the 2001
OECD Decision).  The goal of the 2001 OECD Decision was to harmonize the
procedures and requirements of the OECD with those of the Basel
Convention and to eliminate duplicative activities between the two
international organizations as much as practical.  These changes include
revisions to the original established framework (such as reducing the
levels of control from a three-tiered system to a two-tiered system),
while also adding entirely new provisions (for example, the new
certificate of recovery requirement).  Subsequent to the 2001 OECD
Decision, an addendum, C(2001)107/ADD1 (hereafter referred to as the
2001 OECD Addendum), which consists of revised versions of the
notification and movement documents and the instructions to complete
them, was adopted by the OECD Council on February 28, 2002.  The
addendum was incorporated into the 2001 OECD Decision as section C of
Appendix 8, and the combined version was issued in May 2002 as
C(2001)107/FINAL.  The appendices of Decision C(2001)107/Final were
amended three times by   SEQ CHAPTER \h \r 1 C(2004)20, C(2005)141, and
C(2008)156.  The Decision, “Decision of the Council C(2001)107/FINAL,
Concerning the Control of Transboundary Movements of Wastes Destined for
Recovery Operations, as amended by C(2004)20; C(2005)141 and
C(2008)156,” is hereinafter referred to as the Amended 2001 OECD
Decision.

SLAB revisions

What are SLABs?

Lead-acid batteries (LABs) are secondary, wet cell batteries that
contain liquid and can be recharged for many uses.  They are the most
widely used rechargeable batteries in the world and are mainly used as
starting, lighting, and ignition (SLI) power batteries found in
automobiles and other vehicles.  A rechargeable SLAB is spent if it no
longer performs effectively and cannot be recharged.  Battery failure is
most commonly attributed to water loss and grid corrosion during normal
use.  SLABs are considered both solid and hazardous wastes under
Subtitle C of RCRA, because they are classified as spent materials that
exhibit the toxicity characteristic for lead (e.g., D008), and the
corrosivity characteristic for the sulfuric acid electrolyte in the
battery (e.g., D001).  For a full discussion of SLAB composition and how
SLABs are managed, please see Sections II.B.1 and II.B.2 of the proposed
rule (73 FR 58393).     

How must a business manage SLABs intended for domestic recycling or
disposal?

Businesses subject to the RCRA hazardous waste regulations may choose
from three options for managing hazardous waste spent lead-acid
batteries. They may manage the batteries under the streamlined standards
specifically for SLABs found in 40 CFR part 266 subpart G, the
streamlined Universal Wastes standards for all hazardous waste batteries
found in 40 CFR part 273, or the full Subtitle C hazardous waste
management regulations found in 40 CFR parts 262 - 264, 267, 268, and
270.  For the complete discussion of what these requirements entail for
disposal or recycling within the United States, please see Section
II.B.3 of the proposed rule (73 FR 58394).

What does a business have to do when exporting SLABs for recycling?

A company seeking to export SLABs may choose from the same three
regulatory options described above.  If they choose to follow the
universal waste regulations, exporters of SLABs for reclamation are
subject to the export requirements in 40 CFR part 273 (including the
notice and consent requirements) or, if the SLABs are to be exported to
an OECD Member country for recovery, the export requirements (including
notice and consent) in 40 CFR part 262, subpart H.  The second option
would be for the export to follow the full subtitle C hazardous waste
export regulations in 40 CFR part 262 subparts E or H.  Most likely,
SLAB exporters will choose to follow the regulatory provisions specific
to SLABs in 40 CFR part 266, subpart G.  Prior to today’s rule, under
part 266 SLABs that were destined for reclamation were exempt from the
RCRA export requirements in 40 CFR part 262, subparts E and H (including
the notice and consent requirements).  Today’s rule adds export
requirements to part 266 that mirror those that apply to universal
waste, as described later in this preamble.

Exception reports for hazardous waste exports

	Prior to this final rule, under 40 CFR part 262 subparts E and H,
exception reports were required to be submitted by the exporter to the
EPA Administrator if any of the following occurred:

(1) the exporter did not receive a copy of the RCRA hazardous waste
manifest (if applicable) signed by the transporter identifying the point
of departure of the waste from the United States, within forty-five (45)
days from the date it was accepted by the initial transporter;

(2) Within ninety (90) days from the date the hazardous waste was
accepted by the initial transporter, the exporter did not receive
written confirmation from the recovery facility that the hazardous waste
was received;

(3) The hazardous waste was returned to the United States.

Documenting hazardous waste import shipments 

	Prior to this final rule, under §§ 264.71(a)(3) and 265.71(a)(3),
U.S. receiving treatment, storage, and disposal facilities (TSDFs) had
to submit a copy of the hazardous waste manifest to EPA to document
individual hazardous waste import shipments within 30 days of shipment
delivery.

Proposed Rule 

On October 6, 2008, EPA published a Federal Register notice seeking
comment on proposed revisions to the requirements regarding the export
and import of hazardous wastes from and into the United States (see 73
FR 58388 and following pages).  First, we proposed to modify the
requirements concerning the transboundary movement of hazardous waste
destined for recovery among Member countries to the OECD in order to
implement the Amended 2001 OECD Decision.  The changes, largely in 40
CFR part 262 subpart H, included reducing the number of control levels,
exempting qualifying shipments sent for laboratory analyses from certain
paperwork requirements, requiring recovery facilities to submit a
certificate of recovery, adding provisions for the return or re-export
of wastes subject to the Amber control procedures, and clarifying
certain existing provisions that were identified as potentially
ambiguous to the regulated community.  Second, we proposed to amend the
regulations in 40 CFR part 266 subpart G regarding the management of
SLABs being reclaimed to require notice and consent for those batteries
intended for reclamation in a foreign country, mirroring the existing
export requirements for exports of RCRA universal waste batteries, to
create a more uniform practice for exporting SLABs for recovery under
RCRA.  Third, we proposed a technical correction in the exception
reporting requirements of §§ 262.55 and 262.87(b) for hazardous waste
exports to specify that all exception reports submitted to EPA be sent
to the International Compliance and Assurance Division in the Office of
Enforcement and Compliance Assurance’s Office of Federal Activities in
Washington, D.C. rather than to the Administrator to ensure better
oversight of return shipments to the U.S. and compliance with the
exception reporting requirements without any additional regulatory
burden for U.S. exporters.  Fourth and last, we proposed to amend:  the
hazardous waste import requirements in 40 CFR part 262 subpart F to
require that U.S. importers give the initial transporter a copy of the
EPA-provided documentation confirming EPA’s consent to the import of
the hazardous waste when they provide the RCRA hazardous waste manifest;
and, the import shipment document submittal requirements in §§
264.71(a)(3) and 265.71(a)(3) to require that the U.S. receiving
facility submit to EPA a copy of the EPA consent documentation along
with the RCRA hazardous waste manifest within thirty days of import
shipment delivery.  Both proposed amendments were intended to improve
EPA’s oversight of such imports.  For a more detailed description of
the proposed revisions, as well as the intended benefits of each
revision, please see Section I.D of the proposed rule (73 FR 58390 and
following pages).

The Agency received four sets of comments in response to its October 6,
2008 proposal.  The more significant comments on this proposal are
addressed later in this preamble, but all are addressed in background
documents for today’s final rule, which are in the docket.  After
considering all comments, we are finalizing the revisions substantially
as proposed, with one modification.  

SUMMARY OF THE FINAL RULE

Changes to   SEQ CHAPTER \h \r 1 40 CFR 262.10(d)

This final rule updates § 262.10(d) to reflect that export shipments
of SLABs being managed under 40 CFR part 266, subpart G that are
destined for recovery in any of the OECD Member countries listed in
§ 262.58(a)(1) are now subject to 40 CFR part 262, subpart H.  This
change is necessary to conform with the scope in the updated §
262.80(a). 

Changes to   SEQ CHAPTER \h \r 1 40 CFR part 262, subpart E

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

Changes to 40 CFR part 262, subpart H   

	All but the last three changes discussed below are necessary to conform
to the revisions in the Amended 2001 OECD Decision.  These changes range
from substantive revisions and amendments to changes in terminology to
simple editorial changes.  Collectively, these changes serve to
implement the Amended 2001 OECD Decision, as well as clarify certain
sections that were previously ambiguous to the regulated community. 
Changes to 40 CFR part 262, subpart H include:

Changes in terminology

In the Amended 2001 OECD Decision, the OECD Council updated several
terms and definitions used in the 1992 Decision.  EPA believes that
these changes do not result in substantive changes to the intent of the
requirements, but merely bring them in line with current terminology
used in practice and in other international agreements.  To limit any
unnecessary confusion between the U.S. regulations and those of other
OECD Member countries and to promote consistency with the Amended 2001
OECD Decision, this final rule adopts the following changes in
terminology:

“transfrontier” to “transboundary”;

“tracking document” to “movement document”;

“amber-list controls” to “Amber control procedures”;

“notifier” to “exporter”; and

“consignee” to “importer.”

  SEQ CHAPTER \h \r 1 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, and 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 making
these same conforming changes to EPA’s OECD rule.  

Wastes subject to the Green control procedures are those wastes listed
in Parts I and II of Appendix 3 to the Amended 2001 OECD Decision.  Part
I contains wastes listed in Annex IX of the Basel Convention, to which
the OECD has made and noted adjustments, as appropriate.  Part II
contains additional wastes subject to the Green control procedures,
which the OECD has assessed as not posing any risk to human health or
the environment under its risk criteria.  	

Wastes subject to the Amber control procedures are those wastes listed
in Parts I and II of Appendix 4 to the Amended 2001 OECD Decision.  Part
I contains wastes listed in Annexes II and VIII of the Basel Convention,
to which the OECD has made and noted adjustments, as appropriate.  Part
II contains additional wastes subject to the Amber control procedures,
which the OECD has assessed as posing a risk to human health or the
environment under its risk criteria.  Further, all wastes formerly
appearing on the Red list are subject to the Amber control procedures.

U.S. importers and exporters of hazardous waste subject to the subpart H
requirements of 40 CFR part 262 should be aware that wastes listed in
Part I of both the new OECD Amber and Green waste lists have not
retained their OECD waste codes.  Consequently, the relevant Basel waste
codes should be used when implementing the export and import procedures.
 However, wastes listed in Part II of both the new OECD Amber and Green
waste lists do retain their original OECD waste codes, as listed in the
1992 Decision.  This two-part system is necessary to ensure that wastes
not yet explicitly listed under the Basel Convention will continue to
have the same level of control applied to them when destined for
recovery under the Amended 2001 OECD Decision.  

Both the Green waste list and the Amber waste list are cited in
§ 262.89.  This rule amends § 262.89(d) to incorporate by reference
the most current OECD waste lists from the Amended 2001 OECD Decision. 
Further, the elimination of the Red list allows for the consolidation of
the provisions currently found in § 262.89(b) and (c), which appears
in new final § 262.89(b). 

References to unlisted wastes have been eliminated in favor of “wastes
not covered in Appendices 3 and 4 of the OECD Decision”

Section 262.83(d) previously addressed the general notification
requirements for unlisted wastes.  Today’s rule renumbers this section
as § 262.83(c) since the previous § 262.83(c) addressed “Red-list
wastes,” which is no longer included in the final rule.  Today’s
rule also replaces the term “unlisted wastes” with the phrase
“wastes not covered in Appendices 3 and 4 of the OECD Decision,” 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.  SEQ CHAPTER \h \r 1 

Transboundary movements may now qualify for a laboratory analysis
exemption

The Amended 2001 OECD Decision allows Member countries to decide through
their domestic laws and regulations that waste samples normally subject
to the Amber control procedures will only be subject to the Green
control procedures (e.g., the existing controls normally applied in
commercial transactions) if such samples are destined for laboratory
analyses to assess its physical or chemical characteristics, or to
determine its suitability for recovery operations, and providing that
the amount of the waste samples qualifying for this exemption are not
more than the minimum quantity reasonably needed to perform the analyses
adequately in each particular case up to a maximum of twenty-five
kilograms (25 kg /55 lbs).  Analytical samples also must be
appropriately packaged and labeled and must be carried out under the
terms of all applicable international transport agreements. 
Furthermore, any transboundary movement of such samples through non-OECD
Member countries shall be subject to international law and to all
applicable national laws and regulations.  

This final rule allows waste samples that are sent for laboratory
analyses to be controlled under the Green control procedures, as opposed
to the Amber control procedures, provided they meet the same conditions
as set forth in the Amended 2001 OECD Decision.

U.S. exporters should be aware, however, that even if their shipments
qualify for the laboratory analyses exemption under U.S. domestic law,
some Member countries may elect to still apply the Amber control
procedures to such shipments, requiring the exporter of a waste sample
for laboratory analyses to inform the competent authorities of such a
movement.  Therefore, we recommend that U.S. exporters check with the
competent authorities of each country to find out if they require the
Amber control procedures for a sample that would qualify for the
laboratory analyses exemption.

