530294012
Friday
April 12, 1996
Part II


Environmental

Protection  Agency

40 CFR Part 9, et al.
Imports and Exports of Hazardous Waste:
Implementation of OECD Council
Decision; Final Rule
            5H-X2,

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

 40 CFR Parts 9,260, 261,262,263,264,
 265,266 and 273
 [FRL-5447-1]
 RIN 2050-AD87

 Imports and Exports of Hazardous
 Waste: Implementation of OECD
 Council Decision C(92)39 Concerning
 the Control of Transf rentier
 Movements of Wastes Destined for
 Recovery Operations

 AGENCY: Environmental Protection
 Agency (EPA).
 ACTION: Final rule.

 SUMMARY: The rule identifies the wastes,
 under the Resource Conservation and
 Recovery Act (RCRA), that are subject to
 a graduated system (green, amber, red)
 of procedural and substantive controls
 when they move across national borders
 within the OECD for recovery. (EPA
 may, in the future, identify wastes
 under other statutes that are subject to
 the OECD Decision). It seeks to make the
 transactions fully transparent and to
 prevent or minimize the possibility of
 such wastes being abandoned or
 otherwise illegally handled. These
 requirements will apply only to U.S.
 exporters and importers of RCRA
 hazardous wastes destined for recovery
 in OECD countries (except for Canada
 and Mexico; waste shipments to and
 from these countries will continue to
 move under the current bilateral
 agreements and regulations). Those U.S.
 exporters and importers transacting
 hazardous waste movements outside the
 scope of today's rule will remain subject
 to EPA's current waste export and
 import regulations at 40 CFR part 262,
 subparts E and F.
  This rule does not increase the scope
 of wastes subject to U.S. export and
 import controls; it does, however,
 modify the procedural controls
 governing their export and import when
 shipped for recovery among OECD
 countries. Today's rule will assist in
harmonizing the new OECD
requirements, reducing confusion to
U.S. importers and exporters and
increasing the efficiency of the process.
EFFECTIVE DATE: This rule is effective on
July 11,1996. The OECD Green List of
Wastes (revised May  1994), Amber List
of Wastes and Red List of Wastes (both
revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix
5, respectively, to  the OECD Council
Decision C(92)39/FINAL (Concerning
the Control of Transfrontier Movements
of Wastes Destined
 Operations) were approved by the
 Director of the Federal Register to be
 incorporated by reference in today's rule
 on July 11,1996.
 ADDRESSES: Supporting materials are
 available for viewing in the RCRA
 Information Center (RIG), located at
 1235 Jefferson-Davis Highway, First
 Floor, Arlington, Virginia 22203. The
 Docket Identification Number is F-94-
 IEHF-FFFFF. The RIC is open from 9
 a.m. to 4 p.m., Monday through Friday,
 excluding federal holidays. To review
 docket materials, the public must make
 an appointment by calling (703) 603-
 9230. The public may copy a maximum
 of 100 pages from any regulatory docket
 at no charge. Additional copies cost
 $.15/page. Some supporting materials
 are available electronically. See the
 "Supplementary Information" section
 for information on accessing them.
 FOR FURTHER INFORMATION CONTACT:
 For  general information, contact the
 RCRA Hotline at 1-800-424-9346 or
 TDD 1-800-553-7672 (hearing
 impaired). In the Washington
 metropolitan area, call 703-412-9810 or
 TDD 703-412-3323.
   For more detailed information on
 specific aspects of this rulemaking,
 contact Ms. Julia Gourley, Office of
 Solid Waste (5304), U.S. Environmental
 Protection Agency, 401M Street, SW.,
 Washington, DC 20460, (202) 260-7944.

 SUPPLEMENTARY INFORMATION:
 Internet Access
   Selected supporting materials are
 available on the Internet. Follow these
 instructions to access the information
 electronically:
 Gopher: gopher.epa.gov
 WWW: http://www.epa.gov
 Dial-up: (919) 558-0335.
  This report can be accessed off the
 main EPA Gopher menu, in the
 directory: EPA Offices and Regions/
 Office of Solid Waste and Emergency.
 Response (OSWER)/Office of Solid
 Waste (RCRA)/Hazardous Waste-RCRA-
 Subtitle C/Exports/Imports.
 FTP: ftp.epa.gov
 Login: anonymous
Password: Your Internet address
  Files are located in /pub/gopher/
OSWRCRA.