Recovery facilities must submit a certificate of recovery

This final rule implements the Amended 2001 OECD Decision’s
requirement that a duly authorized representative of the recovery
facility submit a certificate of recovery to all interested parties
(i.e., exporter, country of export, country of import), documenting that
recovery of the waste has been completed.  A valid certificate of
recovery is defined as a signed, written and dated statement that
affirms that the waste was recovered in the manner agreed to by the
parties to the contract.  This final rule also requires, as does the
Amended 2001 OECD Decision, that the recovery facility send the
certificate of recovery as soon as possible, but no later than thirty
(30) days after the completion of recovery and no later than one (1)
calendar year following the receipt of the waste by the recovery
facility to the exporter and competent authorities of the countries of
export and import by mail, e-mail followed by mail, or fax followed by
mail.  This final rule incorporates the certificate of recovery
provisions of the Amended 2001 OECD Decision in § 262.83(e).

The Amended 2001 OECD Decision states that the completion of block 19 of
the OECD movement document, and the submission of signed copies to the
exporter and relevant competent authorities, fulfils the certificate of
recovery requirement.  Although the OECD movement document is
recommended, the Amended 2001 OECD Decision does not require recovery
facilities to use it.

While some recovery facilities may not be subject to the import and
other requirements because they are not importing RCRA hazardous waste,
these entities should be aware that the competent authorities of the
exporting Member countries may still impose the conditions outlined in
the Amended 2001 OECD Decision before the transactions can be completed.
 Thus, if the waste is considered non-hazardous in the United States,
EPA would not require a certificate of recovery from a U.S. facility. 
However, the competent authority of the country of export may require a
certificate of recovery, and may require that the exporter include such
a requirement in the contract between the exporter and importer.

Amendments to the notification requirements

The Amended 2001 OECD Decision introduced a series of notification
requirements that oblige EPA to make conforming amendments to its
hazardous waste regulations.  Specifically, this final rule amends §
262.83(e) (which has been renumbered as § 262.83(d)) by incorporating
several new items that must be included in the notification, including: 
                                                                        
                                                                        
                                                                        
                       

Exporter and importing recovery facility e-mail address;

E-mail address for importer (if different from the importing recovery
facility);

Address, telephone, fax, and e-mail of intended transporter(s);

Means of transport envisioned; and 

Specification of the type of recovery operation(s) that will be used.

Amendments to procedures for exports to pre-approved facilities 

	Under the Amended 2001 OECD Decision and its predecessor, 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 certain hazardous waste imports under simplified and
accelerated notification procedures.  For these facilities, the
competent authority must inform the OECD secretariat that the facility
is pre-approved, and the waste types that are acceptable for recovery. 
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 time period for objection
to transboundary movements to pre-approved facilities and lengthened the
allowable coverage period for notifications.  Specifically, the Decision
established a time period of seven (7) working days during which the
relevant competent authorities may object to the transboundary movements
of waste to pre-approved facilities.  The Decision also established that
the allowable coverage period for general notifications (or the period
of time for which a consent may be granted) may extend up to three (3)
years.  Today’s final rule amends the current regulations to
incorporate these changes in § 262.83(b)(2)(ii) to reflect the seven
(7) day time period and in § 262.83(b)(2)(i) to reflect the allowable
coverage period of up to three (3) years for notifications.	

New procedures for the pretreatment of hazardous wastes at R12/R13
recovery facilities

The final rule incorporates the Amended 2001 OECD Decision’s new
requirements for R12 and R13 recovery facilities.  R12 and R13 recovery
facilities are transfer and storage/accumulation facilities,
respectively, that do not recover the wastes themselves.  Because
hazardous wastes destined for recovery may have to undergo treatment
before a R1-R11 recovery facility actually recovers them, the OECD
considers R12 and R13 facilities as “intermediate or temporary
operations.”  The primary reason for the new requirements is to ensure
that the subsequent R1-R11 recovery operation receives the hazardous
waste and completes its recovery in an environmentally sound manner.

Specifically, when the notification document lists an   SEQ CHAPTER \h
\r 1 R12/R13 recovery facility, the exporter must indicate in the same
notification document the recovery facility or facilities where the
subsequent R1-R11 recovery operation takes place or may take place.  In
addition, the R12/R13 recovery facility shall:

certify the receipt of the hazardous waste by sending a copy of the duly
completed movement document within three (3) working days of the receipt
of such wastes to the exporter and all competent authorities concerned;

retain the original movement document for three (3) years;

certify the completion of the R12/R13 recovery operation by submitting a
certificate of recovery as soon as possible, but no later than thirty
(30) days after the completion of the R12/R13 recovery operation at that
facility and no later than one (1) calendar year following the receipt
of the waste by the R12/R13 recovery facility; and

send the certificate of recovery to the exporter and to the competent
authorities of the countries of export and import by either mail, e-mail
followed by mail, or by fax followed by mail.    

The control procedures applied to the transboundary movement of
hazardous waste from an R12/R13 recovery facility to a subsequent R1-R11
recovery facility vary depending on whether these facilities are located
within the same Member country or in a different Member country.  

When the subsequent R1-R11 recovery facility is located within the same
Member country, the R12/R13 recovery facility must obtain from the
subsequent R1-R11 recovery facility a certificate that the “final”
recovery of the hazardous waste at that facility has been completed
within one (1) calendar year following the delivery of the hazardous
waste to the R1-R11 facility.  The format of the certificate of recovery
is not fixed, but it must, at a minimum, identify the code number of the
notification document and the serial number of the movement documents to
which it pertains.  The R12/R13 recovery facility must then transmit the
certification document prepared by the R1-R11 recovery facility to the
competent authorities of the countries of import and export as soon as
possible, but no later than one (1) calendar year following the delivery
of the hazardous waste to the R1-R11 recovery facility.

When the subsequent R1-R11 facility is not located in the same Member
country as the R12/R13 facility, a new notification must be made for the
transboundary movement of hazardous waste by the R12/R13 recovery
facility.  In addition, the applicable procedures differ depending upon
the country where the final recovery operation occurs.  In particular,
if the final R1-R11 recovery facility is located in the initial country
of export, then the normal Amber control procedures shall apply.  In
this case, the R12/R13 facility must submit a new notification document
to its competent authority and obtain consent from its competent
authority and from the initial country of export to the export of the
hazardous waste back to that country for final recovery.  If, however,
the final R1-R11 recovery facility is located in a country different
from the initial country of export, then the Amber control procedures
shall apply, but also the movement will in effect be treated as a
“re-export” of waste to a third country.  In this case, not only is
a new notification document required, but the competent authority of the
initial country of export must also be notified of the transboundary
movement, and consent must be obtained from the original country of
export and the new countries of import, export, and transit.  For
example, if a hazardous waste is exported from the United States to a
R12/R13 facility in France, and then will be sent to a subsequent R1-R11
recovery facility in Germany, the R12/R13 facility in France must submit
a notification to and obtain consent from France (the new country of
export), the United States (the original country of export) and Germany
(the new country of import for final recovery).

The final rule incorporates all of these requirements in § 262.82(f).

  SEQ CHAPTER \h \r 1 New provisions regarding mixtures of hazardous
wastes

The Amended 2001 OECD Decision contains controls and provisions related
to the mixture of hazardous waste.  Specifically, the Amended 2001 OECD
Decision defines a mixture of hazardous waste as one that results from
the intentional or unintentional mixing of two or more different
hazardous wastes.  However, under the Amended 2001 OECD Decision, a
single shipment of hazardous wastes, consisting of two or more wastes,
where each is separated, is not considered a mixture of hazardous waste.
 

The Amended 2001 OECD Decision also provides that: 

A mixture of two or more Green wastes should be subject to the Green
control procedures.  However, the regulated community should be aware
that some OECD Member countries may require, by domestic law that
mixtures of different Green wastes be subject to the Amber control
procedures.	

  SEQ CHAPTER \h \r 1 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.

A mixture containing two or more Amber wastes is subject to the Amber
control procedures.

In this final rule, EPA has revised the text in § 262.82(a) to clarify
that only those wastes and waste mixtures considered hazardous under
U.S. national regulations will be subject to the Amber control
procedures within the United States.  This is consistent with
longstanding EPA policy, and should minimize confusion for the regulated
community.  For example, under the existing RCRA hazardous waste
regulations, any mixture of an Amber waste that exhibits one or more of
the hazardous characteristics of ignitability, corrosivity, reactivity,
or toxicity under RCRA with a Green waste shall be considered an Amber
waste if the mixture still exhibits one or more of the RCRA hazardous
waste characteristics and, thus, be subject to the Amber control
procedures.  Conversely, if the resulting mixture no longer exhibits one
or more of the RCRA hazardous characteristics, it will instead be
considered a Green waste, and be subject to the Green control
procedures.  

Because other OECD Member countries may require that the mixtures listed
above (that the U.S. sometimes considers subject to the Green control
procedures) be subject to Amber control procedures, the final rule
includes notes stating that other OECD Member countries may subject such
mixtures to the Amber control procedures.  In such cases, U.S. importers
and exporters should be prepared to follow the Amber control procedures
within those OECD Member countries.  

Finally, the Amended 2001 OECD Decision requires that notification for a
transboundary movement of a mixture of hazardous wastes falling under
the Amber control procedures should be made by the person performing the
mixing activity (the generator of the mixture) or any other person
acting as an exporter in place of the person performing the mixing
activity.  In the notification, relevant information on each fraction of
the waste, including its code numbers, has to be given in order of
importance.  This final rule imposes these requirements in 40 CFR
262.82(a)(3).

New provisions regarding the return and re-export of hazardous wastes
subject to the Amber control procedures

This final rule adopts the Amended 2001 OECD Decision’s more precise
provisions (than the earlier 1992 Decision) on measures to be taken in
case a transboundary movement of hazardous waste is subject to the Amber
control procedures and cannot be completed as intended (e.g., not in
accordance with the notification, consents given by the competent
authorities, or the terms of the contract).  There may be a number of
reasons for this non-completion, for example, an accident during the
transport of the hazardous waste, improper notification, or any illegal
action taken by someone involved with the movement of the hazardous
waste.

The Amended 2001 OECD Decision provides that if this uncompleted
movement of hazardous waste (hereafter referred to as the
“incident”), takes place in the country of import, the competent
authority of that country shall immediately inform the competent
authority of the country of export.  The competent authorities of the
concerned countries are to cooperate in resolving the incident by making
all necessary arrangements to ensure the best alternative management of
the hazardous waste.  If alternative arrangements cannot be made to
recover these wastes in an environmentally sound manner in the country
of import, the hazardous waste must be returned to the country of export
or re-exported to a third country.

Return of hazardous waste to the country of export

Under the Amended 2001 OECD Decision, the return of the hazardous waste
to the country of export is to take place within ninety (90) days from
the time when the country of export was informed of the incident, unless
the concerned countries agree to another period of time.  The competent
authorities of both countries of export and transit (if applicable) are
to be informed about the return of the hazardous waste and the reasons
for its return.  These authorities are prohibited from opposing or
preventing the return of the hazardous waste to the country of export,
so long as the movement complies with the requirements set out by the
country of export’s domestic law.  If the waste is returned through a
country of transit, the competent authority of that country is to be
notified and consent obtained in accordance with the normal Amber
control procedures.  

When the incident occurs in the United States, the U.S. importer must
inform EPA of the need to return the shipment.  EPA will then inform the
countries of export and transit, citing the reason(s) for returning the
waste, and request written consent to the return by any transit country
as needed.  If the return shipment will cross any transit country, the
return shipment may only occur after EPA provides a copy of the transit
country’s consent to the U.S. importer.  The U.S. importer must
complete the return within ninety (90) days from the time EPA informs
the country of export of the need to return the waste unless otherwise
informed by EPA in writing of an alternate timeframe for the return.    

When the incident involves an export shipment from the United States,
the U.S. exporter must provide for the return of the hazardous waste
shipment within ninety (90) days from the time the country of import
informs EPA of the need to return the shipment unless otherwise informed
by EPA in writing of an alternate timeframe for the return.  The U.S.
exporter must also submit an exception report to EPA.  

Re-export of hazardous waste from the country of import to a third
country

Under the Amended 2001 OECD Decision, the re-export from the country of
import to a third country is considered a new transboundary movement of
hazardous waste.  As a result, the Amber control procedures are
applicable.  The initial importer becomes the exporter of the hazardous
waste and, consequently, assumes all responsibilities as an exporter. 
In addition, the notification must also include the competent authority
of the initial country of export who, in accordance with the Amber
control procedures, may object to the re-export if the movement does not
comply with the requirements set out by its domestic law.  Re-export of
a hazardous waste shipment from the United States to a third country may
therefore only occur after the importer (acting as the new exporter)
submits a notification to EPA in compliance with the notice and consent
procedures of §262.83 and obtains consent from the original country of
export, the new country of import, and any transit countries.

Return of hazardous waste from the country of transit to the country of
export

If the incident takes place in the country of transit, the exporter
should make arrangements so that the hazardous waste still can be
recovered in an environmentally sound manner in the recovery facility of
the importing country to where it was originally destined.  The
competent authority of the country of transit is to immediately inform
the competent authorities of the countries of export and import and any
other countries of transit.  If the exporter is unable to arrange for
the recovery of the hazardous waste in an environmentally sound manner
at the recovery facility to where it was originally destined, the
hazardous waste should be returned, adhering to subsection (a) above, to
the country of export within ninety (90) days from the time when the
country of export was informed of the incident or such other period of
time as the concerned countries agree.  The competent authorities of the
country of export and the countries of transit are to be informed of the
return, but they are prohibited from opposing or preventing the return
of the hazardous wastes to the country of export, so long as the
movement complies with the requirements set out by the country of
export’s domestic law.  

When the United States is the transit country where the incident occurs,
the U.S. transporter must inform EPA of the need to return the shipment.
 EPA will then inform the country of export, citing the reason(s) for
returning the waste.  The U.S. transporter must then complete the return
within ninety (90) days from the time EPA informs the country of export
of the need to return the waste unless otherwise informed by EPA in
writing of an alternate timeframe for the return.  

When the waste shipment from the incident originated in the United
States, the U.S. exporter must provide for the return of the hazardous
waste shipment within ninety (90) days from the time the country of
transit informs EPA of the need to return the shipment unless otherwise
informed by EPA in writing of an alternate timeframe for the return. 
The U.S. exporter must also submit an exception report to EPA.    

This final rule sets forth these re-export and return provisions of the
Amended 2001 OECD Decision in §§ 262.82(c), 262.82(d), and 262.82(e).

SLABs are now covered by EPA’s OECD rule

This final rule updates § 262.80(a) and § 262.89(a) to reflect that
export shipments of SLABs being managed under 40 CFR part 266, subpart G
that are destined for recovery in any of the OECD Member countries
listed in § 262.58(a)(1) are subject to 40 CFR part 262, subpart H. 

 Technical Corrections to EPA’s OECD rule

This final rule makes several technical corrections to EPA’s current
OECD rule, including corrections to capitalization, syntax, and
punctuation errors.  In these changes, EPA is not making any substantive
revisions, but is seeking to eliminate any confusion on the part of the
regulated community by striving for consistency both within the
regulations and with the terms of the Amended 2001 OECD Decision.  Some
examples of these types of revisions include changing “Subpart” to
“subpart,” “OECD member” to “OECD Member,” and “thirty
days” to “thirty (30) days.” 

Change to the submittal address for exception reports

This final rule amends the exception reporting requirements in
§ 262.87(b) to specify that all exception reports are to be submitted
to the International Compliance and Assurance Division in the Office of
Enforcement and Compliance Assurance’s Office of Federal Activities in
Washington, D.C. rather than the Administrator.  

Changes to 40 CFR 263.10(d)

This final rule updates § 263.10(d) to reflect that export shipments
of SLABs being managed under 40 CFR part 266, subpart G that are
destined for recovery in any of the OECD Member countries listed in
§ 262.58(a)(1) are now subject to 40 CFR part 262, subpart H.  This
change is necessary to conform with the scope in the updated §
262.80(a). 

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

This final rule amends §§ 264.12(a)(2) and 265.12(a)(2) by, among
other things, requiring owners or operators of recovery facilities to
submit a certificate of recovery as soon as possible after the recovery
is completed, but no later than thirty (30) days after the completion of
recovery and no later than one (1) calendar year following the receipt
of the hazardous waste.  This change is necessary to conform to the
Amended 2001 OECD Decision. 

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

This final rule amends §§ 264.71(a)(3) and 265.71(a)(3) by requiring
owners or operators of facilities receiving imported hazardous wastes to
submit to EPA a copy of the relevant written documentation of EPA’s
consent to the import along with a copy of the RCRA hazardous waste
manifest for the incoming shipment within thirty (30) days of shipment
delivery.  This will enable EPA to match the individual shipment
manifest to the consent for an annual notice from a foreign exporter.

Changes to 40 CFR 266.80(a)

	EPA is amending the table located at 40 CFR 266.80 by including two
additional rows to the current table.  These additional rows contain the
new provisions that require exporters and transporters of SLABs being
sent to a foreign country for reclamation to meet the universal waste
requirements concerning the export of SLABs for reclamation.  

Specifically, exporters will need to either comply with the requirements
in 40 CFR part 262, subpart H when the shipments are destined to any of
the OECD Member countries listed in § 262.58(a)(1), or with the
following requirements when the shipments are destined for any country
not listed in § 262.58(a)(1):  

Comply with the requirements applicable to a primary exporter in 40 CFR
262.53, 262.56(a) (1) through (4), (6), and (b) and 262.57;

Export such SLABs only upon consent of the receiving country and in
conformance with the EPA Acknowledgement of Consent as defined in
subpart E of 40 CFR part 262 of this chapter; and

Provide a copy of the EPA Acknowledgment of Consent for the shipment to
the transporter transporting the shipment for export.

	The transporter of SLABs being sent to a foreign country for
reclamation will need to comply with the applicable requirements in 40
CFR part 262, subpart H when the shipments are destined to any of the
OECD Member countries listed in § 262.58(a)(1).  For export shipments
of SLABs destined for a country not listed in § 262.58(a)(1), such as
Canada or Mexico, the transporter will not be able to accept a shipment
if the transporter knows the shipment does not conform to the EPA
Acknowledgment of Consent, and will have to ensure that:

A copy of the EPA Acknowledgment of Consent accompanies the shipment;
and

The shipment is delivered to the foreign facility designated by the
person initiating the shipment.

The new requirements at 40 CFR 266.80 will ensure greater protection of
human health and the environment through notification, tracking, and
management of SLABs.  In addition to harmonizing the RCRA hazardous
waste regulations for SLABs with the notification and consent
requirements in the RCRA universal waste rules, today’s final rule
harmonizes the export requirements for SLABs with the Amended 2001 OECD
Decision.  (Note that the exemption from the RCRA hazardous waste
manifest requirements for exporters and transporters of SLABs for
reclamation will continue to remain in effect, although SLAB shipments
for recovery to any of the OECD Member countries listed in §
262.58(a)(1) must be accompanied by a movement document per § 262.84
that is separate from the RCRA hazardous waste manifest.)

The table located at 40 CFR 266.80 describes the various kinds of SLAB
handlers and their respective legal requirements. Some SLAB handlers may
find that more than one description located in the table applies to
their SLAB management activities.  It is the SLAB handler’s
responsibility to read all seven descriptions and carefully consider any
and all requirements which may apply. 

Export Shipments of SLABs to OECD Member countries listed in 
262.58(a)(1) 

Exporters and transporters of SLABs destined for reclamation in any of
the OECD Member countries listed in § 262.58(a)(1) will have to comply
with all applicable sections of 40 CFR part 262, subpart H for wastes
subject to the Amber control procedures.  For a complete listing of the
final OECD requirements, exporters and transporters should consult the
regulatory text for 40 CFR part 262, subpart H in this final rule.  In
addition to the changes in subpart H discussed in earlier sections, the
applicable Amber control procedures include, but are not limited to, the
following:

Notification of Intent to Export

Exporters of SLABs destined for reclamation are required to comply with
the Amber control procedures in § 262.83.  Under the Amber control
procedures, an exporter must submit a complete notification to EPA of
its intent to export at least 45 days before the export is scheduled to
leave the United States (or at least ten days if the shipment is going
to a pre-approved facility in the country of import).  The notification
can cover export activities spanning a period of up to and including 12
months (or up to three years, depending on the procedures of the
importing country, if the shipment is going to a pre-approved facility
in the country of import).  Exporters may use the OECD Notification form
in Appendix 8 of the Amended 2001 OECD Decision, or whatever
notification form may be required by the country of import, but are not
required by EPA to do so.  

A complete notification includes, but is not limited to:

Contact information and the EPA ID number (if applicable) for the
exporter; 

Point of departure from country of export;

A waste description and quantity of the hazardous waste being exported;

The RCRA waste code(s) (if applicable), United Nations number, and OECD
waste code for the hazardous waste (SLABs are classified as Amber waste
A1160 under the Amended 2001 OECD Decision);

Planned mode(s) of transportation;

Contact information for all intended transporters; 

Contact information and the OECD recovery operation code(s) (e.g., R1
– R13) for both the importer and the final recovery facility (if
different sites);

The requested period of exportation; 

A list of all transit countries, along with the points of entry and
departure, through which the hazardous waste will be sent; and 

A certification by the exporter that a contract or chain of contracts or
equivalent arrangements among all parties to the final shipment are in
place and are legally enforceable in all concerned countries.  

If the notification is complete, EPA will forward it to the importing
country and any transit country(ies).  Within three working days of
receiving the notification, the importing country must send either an
Acknowledgement of Receipt or a list of items that the notification
lacks directly to U.S. EPA, to the exporter, and to any countries of
transit.  The countries of import and transit have thirty (30) days from
the date on the Acknowledgement of Receipt (seven days for shipments
going to pre-approved facilities) to object or consent explicitly to the
proposed shipment.  Any explicit objection or consent by the country of
import or transit will be sent simultaneously to U.S. EPA, the exporter,
and any other interested country (e.g., of import or transit).  If no
objections are submitted within the thirty day (30) period (seven days
for shipments going to 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.  

The subsequent SLAB shipments must be in accordance with the information
from the notification that was reviewed and approved by the receiving
country in its consent.  Any changes to the information listed in the
notification, such as changes to proposed total amounts to be exported
or the ports of entry to be used, would require renotification and
shipments could not take place until either tacit or written consent was
obtained. 

Shipment Tracking  

Under § 262.84, shipments of SLABs that are exported must be
accompanied by a movement document from the initiation of the shipment
until it reaches the final recovery facility.  This movement document is
described in § 262.84 and is different from the RCRA hazardous waste
manifest.  Exporters may use the OECD Movement form in Appendix 8 of the
Amended 2001 OECD Decision, or whatever movement form may be required by
the country of import, but are not required by EPA to use any particular
form.  Exporters must provide the initial transporter with the movement
document.  Transporters are prohibited from accepting a shipment of
SLABs without such a movement document, and are required to ensure that
the movement document accompanies the shipment from the initiation of
the shipment until it reaches the final recovery facility.  The movement
document must include all the information from the notification, as well
as the following:

Date movement commenced;

Name (if not the exporter), address, telephone and fax numbers, and
e-mail of person originating the movement document (Note that this
person is equivalent to the primary exporter under 40 CFR part 262,
subpart E);

Company name and EPA ID number (if applicable) of all transporters;

Identification (license, registered name or registration number) of
means of transport, including types of packaging envisaged;

Any special precautions to be taken by transporter(s) during
transportation;

Certification/declaration signed by the exporter that no objection to
the shipment has been lodged; and

Appropriate signatures for each custody transfer (e.g., transporter,
importer, and owner or operator of the recovery facility).  

Annual Reporting

Under § 262.87(a), any person exporting SLABs who meets the definition
of primary exporter in § 262.51 or who initiates the movement document
under § 262.84 will have to submit to the International Compliance and
Assurance Division in the Office of Enforcement and Compliance
Assurance’s Office of Federal Activities in Washington, D.C., 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.

Exception Reporting

	Under § 262.87(b), any person exporting SLABs who meets the
definition of primary exporter in § 262.51 or who initiates the
movement document under § 262.84 must file an exception report with the
International Compliance and Assurance Division in the Office of
Enforcement and Compliance Assurance’s Office of Federal Activities in
Washington, D.C., if either of the following occurs:

Within ninety (90) days from the date the SLAB shipment was accepted by
the initial transporter, the exporter has not received written
confirmation from the recovery facility that the SLAB shipment was
received; or

The SLAB shipment is returned to the United States.

Recordkeeping

Under § 262.87(c), any person exporting SLABs who meets the definition
of primary exporter in § 262.51 or who initiates the movement document
under § 262.84 must keep the following records:

a copy of each notification of intent to export and all written consents
obtained from the competent authorities of countries concerned (e.g.,
export, transit, and import) for a period of at least three (3) years
from the date the SLAB shipment was accepted by the initial transporter;

A copy of each annual report for a period of at least three (3) years
from the due date of the report;

A copy of any exception reports and a copy of each confirmation of
delivery (i.e., movement document) sent by the recovery facility to the
exporter for at least three (3) years from the date the SLAB shipment
was accepted by the initial transporter or received by the recovery
facility, whichever is applicable; and

A copy of each confirmation of recovery sent by the recovery facility to
the exporter for at least three (3) years from the date that the
recovery facility completed the processing of the SLAB shipment.

Export Shipments of SLABs to countries not listed in § 262.58(a)(1)  

Notification of Intent to Export

Exporters of SLABs destined for reclamation in countries not listed in
§ 262.58(a)(1), such as Canada or Mexico, are required to comply with
the primary exporter notification requirements in § 262.53, and may
export the SLABs only upon consent of the receiving country and in
conformance with the EPA Acknowledgement of Consent, as defined in 40
CFR part 262, subpart E.  Specifically, the exporter has to submit a
complete notification of its intent to export to EPA at least 60 days
before the export is scheduled to leave the United States.  The
notification can cover export activities spanning a period of up to and
including 12 months.  This complete notification contains:

Contact information and the EPA ID number (if applicable) for the
primary exporter;

A description and quantity of the SLABs to be exported;

The RCRA waste code(s) (if applicable), U.S. DOT proper shipping name,
hazard class, and United Nations number as identified in 49 CFR parts
171 through 177;

Planned mode(s) of transportation and type(s) of containers;

A description of the manner in which the SLABs will be treated, stored,
or disposed of (including recovery) in the receiving country;

The planned frequency and time period of exportation;

A list of all transit countries through which the SLABs will be sent,
and a description of the approximate length of time the hazardous waste
will remain in each country and the nature of its handling while there;

All points of entry to and departure from each foreign country through
which the SLABs will pass; and

The name and site address of the consignee and any alternate consignee.