Preamble Outline
I. Authority
 A. Good Cause Exception to Notice and
   Comment Requirement
 B. Effective Date
n. Background
 A. History of the OECD and Development
   of Council Decision C(92)39/FINAL
 B. Relationship to the Basel Convention
 C. Summary of Decision
   1. Waste Lists
   a. Green, Amber, and Red Lists
   b. Unlisted Wastes
   c. National Procedures
   2. Control Procedures
   a. Green-List Wastes
   b. Amber-List Wastes
   c. Red-List Wastes
   d. When Wastes are not Considered
    Hazardous by All Concerned Countries
 m. Specific OECD Requirements and
    Relationship to RCRA
   A. Differences Between the OECD Decision
    and Today's Rule
   B. Definitions
   1. Competent Authorities
   2. Concerned Countries
   3. Consignee
   4. Country of Transit
   5. Exporting Country
   6. Generator
   7. Importing Country
   8. International Waste Identification Code
   9. Notifier
   10. OECD Area
   11. Person
   12. Recognized Trader
   13. Recovery Facility
   14. Recovery Operations
   15. Transfrontier Movement
   16. Wastes
   C Notification and Consent for Exports
   1. Provisions Applicable to Amber-List and
    Red-List Wastes
   a. Notice and Consent for Specific
    Shipments
   b. General Notification
   c. Pre-Approval for Recovery Facilities
    Managing Amber-List Wastes
   d. Return or Re-Export of Shipments
   2. Unlisted Wastes
   D. Tracking Documents
   1. Routing of Tracking Document
   E. Contracts
   F. Importers
   1. Definition
   2. Requirements
   a. Notification of Receipt
   b. Pre-Approval of U.S. Recovery Facilities
   G. Reporting and Recordkeeping
IV. OECD Waste Lists and Relationship to
    RCRA
  A. Relationship of OECD Wastes and RCRA
    Hazardous Wastes
  B. Status of Specific RCRA Hazardous
    Wastes
  1. Definitions of Wastes Subject to National
    Procedures
  2. Exemptions from the Definition of Solid
    Waste Definition
  3. Applicability to Hazardous Waste
    Subject to Special Recycling Standards
  a. Scrap Metal
  b. Lead-Acid Batteries
  4. Wastes Excluded Under 40 CFR 261.4
  5. Hazardous Wastes Exempted Under 40
    CFR 261.5
  6. Applicability to Universal Wastes
  7. Non-RCRA Wastes and Other Regulatory
    Regimes
  C. OECD  Waste Lists Incorporated by
    Reference
V. Applicability in Authorized States
VI. Relationship to U.S. Bilateral Agreements
VII. Relationship to Other Programs
VIII. Future Rulemaking
IX. Regulatory Impact Analysis

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     A. Executive Order 12866
     B. Regulatory Flexibility Act
     C. Paperwork Reduction Act
     1. Display of OMB Control Numbers
     2. Burden Statement
     Note: The Agency notes that previous, pre-
   publication versions of this rule may
   inadvertently have been made available (e.g.
   through the Internet and other on-line
   means). This rule, published today in the
   Federal Register, supersedes any and all of
   these pre-publication versions. This
   published rule constitutes the Agency's final
   rule and reflects certain minor technical
   corrections that were not contained in pre-
   publication versions.
     On March 30,1992, the Organization
   for Economic Cooperation and
   Development (OECD) adopted Council
   Decision C(92)39 Concerning the
   Control of Transfrontier Movements of
   Wastes Destined for Recovery
   Operations (Decision). The United
   States, a member of OECD, supported
   the Decision and has agreed to follow its
   terms, which, with respect to RCRA
   wastes, EPA is implementing in today's
   Final Rule.