If after proper notification, the receiving country consents to the
receipt of the hazardous waste, EPA will forward an EPA Acknowledgment
of Consent to the exporter.  If, on the other hand, the receiving
country objects to the receipt of the hazardous waste or withdraws a
prior consent, EPA will notify the exporter in writing.  EPA will also
notify the exporter of any responses from transit countries.  

The subsequent SLAB shipments must be in accordance with the information
from the notification that was reviewed and approved by the receiving
country in its consent.  Any changes to the information listed in the
notification (with the exception of changes to the primary exporter’s
telephone number, the listed means of transportation, or a decrease in
the total amount to be exported) would require renotification and
shipments could not take place until the exporter received an EPA
Acknowledgement of Consent for the renotification.

Shipment documentation and tracking

	Exporters of SLABs must provide a copy of the EPA Acknowledgment of
Consent for the SLAB shipment to the transporter transporting the
shipment for export.  Transporters are prohibited from accepting a SLAB
export shipment if the transporter knows the shipment does not conform
to the EPA Acknowledgment of Consent.  In addition the transporter must
ensure that:

A copy of the EPA Acknowledgment of Consent accompanies the SLAB export
shipment; and

The SLAB export shipment is delivered to the facility designated by the
person initiating the shipment.

	Unlike SLAB export shipments to countries listed in § 262.58(a)(1)
that must comply with 40 CFR part 262, subpart H, SLAB export shipments
destined for countries not listed in § 252.58(a)(1) do not have any
shipment tracking documentation requirements or exception reporting
requirements because they are exempt from the RCRA hazardous waste
manifest requirements and are not required to comply with the movement
document requirements in § 262.84.  

Annual Reporting  		

Exporters of SLABs must follow the requirements applicable to a primary
exporter detailed in § 262.56 “Annual reports”(a)(1) through (4),
(6), and (b).  Specifically, exporters will have to file with the EPA
Administrator an annual report summarizing the types, quantities,
frequency, and ultimate destination of all SLABs exported during the
previous calendar year.  Reports are due by March 1st of every year. 		

Recordkeeping 	

Under § 262.57, exporters of SLABs must keep the following records: 

A copy of each notification of intent to export for at least three years
from the date the SLAB export shipment was accepted by the initial
transporter; 

A copy of each EPA Acknowledgment of Consent for at least three years
from the date the SLAB export shipment was accepted by the initial
transporter; and

A copy of each annual report for at least three years from the due date
of the report.  

Changes to 40 CFR 271.1

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

DISCUSSION OF COMMENTS RECEIVED IN RESPONSE TO THE PROPOSED RULEMAKING
AND THE AGENCY’S RESPONSES

The Agency received comments from four entities: the Basel Action
Network (BAN), a nongovernmental organization focused on the Basel
Convention and in particular on the issue of illegal trade in hazardous
wastes to developing countries; the Association of Battery Recyclers
(ABR), a national trade association representing the lead recycling
industry; Johnson Controls, Inc. (JCI), a global supplier of batteries
to the automotive aftermarket and original equipment manufacturers; and
Dow Chemical Company (DOW), a global chemical manufacturer.  The
comments were focused on specific issues or provisions in the proposed
rule.  To the extent that comments were not submitted on various aspects
or provisions of the proposal, the Agency is finalizing those portions
of the proposal, as-is, except in one case.  That exception is discussed
in section C below.

OECD Revisions

BAN argued that EPA should subject all wastes on the OECD amber list to
amber control procedures when being exported regardless of whether the
materials are RCRA hazardous wastes.  This comment is outside the scope
of this rulemaking, as EPA did not propose any changes to the
fundamental regulatory framework regarding the applicability of the OECD
provisions in 40 CFR part 262, subpart H (see Section II.A.5 of the
proposed rule at 73 FR 58393).  Moreover, it is important to recognize
that the Amended 2001 OECD Decision and its predecessor have long
recognized and allowed a Member country to determine if a waste on an
OECD list is hazardous based on its “national procedures” (see Annex
I, Section II.4 of the “Decision of the Council C(92)39/FINAL
Concerning the Control of Transfrontier Movements of Wastes Destined for
Recovery” and Chapter II, Section B.4 of the Amended 2001 Decision). 
Discussion on how RCRA implementation of “national procedures”
impacts transboundary movements of wastes subject to the RCRA
exemptions, exclusions and recycling provisions can be found in the
April 12, 1996, preamble to the original OECD rule (61 FR 16290-16316). 
EPA is therefore finalizing the scope of the OECD provisions in subpart
H as proposed.  

BAN also commented that EPA should prohibit all exports of OECD amber
listed wastes to non-OECD countries for any reason.  ABR similarly
commented that EPA should prohibit all exports of SLABs to non-OECD
countries.  EPA cannot grant this request since the statute does not
give EPA the legal authority to implement an outright ban on hazardous
waste exports.  Specifically, RCRA section 3017 prohibits exports of
hazardous waste unless either:  (1) the shipments are covered under and
conform to the terms specified in an agreement between the U.S. and the
receiving country; or (2) the exporter has submitted written
notification to EPA, obtained written consent from the receiving country
via EPA, attached a copy of the written consent to the RCRA hazardous
waste manifest for each shipment, and ensures that the shipments comply
with the terms of the receiving country’s consent.  Moreover, section
3017 directs the State Department, on behalf of EPA, to forward a copy
of the notification to the intended county of import within 30 days of
EPA receiving a complete notification concerning a proposed waste export
that would not be covered under the terms of an existing international
agreement.  Therefore, an outright ban regarding all exports of any
individual hazardous waste (e.g. SLABs) or all hazardous wastes to
non-OECD countries would require changes to the statutory language and
is outside the scope of this regulatory action.  

In practice, EPA has rarely received inquiries for hazardous waste
exports to non-OECD countries.  When approached by potential exporters
who ask about exporting hazardous wastes to non-OECD countries that are,
however, parties to the Basel Convention, it is EPA’s practice to
actively discourage such exports by informing them of the Basel
Convention prohibition on transboundary shipments of hazardous waste
between Basel Parties and a non-Party like the United States in the
absence of a formal agreement per Article 11 of the Basel Convention
(e.g., the U.S.-Canada bilateral agreement, the U.S.-Mexico bilateral
agreement, or the OECD multilateral agreement).  The United States has
no agreement with a non-OECD country for exports of RCRA hazardous
wastes.  A review of hazardous waste export notices between 1995 –
2007 indicates no approved or even proposed exports of RCRA hazardous
waste to a non-OECD country.  In the interest of transparency, however,
EPA intends to post online at   HYPERLINK
"http://www.epa.gov/epawaste/hazard/international/hazard/index.htm" \t
""  http://www.epa.gov/epawaste/hazard/international/hazard/index.htm 
summary information for all future notices we receive concerning a
proposed export of RCRA hazardous waste to a non-OECD country.  The
online information will list the exporter name, exporter address, waste
text description, proposed receiving country, and consent status (e.g.,
notice submitted to foreign country, whether the foreign country
consents or objects).  Moreover, EPA’s cover letters for notices
concerning exports to non-OECD countries will remind the countries, when
appropriate, of the relevant Basel hazardous waste listing and the Basel
Convention prohibition on transboundary shipments of hazardous waste
between Basel Parties and a non-Party like the United States. 

In another comment, BAN asserted that EPA has not yet implemented the
1986 OECD Council Decision-Recommendation C(86)64(final) (“1986 OECD
Decision-Recommendation”), and should do so immediately.  This comment
is outside the scope of this rulemaking, as EPA proposed revisions to
the OECD provisions to implement the Amended 2001 OECD Decision.  

Finally, BAN suggested that the U.S. should simultaneously ratify the
Basel Convention and the Basel Ban Amendment.  However, ratification of
the Basel Convention, with or without the Basel Ban Amendment, would
require Congressional action to provide EPA the legislative authority to
implement either of these, and thus, is outside the scope of this
rulemaking. 

Dow stated that it supported EPA revising the existing regulations to
implement the Amended 2001 OECD Decision, and that the revisions will
clarify and streamline the import and export process among OECD Member
countries. 

SLAB Revisions

Three of the commenters recognized the need to require notification and
consent for SLABs being exported for reclamation in a foreign country,
and all four commenters supported EPA establishing the notice and
consent export requirements.  

As part of ABR’s comment suggesting that EPA ban all exports of SLABs
to non-OECD countries (which is discussed in the previous section), ABR
submitted data that analyzed export shipments of SLABs and other lead
scrap based on the harmonized tariff code classifications between 2006
– 2008.  The data indicated shipments of lead scrap and/or SLABs to
non-OECD countries (e.g., China and India).  ABR asserted that this data
demonstrates that many exporters were mislabeling their SLAB shipments
as non-battery scrap, and that EPA might be underestimating the amount
of SLABs that were exported for reclamation between 2006 - 2008. 
However, after reviewing the analysis conducted by ABR, who generally
supports the proposed rule, we do not believe that ABR’s data would
lead to a significantly different answer, and cause EPA to reconsider
its position.  In particular, ABR’s data indicated total exports of
SLABs and lead scrap were approximately 220,000 metric tons in 2006 and
approximately 250,000 metric tons in 2007, with about 8% of the total
exports in 2006 going to non-OECD countries.  In comparison, EPA’s
data on SLAB exports estimated that 269,171 metric tons were exported in
2006, and that 1.77% went to non-OECD countries.  Because the maximum
annual amount of SLABs exported between 2006 - 2007 based on ABR’s
data is less than the annual amount based on EPA’s data, the Agency
believes it most appropriate that the data used in the economic analysis
for the proposed rule should continue be used, and not revised to
include the ABR data in the economic analysis for the final rule.  As a
general note, if anyone has specific knowledge pertaining to specific
export shipments that they believe are in violation of the RCRA
hazardous waste regulations, we encourage them to submit it using EPA's
website at http://www.epa.gov/compliance/complaints/index.html.    

ABR further commented that adding export requirements to 40 CFR part
266, subpart G that reference the 40 CFR part 262 requirements was
confusing, and instead recommended that EPA simply require that all
SLABs destined for export to be managed as Universal Waste batteries
under 40 CFR part 273.  EPA does not agree that requiring all SLABs that
will be exported in the future be managed under 40 CFR part 273 would be
easier or less confusing.  EPA’s policy has long allowed collectors
and managers of SLABs destined for recycling to choose either Part 273
or Part 266 (see Section IV.B.2.b of the 1995 Final Universal Waste Rule
at 60 FR 25504 and following pages).  We believe that having the same
export requirements for SLAB exports in 40 CFR part 273 and 40 CFR part
266, subpart G is the most straightforward approach to ensuring that
SLAB exports for reclamation are appropriately controlled, and the
references to requirements in 40 CFR part 262 should be no more
confusing than the previously established references to 40 CFR parts 261
and 268.  EPA is therefore finalizing the 40 CFR part 266, subpart G
requirements as proposed.

JCI commented that a three-year time period for notice and consent of
exports (as opposed to a one-year time period) would reduce the burden
on U.S. exporters while still providing sufficient notification to the
importing country of proposed shipments.  While the Amended 2001 OECD
Decision does allow importing countries to issue extended consents that
last for up to three years when the proposed shipment is destined for a
facility that the importing country has “pre-approved” for such
imports, OECD countries are neither required to pre-approve facilities
nor to issue such extended consents.  The international agreements
covering exports from the United States that are in place with Canada,
Mexico, and the OECD all specify a one-year time period as the standard
maximum length of time that a notification and consent can cover. 
Consistent with those agreements and with all other RCRA export
regulatory requirements in 40 CFR parts 261, 262 and 273, EPA is
therefore retaining the one-year time period for SLABs being exported
under 40 CFR part 266, subpart G. 

Dow made a general comment of support for the revisions to the SLAB
regulations. 

Export Exception Report Technical Correction and Import Revisions

BAN and Dow both made a general comment of support for the proposed
technical corrections regarding export exception reports and import
consent documentation submissions, as proposed.  Therefore, EPA is
finalizing the technical corrections as proposed.  The final rule
however, does not include the proposed requirement in 40 CFR part 262,
subpart F that RCRA hazardous waste importers give a copy of the
EPA-provided import consent documentation to the initial transporter
along with the RCRA hazardous waste manifest.

According to longstanding EPA policy, any party who helped arrange for
the importation (e.g., a broker, a transporter, or the waste management
facility), may be considered an importer.  Because EPA’s consents are
currently communicated only to the competent authority of the exporting
country, the proposal stated that EPA would need to provide or otherwise
make available to U.S. importers the documentation confirming the
Agency’s consent.  We asked for comment in the proposed rule on how
best to provide the consent documentation to the RCRA importer, but
received no comments on this issue.  Foreign notices we receive
regarding proposed imports of hazardous waste do not generally identify
the party acting as the importer under RCRA regulations, but the notices
always have to list the foreign generator, the waste to be imported, the
intended management of the waste, and the U.S. TSDF that will dispose of
or recover the imported hazardous waste.   

Since we should be able to reliably identify the TSDF, and the TSDF
should have enough knowledge of their individual customers and contracts
to match up the incoming shipment manifests with the EPA-provided import
consent documentation, we have decided to provide the import consent
documentation directly to the TSDF listed on each consent document and
require each TSDF receiving hazardous waste from a foreign source to
send back a copy of the relevant import consent documentation along with
a signed copy of the RCRA hazardous waste manifest within 30 days of
delivery.  Because receiving facilities would have received the consent
documentation directly under the proposal for those instances when they
were acting as the RCRA importer of record, making this change is a
logical outgrowth of the proposal and does not require a supplemental
notice.   

FUTURE RULEMAKING

Changes to OECD Member country list  

Qualified countries may be invited to accede to the OECD Convention as
new Members.  The OECD Convention defines qualified countries as those
that have demonstrated the basic values shared by all Members: an open
market economy, democratic pluralism, and respect for human rights.  Any
decision to invite a new country to become a Member of the OECD must be
unanimous, although abstentions may be allowed.  Thus, no new Member may
be admitted over the objection of the United States (or any other Member
country). 

In order to accommodate changes in OECD membership as quickly as
possible, EPA will publish in the FEDERAL REGISTER any future amendments
to the list of OECD Member countries set forth in § 262.58(a)(1), as a
final rule without prior notice and opportunity for comment.  EPA
believes that the Agency would be able to make a "good cause" finding
under the Administrative Procedure Act (APA) (5 U.S.C. § 553(b)(3)(B))
to make these future amendments without prior notice and comment.  EPA
believes notice and an opportunity for comment on future amendments to
§ 262.58(a)(1) to reflect the updates to the OECD list of Member
countries would be unnecessary, because the United States, as an OECD
Member country, is legally obligated to implement OECD Decisions with
respect to all OECD Member countries.  

Changes to OECD waste list

The OECD waste list is incorporated by reference and cited in §
262.89(d).  If the OECD amends its waste list in the future by decision
of the OECD Council (with the concurrence of the United States), EPA
will publish a notice of these amendments in the Federal Register as a
final rule without prior notice and an opportunity for comment.  EPA
believes that the Agency would be able to make a "good cause" finding
under the Administrative Procedure Act (APA) (5 U.S.C. § 553(b)(3)(B))
to make these future amendments without prior notice and comment because
the purpose of § 262.89(d) is solely informational – to provide an
up-to-date reference of the OECD waste list.  Public comment on such
updates is unnecessary, as EPA would have no discretion to modify this
list.  

COSTS AND BENEFITS OF THE FINAL RULE

Introduction

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

Analytical Scope

This analysis assesses the final integration of the Amended 2001 OECD
Decision into the existing U.S. regulations governing shipments
(export/import/transit) of hazardous wastes destined for recovery
between the U.S. and other OECD Member countries.  In addition, we
assess the newly final export regulations for SLABs to OECD and non-OECD
countries.  Also incorporated into the analysis is the requirement that
a receiving facility subject to 40 CFR parts 264 or 265 submit to EPA a
copy of the documentation confirming EPA’s consent to the import when
it submits to EPA the RCRA hazardous waste manifest for the import
shipment of hazardous waste.  Finally, this action revises the current
language in §§ 262.55 and 262.87(b) to require exception reports to be
submitted directly to the International Compliance and Assurance
Division in the Office of Enforcement and Compliance Assurance’s
Office of Federal Activities in Washington, D.C., rather than to the EPA
Administrator.  There is no discernable cost impact associated with this
final requirement for exception reports to be submitted directly to the
Director.

	First, we assessed potential cost impacts (positive and negative) of
the final revisions to the OECD rule, including: 

Exemptions for wastes destined for laboratory analyses,

The requirement to provide a certificate of recovery,

Information collection requirements associated with the exchange and
accumulation recovery operations, and

The notification requirements related to the return of wastes.

	Next, we assessed potential cost impacts (positive and negative) of the
final revisions to the SLAB regulations, including:  

Notification requirements for SLAB exporters,

The renotification requirements associated with any changes to the
original SLAB export notification, 

The annual reporting requirements,

Additional reporting requirements (if requested by EPA), and

SLAB exporter recordkeeping requirements.  

	Finally, we analyzed the final requirements that a receiving facility
subject to 40 CFR parts 264 or 265 submit to EPA a copy of the
documentation confirming EPA’s consent to the import when it submits
to EPA the RCRA hazardous waste manifest for the import shipment of
hazardous waste.  	

	We also included an estimate for potentially affected entities to read
the regulation, which is, by default, a necessary requirement for
understanding the regulation.  Cost impacts associated with reading the
regulation are assessed for exporters, importers, and transporters.    

Cost Impacts

	The total incremental cost for the OECD portion of the final rule
during the first year of implementation, including reading the rule, is
estimated to be $14,494.  This is a net impact estimate that includes a
total net incremental cost increase to the regulated community of
$13,656, and a total net cost increase to EPA of $838.  The total
incremental annual net cost for the OECD portion after the first year of
implementation, excluding reading the rule, is estimated to be $9,700.  

The total incremental cost for the SLAB portion of the final rule during
the first year of implementation, including reading the rule, is
estimated at $850,000.  The first year total incremental cost is
expected to be about $780,000 for the affected U.S. industry and about
$71,000 for EPA.  The total incremental annual cost after the first year
of implementation, excluding reading the rule, is estimated to be
$400,000. 

The combined total cost of the final rule (OECD portion, plus SLAB
portion, plus import consent documentation portion) is estimated at
$910,000 for the first year. Approximately 93% of this total is
attributable to the SLAB portion of the rule, followed by the EPA import
consent documentation requirements representing about 5% of the total. 
The OECD portion accounts for less than 2% of the total first year cost
of the rule.  After the first year, the total incremental cost of the
final rulemaking is estimated at $460,000. 

Cost estimates presented in this section are based on our estimates for
the number of potentially affected importers, exporters, and
transporters.  Numerous data sources were used in the derivation of
these estimates, including: RCRAInfo, the Waste International Tracking
System (WITS), industry consultations, the Biennial Report, the
International Trade Commission (ITC), Environment Canada, and SEMARNAT
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 document prepared in support
of this final action.  This document is available in the docket to
today’s rule.  

Benefits

We have prepared a qualitative assessment of the benefits anticipated
from this action.  Overall, this action is expected to result in
improved regulatory efficiency of the affected materials, while ensuring
improved data collection and enhanced enforcement capabilities. 
Specific benefits include the following:

increasing regulatory efficiency by implementing provisions in the
Amended 2001 OECD Decision that were meant to clarify the scope of
control and make the control procedures more precise;  

helping to improve market efficiency by allowing exporters to ship
wastes more quickly and store for shorter periods of time;  

encouraging the environmentally sound recovery of hazardous wastes,
thereby reducing the risks associated with treatment and disposal; and  

providing for the improved ability to acquire information regarding the
quantities of SLABs exported from the U.S. and the destination
facilities to which the SLABs are exported.

STATE AUTHORIZATION

Applicability of Rules in Authorized States

Under section 3006 of RCRA, EPA may authorize qualified States to
administer their own hazardous waste programs in lieu of the federal
program within the State.  Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized States have primary enforcement responsibility.  The
standards and requirements for State authorization are found at 40 CFR
part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984
(HSWA), a State with final RCRA authorization administered its hazardous
waste program entirely in lieu of EPA administering the federal program
in that State.  The federal requirements no longer applied in the
authorized State, and EPA could not issue permits for any facilities in
that State, since only the State was authorized to issue RCRA permits. 
When new, more stringent federal requirements were promulgated, the
State was obligated to enact equivalent authorities within specified
time frames.  However, the new federal requirements did not take effect
in an authorized State until the State adopted the federal requirements
as State law.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was
added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized States at the same time that they
take effect in unauthorized States.  EPA is directed by the statute to
implement these requirements and prohibitions in authorized States,
including the issuance of permits, until the State is granted
authorization to do so.  While States must still adopt more stringent
HSWA related provisions as State law to retain final authorization, EPA
implements the HSWA provisions in authorized States until the States do
so.

Authorized States are required to modify their programs only when EPA
enacts federal requirements that are more stringent 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.

Effect on State Authorization

Because of the Federal government’s special role in matters of foreign
policy, EPA does not authorize States to administer Federal
import/export functions in any section of the RCRA hazardous waste
regulations.  This promotes national coordination, uniformity and the
expeditious transmission of information between the United States and
foreign countries.  Although States do not receive authorization to
administer the Federal government’s functions in part 262, subparts E
or F (i.e., the Federal requirements for exports and imports), 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 part 262, subpart H (i.e., the Federal
requirements that implement the OECD agreement regarding waste shipments
destined for recovery within the OECD), but in this case, States are not
required to adopt those provisions.  However, EPA strongly encourages
States to incorporate all the import and export related requirements
into their regulations for the convenience of the regulated community
and for completeness, particularly where a State has already
incorporated 40 CFR part 262, subparts E, and H, the import 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 adopts these import/export provisions in this final rule,
care should be taken not to replace Federal or international references
with State terms.  Moreover, the provisions of today’s notice take
effect in all States on [insert date 6 months after publication in the
Federal Register]. 

STATUTORY AND EXECUTIVE ORDER REVIEWS

Executive Order 12866: Regulatory Planning and Review

Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a "significant regulatory action.”  
SEQ CHAPTER \h \r 1  This action may raise novel legal or policy issues
[3(f)(4)] arising out of legal mandates, although it is not economically
significant.  SEQ CHAPTER \h \r 1   Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866.  Any changes made in response to OMB’s recommendations have
been documented in the docket for this action.

This final rule is projected to result in a net increase in costs to
certain importers, exporters, and transporters of affected hazardous
wastes.  Increased costs are also projected for the federal government. 
The total net cost of this rule is estimated to be $910,000 during the
first year following rule implementation.  Exporters are projected to
account for approximately 69 percent of this total.  Benefits of this
action include increased regulatory efficiency, reduced risks associated
with the treatment and disposal of hazardous wastes, and improved data
collection.  

The total net cost estimate for this rule is significantly below the
$100 million threshold established under part 3(f)(1) of the Order. 
Thus, this rule is not considered to be an economically significant
action.  However, in an effort to comply with the spirit of the Order,
we have prepared an economic assessment in support of this final rule.
The RCRA docket established for today’s rulemaking contains a copy of
this document.  

Paperwork Reduction Act

The information collection requirements in this rule have been submitted
for approval to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq.  The information
collection requirements are not enforceable until OMB approves them. 
The Information Collection Request (ICR) document prepared by EPA has
been assigned EPA ICR number 2308.01.	

The final rule requires that the affected sources submit the following:

Under the final OECD revisions:  U.S. recovery facilities will have to
submit a certificate of recovery to the foreign exporter, and to the
competent authority of the country of export and EPA, as soon as
possible, but no later than thirty (30) days after the completion of
recovery and no later than one (1) calendar year following receipt of
the waste; U.S. facilities that exchange or accumulate waste shipments
(e.g., R12/R13 facilities) before final recovery at another facility
(e.g., R1-R11 facilities) will have to prepare and provide a certificate
of recovery for the R12/R13 recovery operations, and provide and
maintain a copy of the certificate of recovery for the subsequent R1-R11
recovery operations; U.S. recovery facilities, including R12/R13
facilities, that must re-export or otherwise return the hazardous waste
shipment will have to submit new notification documents and comply with
the associated Amber control procedures; and U.S. exporters will have to
keep records of the additional certifications of recovery and any
R12/R13 certifications they receive from recovery facilities in other
OECD Member countries.

Under the final SLAB revisions:  SLAB exporters will have to comply with
the full subpart H requirements if going to the OECD Member countries
listed in § 262.58(a)(1) (e.g., submitting notices, originating a
movement document for each shipment, keeping records of all
confirmations of receipt and recovery they receive, submitting exception
reports and annual reports, and recordkeeping); and comply with portions
of the subpart E requirements if going elsewhere (e.g., submitting
notices, providing a copy of EPA’s Acknowledgement of Consent for each
shipment, submitting annual reports and recordkeeping).

Under the final import documentation revisions:  U.S. receiving
facilities will have to submit to EPA copies of the documentation
confirming EPA’s consent to the import each time they submit to EPA a
copy of the RCRA hazardous waste manifest for each hazardous waste
import shipment within thirty (30) days of shipment delivery.

All affected sources will have to retain records of this paperwork for a
period of three years, which is consistent with the RCRA hazardous waste
requirements of §§ 262.53, 262.56, 262.57, 262.83, 262.87, 264.71 and
265.71.  The collection of the requested information is mandatory, as it
is needed by EPA as a part of its overall compliance and enforcement
program for the protection of human health and the environment.

The estimated annual public reporting burden for the new paperwork
requirements in the final rule is 4.63 hours/year per respondent under
the final OECD revisions; 20.74 hours/year per respondent under the
final SLAB revisions; and 8.44 hours/year per respondent under the final
import consent documentation.  The annual public recordkeeping burden is
estimated to average 10.20 hours/year per respondent under the final
OECD revisions, and 0.25 hours/year per respondent under the final SLAB
revisions.  The total annual public burden is estimated to be 14,854
hours at a cost of $832,400 during the first year of implementation, and
8,799 hours at a cost of $381,400 after the first year.  The capital and
start-up costs plus total operation and maintenance costs are expected
to be negligible.  Burden is defined at 5 CFR 1320.3(b). 