   I. Authority
    Authority to promulgate today's rule
  is found in sections 2002(a) and
  3017(a)(2) and (f) of the Solid Waste
  Disposal Act, as amended by the
  Resource Conservation and Recovery
  Act (RCRA), and as amended by the
  Hazardous and Solid Waste
  Amendments, 42 U.S.C. 6901 et seq.
   Today's final rule is necessary to
  ensure implementation of the
  Organization for Economic Cooperation
  and Development (OECD) Council
  Decision C(92)39/FINAL Concerning the
  Control of Transfrontier Movements of
  Wastes Destined for Recovery
  Operations (the Decision). The Decision
  was supported by the United States and
  imposes legally binding commitments
  on the United States pursuant to
 Articles 5(a) and 6(2) of the OECD
 Convention, 12 U.S.T. 1728. The
 Decision and today's rule implementing
 the Decision also will ensure that the
 import and export of RCRA hazardous
 waste destined for recovery, between
 the United States and those OECD
 countries that are Parties to the Basel
 Convention on the Control of
 Transboundary Movements of
 Hazardous Wastes and Their Disposal,
 may proceed even though the United
 States is not yet a Party to the Basel
 Convention.1
      The Basel Convention entered into
    force on May 5,1992, for the twenty
    countries that ratified it by that date.
    Since then, a number of other countries
    have also ratified. The Convention
    prohibits trade in Basel-covered wastes
    between parties and non-parties, unless
    a bilateral, multilateral, or regional
    agreement or arrangement exists in
    accordance with Article 11 of the
    Convention.  The Decision, which
   entered into force before May 5,1992,
   satisfies the requirements of Article 11
   of the Basel Convention because it is a
   pre-existing multilateral agreement
   compatible with the environmentally
   sound management of wastes as
   required by the Convention. Therefore,
   today's promulgation of Subpart H as
   part of the RCRA hazardous waste
   export and import regulations, which is
   necessary to implement the Decision,
   will make it possible for persons within
   the United States to continue exporting
   and importing Basel-covered RCRA
   hazardous waste for recovery within the
   OECD, even if other OECD countries are
  Parties to the Basel Convention.
  Additionally,  today's rule  will facilitate
  harmonization of U.S. regulations with
  European Union regulations on waste
  exports and imports, which went into
  effect on May  6,1994. Future legislative
  and regulatory actions will be needed to
  more fully implement this Decision.
  1 OECD member countries consist of Australia,
Austria, Belgium, Canada, Denmark, Finland
France, Germany, Greece, Iceland, Ireland, Italy
Japan, Luxembourg, the Netherlands, New Zealand
Norway, Portugal, Spain, Sweden, Switzerland,  '
Turkey, the United Kingdom, and the United States
Mexico joined the OECD in June 1994
  A. Good Cause Exception to Notice and
  Comment Requirement
    The Decision sets out very specific
  requirements for shipments of
  hazardous waste destined for recovery.
  EPA is implementing language that
  essentially mirrors the Decision in order
  to establish certain new requirements
  that will be enforceable against
  importers and exporters [EPA is making
  only minimal, nonsubstantive changes
 to the OECD language in order to
 conform today's rule to existing RCRA
 rules (e.g., substituting the RCRA-
 defined term "transporter" for the term
 "carrier" used in the Decision)]. EPA is
 promulgating these rules without first
 providing notice and opportunity to
 comment. Under the Administrative
 Procedure Act (APA), 5 U.S.C.
 553(b)(B), an agency may forgo notice
 and comment in promulgating a rule
 when, according to the APA, the agency
 for good cause finds (and incorporates
 the finding and a brief statement of
 reasons for that finding into the rules
 issued) that notice and public comment
 procedures are impracticable,
 unnecessary, or contrary to the public
 interest. For the.reasons set forth below,
EPA believes it has good cause to find
that notice and comment would be
unnecessary and contrary to the public
    interest and therefore is not required bv
    the APA.                          y
      EPA finds that notice and comment
    procedures are unnecessary in
    connection with the promulgation of
    today's rule because EPA is precluded
    from modifying the rule in any
    meaningful way in response to public
    comment. The requirement to
    implement this Decision virtually as
    written derives from the following.
     First, the United States has entered
   into a legally binding commitment with
   the other OECD countries to implement
   the Decision virtually as written.
   Accordingly, today's rulemaking is
   analogous to a codification of statutory
   requirements, in which an agency
   assumes the ministerial,
   nondiscretionary functions of
   translating requirements to regulatory
   form [see United Technologies Corp v
   EPA, 821 F.2d 714, 720 (D.C. Cir. 1987)
   (finding that EPA had good cause to
   omit notice and comment for a rule
   codifying portions  of the 1984
   amendments to RCRA); Metzenbaum v.
   Federal Energy Regulatory Commission,
   675 F.2d 1282,1291 (D.C. Cir. 1982)
   (finding orders implementing statutory
  waiver were nondiscretionary acts
  required by such waiver and that notice
  and comment procedures were
  unnecessary and possibly contrary to
  the public interest "given the expense
  that would have been involved in the
  futile gesture")]. Although the Decision
  is neither a statute nor a court order and
  imposes no requirements directly on
  U.S. persons, the U.S. Department of
  State has determined that the Decision
  is an international agreement creating
  binding commitments on the United
  States under the terms of the OECD
  Convention. By consenting to the
  Decision, the United States Government
  has agreed to promulgate regulations
  necessary to ensure that the United
  States can uphold the agreement.
 Furthermore, EPA has determined that
 no statutory change to the Resource
 Conservation and Recovery Act (RCRA)
 is needed because RCRA currently
 authorizes EPA to promulgate rules
 governing imports and exports of
 hazardous waste, and contains adequate
 authority to promulgate the