An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.  The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.  When this ICR is approved by
OMB, the Agency will publish a technical amendment to 40 CFR part 9 in
the Federal Register to display the OMB control number for the approved
information collection requirements contained in this final rule.

Regulatory Flexibility Act

  SEQ CHAPTER \h \r 1 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.

  SEQ CHAPTER \h \r 1 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.

  SEQ CHAPTER \h \r 1 After considering the economic impacts of today's
final rule on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities. 
We have determined that a substantial number of potentially affected
small businesses (importers, exporters, and transporters) will not
experience significant negative economic impacts.  For the purpose of
our impact analyses, small business is defined either by the number of
employees or by the dollar amount of sales.  The level at which a
business is considered small is determined for each North American
Industrial Classification System (NAICS) code by the Small Business
Administration.  No small governmental jurisdiction or small
not-for-profit organizations are expected to be affected by this action.
 

While a significant number of exporters may be small businesses, the
results of our analysis indicate that the cost to individual small
entities in each potentially affected sector (as identified by NAICS
codes) is likely to be insignificant. 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 regulatory flexibility screening analysis prepared in
support of this determination is incorporated into the Cost Assessment,
which is available in the docket established for this rule.  

Unfunded Mandates Reform Act of 1995

 This action contains no Federal mandates under the provisions of Title
II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for State, local, or tribal governments or the private sector.
  UMRA does not apply to rules that are necessary for the national
security or the ratification or implementation of international treaty
obligations (e.g., the Amended 2001 OECD Decision, the U.S.-Canada
bilateral waste agreement).  Therefore, this action is not subject to
the requirements of sections 202 or 205 of the UMRA.  Finally, this
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that might significantly
or uniquely affect small governments.  As explained previously, EPA does
not authorize States to administer Federal import/export functions in
any section of the RCRA hazardous waste regulations because of the
Federal government’s special role in matters of foreign policy. 

Executive Order 13132:  Federalism

This action does not have federalism implications.  It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132.  Specifically, this final rule does
not have Federalism implications because the State and local governments
do not administer the export and import requirements under RCRA.  Thus,
Executive Order 13132 does not apply to this action.

Executive Order 13175:  Consultation and Coordination with Indian Tribal
Governments

This final rule does not have tribal implications, as specified in
Executive Order 13175.  No Tribal governments are known to own or
operate businesses that may be affected by this rule. Thus, Executive
Order 13175 does not apply to this final rule.  

Executive Order 13045:  Protection of Children from Environmental Health
Risks and Safety Risks

This action is not subject to EO 13045 (62 FR 19885, April 23, 1997)
because it is not economically significant as defined in Executive Order
12866, and because the Agency does not believe the environmental health
or safety risks addressed by this action present a disproportionate risk
to children residing in the United States.  This rule is intended to
improve regulatory efficiency, enhance waste tracking procedures, and
increase accountability among all parties associated with international
shipments, and does not directly affect the level of protection provided
to human health or the environment in the United States.  

Executive Order 13211:  Actions Concerning Regulations that
Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 28355 (May
22, 2001)) because it is not a significant regulatory action under
Executive Order 12866.  This rule will not seriously disrupt energy
supply, distribution patterns, prices, imports or exports.  In fact,
this rule is designed to improve regulatory efficiency and improve
information collection, in part by implementing revisions and
clarifications to the existing regulations.

National Technology Transfer Advancement Act

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (“NTTAA”),
Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies.  The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.

This final rulemaking does not involve technical standards.  Therefore,
EPA did not consider the use of any voluntary consensus standards. 

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

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice.  Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.  

EPA has determined that this final rule will not have disproportionately
high and/or adverse human health or environmental effects on minority or
low-income populations because it does not directly affect the level of
protection provided to human health or the environment in the United
States.  This rule is intended to improve regulatory efficiency, enhance
waste tracking procedures, and increase accountability among all parties
associated with international shipments.

Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States. EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of the
rule in the Federal Register. A Major rule cannot take effect until 60
days after it is published in the Federal Register. This action is not a
“major rule” as defined by 5 U.S.C. 804(2). This rule will be
effective [insert date 6 months after publication in the Federal
Register].

List of Subjects

40 CFR Part 262

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

40 CFR Part 263

Environmental protection, Hazardous materials transportation, Hazardous
waste, Imports

40 CFR Part 264

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

40 CFR Part 265

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

40 CFR Part 266

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

40 CFR Part 271

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

Dated:  

Lisa P. Jackson,

Administrator.

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

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

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

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

2.  Section 262.10(d) is amended by revising paragraph (d) to read as
follows:

§ 262.10  Purpose, scope, and applicability.

* * * * *

(d) Any person who exports or imports wastes that are considered
hazardous under U.S. national procedures to or from the countries listed
in §262.58(a)(1) for recovery must comply with subpart H of this part. 
A waste is considered hazardous under U.S. national procedures if the
waste meets the Federal definition of hazardous waste in 40 CFR 261.3
and is subject to either the Federal RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal waste management standards of 40
CFR part 273, State requirements analogous to 40 CFR part 273, the
export requirements in the spent lead-acid battery management standards
of 40 CFR part 266, subpart G, or State requirements analogous to the
export requirements in 40 CFR part 266, subpart G.

* * * * *

3.  262.55 is amended by revising the introductory text to read as
follows:

§ 262.55  Exception reports.

In lieu of the requirements of § 262.42, a primary exporter must file
an exception report with the Office of Enforcement and Compliance
Assurance, Office of Federal Activities, International Compliance
Assurance Division (2254A), Environmental Protection Agency, 1200
Pennsylvania Avenue, N.W., Washington, DC 20460, if any of the following
occurs:

* * * * *

4.  Section 262.58 is revised to read as follows:

  SEQ CHAPTER \h \r 1 § 262.58  International agreements.

(a) Any person who exports or imports wastes that are considered
hazardous under U.S. national procedures to or from designated Member
countries of the Organization for Economic Cooperation and Development
(OECD) as defined in paragraph (a)(1) of this section for purposes of
recovery is subject to subpart H of this part.  The requirements of
subparts E and F of this part do not apply to such exports and imports. 
A waste is considered hazardous under U.S. national procedures if the
waste meets the Federal definition of hazardous waste in 40 CFR 261.3
and is subject to either the Federal RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal waste management standards of 40
CFR part 273, State requirements analogous to 40 CFR part 273, the
export requirements in the spent lead-acid battery management standards
of 40 CFR part 266, subpart G, or State requirements analogous to the
export requirements in 40 CFR part 266, subpart G.

 (1) For the purposes of subpart H, the designated OECD Member countries
consist of Australia, Austria, Belgium, the Czech Republic, Denmark,
Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy,
Japan, Luxembourg, the Netherlands, New Zealand, Norway, Poland,
Portugal, the Republic of Korea, the Slovak Republic, Spain, Sweden,
Switzerland, Turkey, the United Kingdom, and the United States.  

(2) For the purposes of subpart H of this part, Canada and Mexico are
considered OECD Member countries only for the purpose of transit.

(b) Any person who exports hazardous waste to or imports hazardous waste
from: a designated OECD Member country for purposes other than recovery
(e.g., incineration, disposal), Mexico (for any purpose), or Canada (for
any purpose) remains subject to the requirements of subparts E and F of
this part, and is not subject to the requirements of subpart H of this
part.

5.  Subpart H is revised to read as follows:

Subpart H—Transboundary Movements of Hazardous Waste for Recovery
within the OECD

Sec.

Applicability.

Definitions.

General conditions.

Notification and consent.

Movement document.

Contracts.

Provisions relating to recognized traders.

Reporting and recordkeeping.

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

OECD waste lists.

Subpart H—Transboundary Movements of Hazardous Waste for Recovery
within the OECD

§ 262.80  Applicability.

(a) The requirements of this subpart apply to imports and exports of
wastes that are considered hazardous under U.S. national procedures and
are destined for recovery operations in the countries listed in §
262.58(a)(1). A waste is considered hazardous under U.S. national
procedures if the waste:

(1) Meets the Federal definition of hazardous waste in 40 CFR 261.3; and

(2) Is subject to either the Federal RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal waste management standards of 40
CFR part 273, State requirements analogous to 40 CFR part 273, the
export requirements in the spent lead-acid battery management standards
of 40 CFR part 266, subpart G, or State requirements analogous to the
export requirements in 40 CFR part 266, subpart G.

(b) Any person (exporter, importer, or recovery facility operator) who
mixes two or more wastes (including hazardous and non-hazardous wastes)
or otherwise subjects two or more wastes (including hazardous and
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.

 

§ 262.81  Definitions.

The following definitions apply to this subpart.

Competent authority means the regulatory authority or authorities of
concerned countries having jurisdiction over transboundary movements of
wastes destined for recovery operations. 

Countries concerned means the OECD Member countries of export or import
and any OECD Member countries of transit.

Country of export means any designated OECD Member country listed in §
262.58(a)(1) from which a transboundary movement of hazardous wastes is
planned to be initiated or is initiated.

Country of import means any designated OECD Member country listed in §
262.58(a)(1) to which a transboundary movement of hazardous wastes is
planned or takes place for the purpose of submitting the wastes to
recovery operations therein.

Country of transit means any designated OECD Member country listed in §
262.58(a)(1) and (a)(2) other than the country of export or country of
import across which a transboundary movement of hazardous wastes is
planned or takes place.

Exporter means the person under the jurisdiction of the country of
export who has, or will have at the time the planned transboundary
movement commences, possession or other forms of legal control of the
wastes and who proposes transboundary movement of the hazardous wastes
for the ultimate purpose of submitting them to recovery operations. When
the United States (U.S.) is the country of export, exporter is
interpreted to mean a person domiciled in the United States.  

Importer means the person to whom possession or other form of legal
control of the waste is assigned at the time the waste is received in
the country of import.

OECD area means all land or marine areas under the national jurisdiction
of any OECD Member country listed in § 262.58. When the regulations
refer to shipments to or from an OECD Member country, this means OECD
area.

OECD means the Organization for Economic Cooperation and Development.

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;
C(2005)141 and C(2008)156.”

Recognized trader means a person who, with appropriate authorization of
countries concerned, acts in the role of principal to purchase and
subsequently sell wastes; this person has legal control of such wastes
from time of purchase to time of sale; such a person may act to arrange
and facilitate transboundary movements of wastes destined for recovery
operations.

Recovery facility means a facility which, under applicable domestic law,
is operating or is authorized to operate in the country of import to
receive wastes and to perform recovery operations on them.

Recovery operations means activities leading to resource recovery,
recycling, reclamation, direct re-use or alternative uses, which
include: 

R1	Use as a fuel (other than in direct incineration) or other means to
generate energy

R2	Solvent reclamation/regeneration

R3	Recycling/reclamation of organic substances which are not used as
solvents

R4	Recycling/reclamation of metals and metal compounds

R5   Recycling/reclamation of other inorganic materials

R6	Regeneration of acids or bases

R7	Recovery of components used for pollution abatement

R8	Recovery of components used from catalysts

R9	Used oil re-refining or other reuses of previously used oil

R10	Land treatment resulting in benefit to agriculture or ecological
improvement

R11	Uses of residual materials obtained from any of the operations
numbered R1-R10

R12	Exchange of wastes for submission to any of the operations numbered
R1-R11

R13	Accumulation of material intended for any operation numbered R1-R12	


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

 

§  262.82  General conditions.

(a) Scope. The level of control for exports and imports of waste is
indicated by assignment of the waste to either a list of wastes subject
to the Green control procedures or a list of wastes subject to the Amber
control procedures and by the national procedures of the United States,
as defined in § 262.80(a). The two lists correspond to Appendices 3
and 4, respectively, of the OECD Decision, as defined in § 262.81, and
have been incorporated by reference in § 262.89(d).  

(1)	Listed wastes subject to the Green control procedures. 

(i)	Green wastes that are not considered hazardous under U.S. national
procedures as defined in § 262.80(a) are subject to existing controls
normally applied to commercial transactions.

(ii)	Green wastes that are considered hazardous under U.S. national
procedures as defined in § 262.80(a) are subject to the Amber control
procedures set forth in this subpart.	

(2)	Listed wastes subject to the Amber control procedures.

(i)	Amber wastes that are considered hazardous under U.S. national
procedures as defined in § 262.80(a) are subject to the Amber control
procedures set forth in this subpart.

(ii)	Amber wastes that are considered hazardous under U.S. national
procedures as defined in § 262.80(a), are subject to the Amber control
procedures in the United States, even if they are imported to or
exported from a designated OECD Member country listed in
§ 262.58(a)(1) that does not consider the waste to be hazardous.  In
such an event, the responsibilities of the Amber control procedures
shift as provided:

(A)	For U.S. exports, the United States shall issue an acknowledgement
of receipt and assume other responsibilities of the competent authority
of the country of import.

(B)	For U.S. imports, the U.S. recovery facility/importer and the United
States shall assume the obligations associated with the Amber control
procedures that normally apply to the exporter and country of export,
respectively.

(iii)	Amber wastes that are not considered hazardous under U.S. national
procedures as defined in § 262.80(a), but are considered hazardous by
an OECD Member country are subject to the Amber control procedures in
the OECD Member country that considers the waste hazardous.  All
responsibilities of the U.S. importer/exporter shift to the
importer/exporter of the OECD Member country that considers the waste
hazardous unless the parties make other arrangements through contracts.

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

(3)	Procedures for mixtures of wastes.

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

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

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

NOTE TO PARAGRAPH (a)(3)(ii):  The regulated community should note that
some OECD Member countries may require, by domestic law, that a mixture
of a Green waste and more than a de minimis amount of an Amber waste or
a mixture of two or more Amber wastes be subject to the Amber control
procedures.

(4)	Wastes not yet assigned to an OECD waste list are eligible for
transboundary movements, as follows:

(i)	If such wastes are considered hazardous under U.S. national
procedures as defined in § 262.80(a), such wastes are subject to the
Amber control procedures. 

(ii)	If such wastes are not considered hazardous under U.S. national
procedures as defined in § 262.80(a), such wastes are subject to the
Green control procedures. 	

(b) General conditions applicable to transboundary movements of
hazardous waste: 

(1)  The waste must be destined for recovery operations at a facility
that, under applicable domestic law, is operating or is authorized to
operate in the importing country; 

(2)  The transboundary movement must be in compliance with applicable
international transport agreements; and

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

(3)  Any transit of waste through a non-OECD Member country must be
conducted in compliance with all applicable international and national
laws and regulations.

(c) Provisions relating to re-export for recovery to a third country:

(1) 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 §
262.58(a)(1) may occur only after an exporter in the United States
provides notification to and obtains consent from the competent
authorities in the third country, the original country of export, and
any transit countries. The notification must comply with the notice and
consent procedures in § 262.83 for all countries concerned and the
original country of export. The competent authorities of the original
country of export, as well as the competent authorities of all other
countries concerned have thirty (30) days to object to the proposed
movement.

(i) The thirty (30) day period begins once the competent authorities of
both the initial country of export and new country of import issue
Acknowledgements of Receipt of the notification.

(ii) The transboundary movement may commence if no objection has been
lodged after the thirty (30) day period has passed or immediately after
written consent is received from all relevant OECD importing and transit
countries.

(2) In the case of re-export of Amber wastes to a country other than
those listed in § 262.58(a)(1), notification to and consent of the
competent authorities of the original OECD Member country of export and
any OECD Member countries of transit is required as specified in
paragraph (c)(1) of this section, in addition to compliance with all
international agreements and arrangements to which the first importing
OECD Member country is a party and all applicable regulatory
requirements for exports from the first country of import.

(d) Duty to return or re-export wastes subject to the Amber control
procedures.  When a transboundary movement of wastes subject to the
Amber control procedures cannot be completed in accordance with the
terms of the contract or the consent(s) and alternative arrangements
cannot be made to recover the waste in an environmentally sound manner
in the country of import, the waste must be returned to the country of
export or 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 § 262.83(b)(1)(i)
of the need to return the shipment.  EPA will then inform the competent
authorities of the countries of export and transit, citing the reason(s)
for returning the waste.  The U.S. importer must complete the return
within ninety (90) days from the time EPA informs the country of export
of the need to return the waste, unless informed in writing by EPA of
another timeframe agreed to by the concerned Member countries.  If the
return shipment will cross any transit country, the return shipment may
only occur after EPA provides notification to and obtains consent from
the competent authority of the country of transit, and provides a copy
of that consent to the U.S. importer.

(2) Return from the country of import to the United States: The U.S.
exporter must provide for the return of the hazardous waste shipment
within ninety (90) days from the time the country of import informs EPA
of the need to return the waste or such other period of time as the
concerned Member countries agree.  The U.S. exporter must submit an
exception report to EPA in accordance with § 262.87(b).

(e) Duty to return wastes subject to the Amber control procedures from a
country of transit.  When a transboundary movement of wastes subject to
the Amber control procedures does not comply with the requirements of
the notification and movement documents or otherwise constitutes illegal
shipment, and if alternative arrangements cannot be made to recover
these wastes in an environmentally sound manner, the waste must be
returned to the country of export.  The following provisions apply as
appropriate:

(1) Return from the United States (as country of transit) to the country
of export: The U.S. transporter must inform EPA at the specified address
in § 262.83(b)(1)(i) of the need to return the shipment.  EPA will
then inform the competent authority of the country of export, citing the
reason(s) for returning the waste.  The U.S. transporter must complete
the return within ninety (90) days from the time EPA informs the country
of export of the need to return the waste, unless informed in writing by
EPA of another timeframe agreed to by the concerned Member countries.

(2) Return from the country of transit to the United States (as country
of export): The U.S. exporter must provide for the return of the
hazardous waste shipment within ninety (90) days from the time the
competent authority of the country of transit informs EPA of the need to
return the waste or such other period of time as the concerned Member
countries agree.  The U.S. exporter must submit an exception report to
EPA in accordance with § 262.87(b).

(f) Requirements for wastes destined for and received by R12 and R13
facilities.  The transboundary movement of wastes destined for R12 and
R13 operations must comply with all Amber control procedures for
notification and consent as set forth in § 262.83 and for the movement
document as set forth in § 262.84.  Additional responsibilities of
R12/R13 facilities include:

(  SEQ CHAPTER \h \r 1 1) Indicating in the notification document the
foreseen recovery facility or facilities where the subsequent R1-R11
recovery operation takes place or may take place.

(2) Within three (3) days of the receipt of the wastes by the R12/R13
recovery facility or facilities, the facility(ies) shall return a signed
copy of the movement document to the exporter and to the competent
authorities of the countries of export and import.  The facility(ies)
shall retain the original of the movement document for three (3) years.

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 (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., N.W. Washington, D.C. 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.

§  262.83  Notification and consent.

(a) Applicability.  Consent must be obtained from the competent
authorities of the relevant OECD countries of import and transit prior
to exporting hazardous waste destined for recovery operations subject to
this subpart. Hazardous wastes subject to the Amber control procedures
are subject to the requirements of paragraph (b) of this section; and
wastes not identified on any list are subject to the requirements of
paragraph (c) of this section.

(b) Amber wastes.  Exports of hazardous wastes from the United States as
described in § 262.80(a) that are subject to the Amber control
procedures are prohibited unless the notification and consent
requirements of paragraph (b)(1) or paragraph (b)(2) of this section are
met.

(1) Transactions requiring specific consent:

(i) Notification.  At least forty-five (45) days prior to commencement
of each transboundary movement, the exporter must provide written
notification in English of the proposed transboundary movement to the
Office of Enforcement and Compliance Assurance, Office of Federal
Activities, International Compliance Assurance Division (2254A),
Environmental Protection Agency, 1200 Pennsylvania Avenue., N.W.
Washington, D.C.  20460, with the words "Attention: OECD Export
Notification" prominently displayed on the envelope. This notification
must include all of the information identified in paragraph (d) of this
section. In cases where wastes having similar physical and chemical
characteristics, the same United Nations classification, the same RCRA
waste codes, and are to be sent periodically to the same recovery
facility by the same exporter, the exporter may submit one general
notification of intent to export these wastes in multiple shipments
during a period of up to one (1) year.  Even when a general notification
is used for multiple shipments, each shipment still must be accompanied
by its own movement document pursuant to § 262.84.

(ii) Tacit consent.  If no objection has been lodged by any 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, N.W., Washington, D.C. 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 § 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, as defined in § 262.81, but
which are considered hazardous under U.S. national procedures as defined
in § 262.80(a), are subject to the notification and consent
requirements established for the Amber control procedures in accordance
with paragraph (b) of this section.  Wastes destined for recovery
operations, that have not been assigned to Appendices 3 or 4 of the OECD
Decision, as defined in § 262.81, and are not considered hazardous
under U.S. national procedures as defined by § 262.80(a) are subject to
the Green control procedures.     SEQ CHAPTER \h \r 1   

(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 email address;
whether the importer will engage in waste exchange recovery operation
R12 or waste accumulation recovery operation R13 prior to delivering the
waste to the final recovery facility and identification of recovery
operations to be employed at the final recovery facility;

(5) Intended transporter(s) and/or their agent(s); address, telephone,
fax, and e-mail address;

(6) Country of export and relevant competent authority, and point of
departure;

(7) Countries of transit and relevant competent authorities and points
of entry and departure;

(8) Country of import and relevant competent authority, and point of
entry;

(9) Statement of whether the notification is a single notification or a
general notification. If general, include period of validity requested;

(10) Date(s) foreseen for commencement of transboundary movement(s);

(11) Means of transport envisaged; 

(12) Designation of waste type(s) from the appropriate list (Part I or
II of Appendix 3 or 4) of the OECD Decision, as defined in § 262.81,
description(s) of each waste type, estimated total quantity of each,
RCRA waste code, and the United Nations number for each waste type;

(13) Specification of the recovery operation(s) as defined in
§ 262.81.

(14) Certification/Declaration signed by the exporter that states:

I certify that the above information is complete and correct to the best
of my knowledge. I also certify that 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.  The certificate of recovery shall include a signed, written and
dated statement that affirms that the waste materials were recovered in
the manner agreed to by the parties to the contract required under §
262.85.

 

§  262.84  Movement document.

(a) All U.S. parties subject to the contract provisions of § 262.85
must ensure that a movement document meeting the conditions of paragraph
(b) of this section accompanies each transboundary movement of wastes
subject to the Amber control procedures from the initiation of the
shipment until it reaches the final recovery facility, including cases
in which the waste is stored and/or sorted by the importer prior to
shipment to the final recovery facility, except as provided in
paragraphs (a)(1) and (2) of this section.

(1) For shipments of hazardous waste within the United States solely by
water (bulk shipments only), the generator must forward the movement
document with the manifest to the last water (bulk shipment) transporter
to handle the waste in the United States if exported by water, (in
accordance with the manifest routing procedures at § 262.23(c)).

(2) For rail shipments of hazardous waste within the United States which
originate at the site of generation, the generator must forward the
movement document with the manifest (in accordance with the routing
procedures for the manifest in § 262.23(d)) to the next non-rail
transporter, if any, or the last rail transporter to handle the waste in
the United States if exported by rail. 

(b) The movement document must include all information required under
§ 262.83 (for notification), as well as the following paragraphs
(b)(1) through (b)(7) of this section:  

(1)  Date movement commenced;

(2)  Name (if not exporter), address, telephone 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-approved for that
type of waste within the OECD area; such an authorization has not been
revoked, and no objection has been received from any of the countries
concerned.

 

(Delete sentences that are not applicable)

 

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

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

§  262.85  Contracts.

(a) Transboundary movements of hazardous wastes subject to the Amber
control procedures are prohibited unless they occur under the terms of a
valid written contract, chain of contracts, or equivalent arrangements
(when the movement occurs between parties controlled by the same
corporate or legal entity). Such contracts or equivalent arrangements
must be executed by the exporter and the owner or operator of the
recovery facility, and must specify responsibilities for each. Contracts
or equivalent arrangements are valid for the purposes of this section
only if persons assuming obligations under the contracts or equivalent
arrangements have appropriate legal status to conduct the operations
specified in the contract or equivalent arrangements.

(b) Contracts or equivalent arrangements must specify the name and EPA
ID number, where available, of paragraph (b)(1) through (b)(4) of this
section: 

(1) The generator of each type of waste;

(2) Each person who will have physical custody of the wastes;

(3) Each person who will have legal control of the wastes; and

(4) The recovery facility.

(c) Contracts or equivalent arrangements must specify which party to the
contract will assume responsibility for alternate management of the
wastes if their disposition cannot be carried out as described in the
notification of intent to export. In such cases, contracts must specify
that:

(1) The person having actual possession or physical control over the
wastes will immediately inform the exporter and the competent
authorities of countries of export and import and, if the wastes are
located in a country of transit, the competent authorities of that
country; and

(2) The person specified in the contract will assume responsibility for
the adequate management of the wastes in compliance with applicable laws
and regulations including, if necessary, arranging the return of wastes
and, as the case may be, shall provide the notification for re-export.

(d) Contracts must specify that the importer will provide the
notification required in § 262.82(c) prior to the 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.

  SEQ CHAPTER \h \r 1 NOTE TO PARAGRAPH (e): Financial guarantees so
required are intended to provide for alternate recycling, disposal or
other means of sound management of the wastes in cases where
arrangements for the shipment and the recovery operations cannot be
carried out as foreseen.  The United States does not require such
financial guarantees at this time; however, some OECD Member countries
do.  It is the responsibility of the exporter to ascertain and comply
with such requirements; in some cases, transporters or importers may
refuse to enter into the necessary contracts absent specific references
or certifications to financial guarantees.

(f) Contracts or equivalent arrangements must contain provisions
requiring each contracting party to comply with all applicable
requirements of this subpart.

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

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

 

§  262.86  Provisions relating to recognized traders.

(a) A recognized trader who takes physical custody of a waste and
conducts recovery operations (including storage prior to recovery) is
acting as the owner or operator of a recovery facility and must be so
authorized in accordance with all applicable Federal laws.  

(b) A recognized trader acting as an exporter or importer for
transboundary shipments of waste must comply with all the requirements
of this subpart associated with being an exporter or importer.  

 

§  262.87  Reporting and recordkeeping.