   Second, today's rule cannot deviate
 materially from the Decision because, as
 a practical matter, other OECD countries
 may refuse to accept U.S. shipments of
 waste for recycling that do not conform
 to the procedures agreed to in the
 Decision. Such countries also may
 refuse to allow wastes to be shipped to
 the U.S. if the U.S. cannot carry out its
 duties as specified in the Decision.
Deviation from the reguratory scheme

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16292      Federal Register / Vol. 61, No. 72  /  Friday,  April 12,  1996 / Rules and Regulations
articulated in the Decision in response
to comments might preclude the U.S.
from implementing the Decision and
therefore from satisfying its
international commitments.
  Third, EPA must implement the
Decision virtually as written because
modifications could defeat the goal of
achieving an internationally consistent
regime to control the import and export
of hazardous and other wastes destined
for recovery. EPA believes that parallel
implementation of the Decision within
the U.S. and other OECD countries is
crucial to ensuring that the import and
export of wastes destined for recovery
proceed in accordance with an
internationally integrated regime.
Without the uniform implementation of
the controls it prescribes, an
internationally consistent regime is not
possible, and many of the
environmental benefits of the Decision
(and the Basel Convention) will be lost.
  EPA also believes that it has good
cause to find that prior notice and an
opportunity to comment would not
serve the public interest. As noted
above, the movement of RCRA
hazardous wastes destined for recovery
could be halted between the United
States and the OECD countries,
particularly those that are parties to the
Basel Convention, if the United States
modified the regulations in response to
comment such that the regulations
failed to conform to the OECD Decision.
EPA believes that the continued
movement and recovery of such wastes
is environmentally and economically
beneficial. The United States, therefore,
encourages the environmentally sound
recovery of wastes, particularly
hazardous wastes, as an alternative to
disposal [see, e.g., 42 U.S.C. 6902(a)(6),
6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA
believes that the import and export of
wastes among OECD countries for
purposes of recovery serves the public
interest by making waste management
facilities in the OECD available to waste
generators in the U.S. and other OECD
countries, thereby providing additional
assurance that wastes amenable to
recovery operations will be managed in
an environmentally sound manner. The
United States' failure to implement the
Decision in the form approved by the
OECD countries could thwart this
objective.
  In further support of its finding that
the public interest is not well served by
the allowance for comment on this
rulemaking, EPA also notes that the
regulatory burdens of this rule flow
from the Decision itself and are not
materially affected by the promulgation
of today's rule. Because a number of
OECD countries to date have fully
implemented the Decision, many U.S.
importers and exporters of wastes
destined for recovery who seek to trade
with OECD countries in effect already
are subject to the requirements of the
Decision through those countries'
controls on their imports and exports.
For example, these countries may
already require, as a condition of
authorizing the shipment, that U.S.
participants adhere to the Decision's
contracting or notice requirements, even
though those participants are not yet
required to do so under U.S. law. Thus,
it is the implementation of the Decision
by other OECD countries, rather than
the implementation of today's rule, that
has the most profound effect on the
regulated community. Because today's
rule merely formalizes the existing
regulatory framework to which the
regulated community is already subject,
its promulgation without notice and
comment does not detrimentally affect
those persons [see National Helium
Corp. v. Federal Energy Administration,
569 F.2d 1137,1146 (Temp. Emer. Ct.
App. 1978)]. Indeed, as noted above,
today's rule ameliorates the effects of
foreign laws  on U.S. persons by making
it possible for RCRA hazardous waste
destined for recovery to move between
the U.S. and other OECD countries
without being stopped or rejected for
failure to conform to the Decision.
Finally, where EPA believes the OECD
Decision is open to interpretation and
affords EPA some flexibility in
interpreting and implementing its
requirements, EPA  remains free to
initiate a separate rulemaking process
on those issues, following all
appropriate notice and comment
procedures.
  For the reasons set forth above, EPA
believes that it has  good cause to find
that implementation of notice and
comment procedures for today's rule
would be unnecessary and contrary to
the public interest, and therefore is not
required under 5 U.S.C. 553(b)(B) to
initiate a comment  period.