(a) Annual reports. For all waste movements subject to this subpart,
persons (e.g., exporters, recognized traders) who meet the definition of
primary exporter in § 262.51 or who initiate the movement documentation
under § 262.84 shall file an annual report with the Office of
Enforcement and Compliance Assurance, Office of Federal Activities,
International Compliance Assurance Division (2254A), Environmental
Protection Agency, 1200 Pennsylvania Avenue, N.W., Washington, DC 20460,
no later than March 1 of each year summarizing the types, quantities,
frequency, and ultimate destination of all such hazardous waste exported
during the previous calendar year. (If the primary exporter or the
person who initiates the movement document under § 262.84 is required
to file an annual report for waste exports that are not covered under
this subpart, he may include all export information in one report
provided the following information on exports of waste destined for
recovery within the designated OECD Member countries is contained in a
separate section.) Such reports shall include all of the following
paragraphs (a)(1) through (a)(6) of this section specified as follows:  

(1) The EPA identification number, name, and mailing and site address of
the exporter filing the report;

(2) The calendar year covered by the report;

(3) The name and site address of each final recovery facility;

(4) By final recovery facility, for each hazardous waste exported, a
description of the hazardous waste, the EPA hazardous waste number (from
40 CFR 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, as defined in § 262.81), DOT
hazard class, the name and U.S. EPA identification number (where
applicable) for each transporter used, the total amount of hazardous
waste shipped pursuant to this subpart, and number of shipments pursuant
to each notification;

(5) In even numbered years, for each hazardous waste exported, except
for hazardous waste produced by exporters of greater than 100kg but less
than 1000kg in a calendar month, and except for hazardous waste for
which information was already provided pursuant to § 262.41:

(i) A description of the efforts undertaken during the year to reduce
the volume and toxicity of the waste generated; and

(ii) A description of the changes in volume and toxicity of the waste
actually achieved during the year in comparison to previous years to the
extent such information is available for years prior to 1984; and

(6) A certification signed by the person acting as primary exporter or
initiator of the movement document under § 262.84 that states:

 I certify under penalty of law that I have personally examined and am
familiar with the information submitted in this and all attached
documents, and that based on my inquiry of those individuals immediately
responsible for obtaining the information, I believe that the submitted
information is true, accurate, and complete. I am aware that there are
significant penalties for submitting false information including the
possibility of fine and imprisonment.

(b) Exception reports. Any person who meets the definition of primary
exporter in § 262.51 or who initiates the movement document under §
262.84 must file an exception report in lieu of the requirements of §
262.42 (if applicable) with the Office of Enforcement and Compliance
Assurance, Office of Federal Activities, International Compliance
Assurance Division (2254A), Environmental Protection Agency, 1200
Pennsylvania Avenue, N.W., Washington, DC 20460, if any of the following
occurs:

(1) He has not received a copy of the RCRA hazardous waste manifest (if
applicable) signed by the transporter identifying the point of departure
of the waste from the United States, within forty-five (45) days from
the date it was accepted by the initial transporter;

(2) Within ninety (90) days from the date the waste was accepted by the
initial transporter, the exporter has not received written confirmation
from the recovery facility that the hazardous waste was received;

(3) The waste is returned to the United States.

(c) Recordkeeping. 

(1) Persons who meet the definition of primary exporter in § 262.51 or
who initiate the movement document under § 262.84 shall keep the
following records paragraphs (c)(1)(i) through (c)(1)(iv) of this
section:  

(i) A copy of each notification of intent to export and all written
consents obtained from the competent authorities of countries concerned
for a period of at least three (3) years from the date the hazardous
waste was accepted by the initial transporter;

(ii) A copy of each annual report for a period of at least three (3)
years from the due date of the report; 

(iii) A copy of any exception reports and a copy of each confirmation of
delivery (i.e., movement document) sent by the recovery facility to the
exporter for at least three (3) years from the date the hazardous waste
was accepted by the initial transporter or received by the recovery
facility, whichever is applicable; and

(iv) A copy of each 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.

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

§ 262.89  OECD waste lists.

(a) General. For the purposes of this subpart, a waste is considered
hazardous under U.S. national procedures, and hence subject to this
subpart, if the waste:

(1) Meets the Federal definition of hazardous waste in 40 CFR 261.3; and

(2) Is subject to either the Federal RCRA manifesting requirements at 40
CFR part 262, subpart B, the universal waste management standards of 40
CFR part 273, State requirements analogous to 40 CFR part 273, the
export requirements in the spent lead-acid battery management standards
of 40 CFR part 266, subpart G, or State requirements analogous to the
export requirements in 40 CFR part 266, subpart G.

(b) If a waste is hazardous under paragraph (a) of this section, it is
subject to the Amber control procedures, regardless of whether it
appears in Appendix 4 of the OECD Decision, as defined in § 262.81.

(c) The appropriate control procedures for hazardous wastes and
hazardous waste mixtures are addressed in § 262.82. 

(d) The OECD waste lists, 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, as defined in § 262.81.  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 # 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 André 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 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE

5. The authority citation for part 263 continues to read as follows:

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

6.  Section 263.10(d) is amended by revising paragraph (d) to read as
follows: 

§  263.10 Scope.

*  *  *  *  *  

(d) A transporter of hazardous waste subject to the Federal manifesting
requirements of 40 CFR part 262, or subject to the waste management
standards of 40 CFR part 273, or subject to State requirements analogous
to 40 CFR part 273, that is being imported from or exported to any of
the countries listed in 40 CFR 262.58(a)(1) for purposes of recovery is
subject to this Subpart and to all other relevant requirements of
subpart H of 40 CFR part 262, including, but not limited to, 40 CFR
262.84 for tracking documents.

*  *  *  *  *  

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

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

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

6.  Section 264.12(a)(2) is amended by revising paragraph (a)(2) to read
as follows: 

§  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., N.W. Washington, D.C.  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. 

*  *  *  *  *  

7.  Section 264.71(a)(3) is amended by revising paragraph (a)(3) to read
as follows:

§  264.71 Use of manifest system.

(a) * * *

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

*  *  *  *  *  

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

8.  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.

9.  Section 265.12(a)(2) is amended by revising paragraph (a)(2) to read
as follows:

§  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., N.W. Washington, D.C.  20460; and to the competent
authorities of all other countries concerned within three (3) working
days of receipt of the shipment. The original of the signed movement
document must be maintained at the facility for at least three (3)
years.  In addition, such owner or operator shall, as soon as possible,
but no later than thirty (30) days after the completion of recovery and
no later than one (1) calendar year following the receipt of the
hazardous waste, send a certificate of recovery to the foreign exporter
and to the competent authority of the country of export and to EPA’s
Office of Enforcement and Compliance Assurance at the above address by
mail, e-mail without a digital signature followed by mail, or fax
followed by mail.		

*  *  *  *  *

10.  Section 265.71(a)(3) is amended by revising paragraph (a)(3) to
read as follows:

§  265.71  Use of manifest system.

(a) * * *

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

*  *  *  *  *  

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

11. 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.  

12.  In §266.80(a) the table is revised to read as follows:	

§ 266.80 Applicability and requirements.

(a) * * * 

If your batteries * * * 	And if you  *  * *	Then you *  *  *	And you * 
*  *

(1) Will be reclaimed through regeneration (such as by electrolyte
replacement)



are exempt from 40 CFR parts 262 (except for §262.11), 263, 264, 265,
266, 268, 270, 124 of this chapter, and the notification requirements at
section 3010 of RCRA	are subject to 40 CFR parts 261 and §262.11 of
this chapter.

(2) Will be reclaimed other than through regeneration 	generate,
collect, and/or transport these batteries	are exempt from 40 CFR parts
262 (except for § 262.11), 263, 264, 265, 266, 270, 124 of this
chapter, and the notification requirements at section 3010 of RCRA	are
subject to 40 CFR parts 261 and § 262.11, and applicable provisions
under part 268.

(3) Will be reclaimed other than through regeneration	store these
batteries but you aren’t the reclaimer	are exempt from 40 CFR parts
262 (except for § 262.11), 263, 264, 265, 266, 270, 124 of this
chapter, and the notification requirements at section 3010 of RCRA	are
subject to 40 CFR parts 261, §262.11, and applicable provisions under
part 268.

(4) Will be reclaimed other than through regeneration	store these
batteries before you reclaim them	must comply with 40 CFR 266.80 (b) and
as appropriate other regulatory provisions described in 266.80(b)	are
subject to 40 CFR parts 261, §262.11, and applicable provisions under
part 268.

(5) Will be reclaimed other than through regeneration	don’t store
these batteries before you reclaim them	are exempt from 40 CFR parts 262
(except for §262.11), 263, 264, 265,  266, 270, 124 of this chapter,
and the notification requirements at section 3010 of RCRA	are subject to
40 CFR parts 261, §262.11, and applicable provisions under part 268.

(6) Will be reclaimed through regeneration or any other means	export
these batteries for reclamation in a foreign country	are exempt from 40
CFR parts 263, 264, 265, 266, 268, 270, 124 of this chapter, and the
notification requirements at section 3010 of RCRA.  You are also exempt
from part 262, except for 262.11, and except for the applicable
requirements in either: (1) 40 CFR part 262 subpart H; or (2) 262.53
“Notification of Intent to Export, 262.56 (a) (1) through (4) (6) and
(b) “Annual Reports,” and 262.57 “Recordkeeping”	are subject to
40 CFR part 261 and § 262.11, and either must comply with 40 CFR part
262, subpart H (if shipping to one of the OECD countries specified in 40
CFR 262.58(a)(1)), or must:

(a) Comply with the requirements applicable to a primary exporter in 40
CFR 262.53, 262.56(a) (1) through (4), (6), and (b) and 262.57; and

(b) Export these batteries only upon consent of the receiving country
and in conformance with the EPA Acknowledgement of Consent as defined in
subpart E of part 262 of this chapter; and

(c) Provide a copy of the EPA Acknowledgment of Consent for the shipment
to the transporter transporting the shipment for export.

(7) Will be reclaimed through regeneration or any other means	Transport
these batteries in the U.S. to export them for reclamation in a foreign
country	are exempt from 40 CFR parts 263, 264, 265, 266, 268, 270, 124
of this chapter, and the notification requirements at section 3010 of
RCRA	must comply with applicable requirements in 40 CFR part 262,
subpart H (if shipping to one of the OECD countries specified in 40 CFR
262.58(a)(1)), or must comply with the following:

(a) you may not accept a shipment if you know the shipment does not
conform to the EPA Acknowledgment of Consent;  

(b) you must ensure that a copy of the EPA Acknowledgment of Consent
accompanies the shipment; and

(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

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

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

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

§ 271.1  Purpose and scope.

* * * * *

(j) * * *

Table 1.--Regulations Implementing the Hazardous and Solid Waste
Amendments of 1984

Promulgation date	Title of regulation	Federal Register Reference
Effective Date

* * * * * * *

[Insert date of publication in the Federal Register

(FR)].

	Exports of hazardous waste 	[Insert FR page numbers]

	[Insert date 6 months from date of publication in the Federal
Register].





* * * * *

 Table 2.— Self-Implementing Provisions of the Hazardous and Solid
Waste Amendments of 1984

Effective date	Self-implementing provision	RCRA citation	Federal
Register Reference

* * * * * * *

[Insert date 6 months from date of publication in the Federal Register

(FR)].

	Exports of hazardous waste	3017(a)

	[Insert Federal Register reference for publication of final rule].





* * * * *	

 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 172 Member countries, also known as Parties, and aims to protect
human health and the environment against the adverse effects resulting
from the generation, management, transboundary movements and disposal of
hazardous and other wastes.  A copy of the convention text has been
placed in the docket established for this rulemaking.  More information
on the Basel Convention may be found at   HYPERLINK
"http://www.basel.int"  www.basel.int .

 Copies of these amendments have been placed in the docket established
for this rulemaking.

 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.

 Section 262.81 in the final revisions to the regulatory text in 40 CFR
part 262, subpart H defines “OECD Decision” as “Decision of the
Council C(2001)107/FINAL, Concerning the Control of Transboundary
Movements of Wastes Destined for Recovery Operations, as Amended by
C(2004)20; C(2005)141 and C(2008)156” for the purposes of the subpart.

 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.

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

 As noted previously, this is equivalent to the “importer” in the
final revisions to 40 CFR part 262, subpart H.

“ Decision-Recommendation of the Council on Exports of Hazardous
Wastes from the OECD area,” issued June 5, 1986.  This document is
available online at   HYPERLINK
"http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/C(86)64" 
http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/C(86)64 , and
a copy has been placed in the docket established for this rulemaking. 

 See June 25, 1985, memo from John H. Skinner, Director of the Office of
Solid Waste to Harry Seraydarian, Director, Toxics and Waste Management
Division, EPA Region IX, “Determining Who Assumes Generator
Responsibilities for Importations of Hazardous Waste.”

 Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT).

 Cost Assessment for the Final Rule on Exports and Imports of Hazardous
Waste Destined for Recovery Among OECD Countries, Exports of Spent
Lead-Acid Batteries from the U.S, and Import Consent Documentation. 

 This $100 million threshold applies to both costs, and cost savings.

 Cost Assessment for the Final Rule on Exports and Imports of Hazardous
Waste Destined for Recovery Among OECD Countries, Exports of Spent
Lead-Acid Batteries from the U.S., and Import Consent Documentation
(Cost Assessment).

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