B. Effective Date
   Section 3010(b) of RCRA requires EPA
to set the effective date for rules
promulgated under Subtitle C of RCRA
at six months after  the date of
promulgation unless (1) the regulated
community does not need six months to
come into compliance; (2) the regulation
responds to  an emergency; or (3) there
is other good cause. EPA believes that
the regulated community will not need
more than 90 days  to become familiar
with today's rule and to begin
implementing its requirements because
the new requirements refer primarily to
the notices and consents that are already
required under existing law as a
condition to the import or export of the
wastes destined for recovery. Moreover,
EPA believes that the regulated
community is capable of, and indeed
has an interest in, immediate
compliance with the new rule in order
to continue to be able to import and
export wastes subject to the Decision,
since most OECD countries have already
revised their regulations to incorporate
the Decision's requirements. EPA also
believes it has good cause to make this
rule effective 90 days from publication,
for the reasons set forth above in
connection with the APA's public
notice requirement. Therefore, EPA
concludes that the six month effective
date provision of RCRA 3010(b) does
not apply.

II. Background

A. History of the OECD and
Development of the Council Decision
C(92)39/Final
  The OECD was chartered to assist
member countries in achieving high
economic growth, employment, and a
rising standard of living while ensuring
that human health and the environment
are protected. Presently there are 25
member countries of the OECD:
Australia, Austria, Belgium, Canada,
Denmark, Finland, France, Germany,
Greece, Iceland, Ireland, Italy, Japan,
Luxembourg, Mexico, Netherlands, New
Zealand, Norway, Portugal, Spain,
Sweden, Switzerland, Turkey, the
United Kingdom, and the United States.
  The OECD was the first international
organization to establish a working
group to analyze issues relating to
transfrontier movements of hazardous
waste. Li 1974, the OECD Environment
Policy Committee, which guides all
OECD work involving environmental
matters, created the Waste Management
Policy Group (WMPG), which includes
government officials responsible for
controlling waste management in their
respective member countries.
  In 1981, the WMPG began to prepare
guidelines to control transfrontier
movements of hazardous waste.
Thereafter, because some members
(including the United States) enacted
legislation controlling transfrontier
shipments of hazardous waste, the
OECD's primary mission was to work
toward harmonization of controls
among the member countries.
   Much of the OECD's early work,
including lists identifying wastes to be
covered by an international agreement
controlling transfrontier waste
movements, was adopted by the United
Nations Environment Programme
 (UNEP) and incorporated into the Basel

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             Federal Register / Vol. 61, No. 72  / Friday, April  12,  1996 / Rules and Regulations      16293
 Convention on the Control of
 Transboundary Movements of
 Hazardous Wastes and Their Disposal
 (Basel Convention). More detailed
 discussion of the Basel Convention can
 be found in the Federal Register at 57
 FR 20602 (May 13,1992).
   Following completion of the Basel
 Convention and a 1991 OECD Council
 Decision on wastes, an Advisory Panel
 to the OECD's Waste Management
 Policy Group was chartered in January
 1991. Its purpose was to study whether
 a streamlined set of procedural notice
 and consent requirements could be
 agreed upon by member countries for
 transfrontier movements of waste
 destined for recovery. The panel
 developed a graduated control system
 and lists of covered wastes (green,
 amber, and red). The proposed system
 was presented to the WMPG as a draft
 Decision in November 1991, for
 submission to the OECD Environment
 Policy Committee. In December 1991,
 the Environment Policy Committee
 returned the draft Decision to the
 WMPG for further refinement. A month
 later, the WMPG revised the Decision,
 and through the Environment Policy
 Committee, submitted the Decision
 document to the OECD Council. On
 March 30,1992, the Council adopted
 the Decision, with only Japan
 abstaining. Japan later adopted and
 began implementing the Decision in
 December 1993.

 B. Relationship to the Basel Convention
   The Basel Convention is an
 international agreement controlling the
 transfrontier movement of hazardous
 and  other wastes. While requiring
 movements between Basel Parties to be
 managed in an environmentally sound
 manner, it prohibits movements
 involving Parties and non-Parties absent
 a separate bilateral, multilateral, or
 regional agreement or arrangement that
 is compatible with the aims and
 purposes of the Convention (for pre-
 existing agreements) or that contains
 provisions that do not derogate from the
 environmentally sound management
 required by the Basel Convention (for
 newly negotiated agreements). Such
 agreements are recognized under Article
 11(2) of the Convention. As a pre-
 existing arrangement under Article
 11(2), the Decision averts potential trade
 disruptions between members of the
 OECD that are Parties to the Basel
 Convention and members that are not.
  The U.S. will not become a Party to
the Basel Convention until it ratines the
Convention. In order to ratify the
Convention, the U.S. must have
additional statutory authority to
implement its terms. Once the U.S. has
 the necessary authority, the export and
 import regulations at 40 CFR 262
 Subparts E and F will be modified.
   Exports and imports among OECD
 countries of waste destined for recovery
 will be governed by the procedures set
 forth in today's regulations and by any
 future regulatory changes made to
 implement the Decision (including
 future changes to the Decision).2
 Exports and imports of RCRA hazardous
 wastes within the OECD for purposes
 other than recycling (e.g., disposal or
 treatment) will continue to be subject to
 the current RCRA export and import
 regulations.

 C. Summary of Decision
   OECD Council Decision C(92)39/
 FINAL establishes a graduated control
 system for the transfrontier movement
 of wastes destined for recovery
 operations. The Decision reflects
 recognition by the OECD of the
 importance of transboundary movement
 of wastes for recovery, because highly
 specialized recovery facilities are not
 found in every country and because
 OECD generally supports a waste
 management hierarchy in which
 recovery is more desirable than final
 disposal. The goal of the negotiations
 was to ensure that recovery of materials
 from wastes could continue
 internationally, provided the shipments
 were managed in an environmentally
 sound and efficient manner.
  The OECD has developed draft
 guidance on environmentally sound
 recovery practices for particular wastes.
 In addition, some of the member
 countries are actively engaged in the
 development of technical guidelines for
 environmentally sound management of
 hazardous and other wastes under the
 Basel Convention. To date, seven
 technical guidelines on management of
 specific waste streams and waste
 management practices have been
 adopted by the Basel Parties, along with
 a framework document outlining the
 elements to be included in the technical
 guidelines. They are: hazardous waste
 from the production and use of organic
 solvents; waste oils from petroleum
 origins and sources; wastes comprising
 or containing PCBs, PCTs, and PBBs;
wastes collected from households;
specially engineered landfills,
incineration on land, and used oil re-
refining or other re-uses of previously
used oil. The purpose of the technical
guidelines is to assist developing
countries in becoming self-sufficient in
  2 For example, today's regulations implementing
the OECD Decision will be modified once EPA
obtains legislative authority to control the
transfrontier movements of household wastes,
which appear on the OECD amber list.
 waste management as they industrialize
 and develop their economies. The Basel
 Parties have agreed to develop other
 technical guidelines as resources
 permit.
   The Decision establishes a range of
 different procedural controls depending
 on whether a waste appears on the
 Decision's green, amber, or red list (or
 no list, in which case hazardous wastes
 are regulated as red-list wastes).  Green-
 list wastes require no controls beyond
 those typically imposed in normal
 international commercial shipments.
 Amber-list wastes, which are considered
 hazardous, may be shipped for recovery
 under one of three arrangements: (1)
 movement pursuant to a shipment-by-
 shipment written notification by the
 export notifier or competent authority of
 his government to the competent
 authorities of OECD concerned
 countries (i.e., exporting, importing and
 transit), and written or tacit consent
 from the relevant OECD importing and
 transit countries;  (2) movement
 pursuant to  a general notification and
 written or tacit consent from the
 competent authorities of the relevant
 OECD importing and transit countries;
 or (3) movement to facilities pre-
 approved by the importing country to
 accept that waste  type which requires
 only prior written notification to the
 competent authorities of the concerned
 countries. In all cases, amber-list wastes
 must be accompanied by a tracking
 document and the waste must be
 shipped under a legally binding
 contract, chain of contracts, or
 equivalent arrangements if the notifier
 and receiving facility are part of the
 same legal or corporate entity. Red-list
 wastes are handled in the same manner
 as amber-list wastes except that prior
 written consent from the importing and
 transit countries is always required and
 no facilities are pre-approved to accept
 these wastes.
  In addition to assigning specific
 wastes to the green, amber or red lists,
 the Decision allows for each member
 country to employ its "national
 procedures" to determine whether a
 waste is considered hazardous under its
 laws and regulations, and therefore
 whether it is subject to amber or red
 controls. Thus, as discussed in more
 detail below, a waste that is not
 hazardous as determined by national
 procedures will not be subject to  amber
 or red controls regardless of which list
 it appears on, a green-list waste that is
 considered hazardous will be subject to
 amber or red controls, while an unlisted
 waste considered hazardous as
 determined by national procedures will
be subject to red controls (see § II. C. 2.
 d.)

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16294     Federal Register / Vol. 61, No. 72 / Friday,  April 12. 1996  /  Rules and Regulations
1. Waste Lists
  a. Green, Amber, and Red Lists. The
waste lists (green, amber, and red) are
intended to be comprehensive, i.e., any
waste subject to transfrontier movement
should be identified on one of three
lists. Wastes identified on the green list
are presumed to be non-hazardous
while amber-list and red-list wastes are
presumed to be hazardous. However,
transfrontier movements of red-list
wastes for recovery are presumed by the
OECD to pose a greater potential risk
than amber-list wastes because of their
hazardous properties or because there is
less experience in recovery of red
wastes as compared to amber wastes.
The Decision allows a country to use its
national procedures to determine which
wastes are hazardous.
  b. Unlisted Wastes. Although the
green, amber, and red lists of wastes are
intended to be comprehensive, it is
possible that there are wastes moving
internationally for recovery that are not
on any list. The WMPG developed the
Review Mechanism in accordance with
the General Provisions section of the
Decision, to evaluate and assign
unlisted waste to an appropriate list.
The Review Mechanism is administered
by an OECD group known as the
Working Party. Under the Review
Mechanism, the Working Party forwards
recommendations to the OECD Council
through the WMPG, the Pollution
Prevention and Control Group, and the
Environment Policy Committee. The
Working Party also identifies other
implementation issues that should be
addressed under the Review
Mechanism.
  In implementing the Review
Mechanism, the Working Party uses the
criteria in Annex 2 of the OECD
Decision to evaluate wastes and to
formulate recommendations regarding
their placement on a specific list. The
criteria are divided into two major
categories: waste properties (e.g., degree
of hazard, physical state)  and
management practices (e.g., handling
prior to recovery). The terms of
reference for the Review Mechanism
require that changes to the waste lists be
proposed or supported by at least one
member country and circulated to all
members at least six weeks prior to
convening the Review Mechanism's
Working Party.
  Persons who export hazardous wastes
from the U.S. to OECD countries for
recovery are  encouraged to identify
hazardous wastes which are not
currently identified on any list and to
provide EPA with waste-specific
information responsive to the questions
in Annex 2 of the Decision. This
information will be evaluated by the
Agency prior to submission to the
Review Mechanism for consideration.
Hence, it is critical that complete
information be provided to EPA at least
two months (and preferably earlier)
prior to scheduled meetings of the
Working Party to conduct the Review
Mechanism process. Until such time as
an unlisted waste is placed on a
particular list pursuant to the Review
Mechanism, the Decision provides that
unlisted wastes considered hazardous
under national procedures move under
red controls and that unlisted waste
considered non-hazardous under
national procedures move under green
controls.
  c. National Procedures. The OECD
amber and red waste lists are quite
broad, consisting of many generic
categories which may include both
hazardous and non-hazardous wastes.
The Decision therefore allows a country
to determine if a waste on an OECD list
is hazardous based on its "national
procedures" or "national tests." During
the negotiations of the Decision, the
U.S. interpreted national procedures to
include both hazardous waste testing
and regulatory determinations. For
purposes of today's rule, EPA has
determined that a waste is hazardous
under U.S. "national procedures" if the
waste meets the following requirements
under RCRA: (a) meets the Federal
definition of hazardous waste in 40 CFR
261.3; and (b) is subject to either the
Federal hazardous waste manifesting
requirements in 40 CFR 262, or to the
universal waste management standards
of 40 CFR 273, or to State requirements
analogous to Part 273. (As stated earlier,
EPA may, in the future, identify wastes
under other statutes that are subject to
the OECD Decision). [Note: For
purposes of brevity and convenience,
only the manifest criterion (and not the
universal waste criteria) will be
mentioned specifically throughout the
preamble as to whether EPA considers
a waste to be a hazardous waste and
therefore subject to today's rule.
However, we emphasize that universal
wastes (which are considered hazardous
wastes but are not subject to manifest
requirements) are also subject to today's
rule. Further discussion of universal
wastes can be found in section IV. B. 6.].
This interpretation is consistent with
the Agency's 1986 export notification
policy [see 51 FR 28664 (Aug. 8,1986)],
in which the Agency concluded that
wastes that are not subject to
manifesting domestically do not pose a
risk warranting export notification.
Further discussion of EPA's
interpretation of national procedures as
they apply to recyclable waste can be
found in section IV. B. 1.

2. Control Procedures
  The specific control procedures
required for the export or import of
wastes for recovery within the OECD
depend on whether the relevant
exporting, importing and transit
countries consider a waste to be subject
to green, amber or red controls under
their national procedures. Significantly,
a particular waste's placement on one of
the OECD lists is not determinative of
the level of control applicable to the
transfrontier shipment of such a waste
for recovery. The lists represent an
attempt to reach a consensus among the
member countries on the level of control
applicable to certain types of wastes;
they do not supersede a country's
authority to apply different levels of
control for a particular waste pursuant
to its national procedures. Accordingly,
although a waste's placement on the
OECD green, amber and red waste lists
may indicate the applicable level of
control in most cases, exporters and
importers must determine which level
of control applies to a particular
shipment of waste under the national
procedures of each affected country.
  All waste shipments that are subject
to today's final rule must be sent to
facilities that are allowed under the
applicable laws of the importing
country to receive and perform recovery
operations on the wastes. In addition,
the Decision requires that all
transfrontier movements of waste within
the OECD comply with the provisions of
applicable international transport
agreements.3 Any transit of wastes
through a non-member country is
subject to all applicable international
and national laws and regulations.
  a. Green-List Wastes. Wastes on the
green list that are exported from the U.S.
to OECD countries or imported to the
U.S. from such countries for recovery
are subject to all existing controls
normally applied to commercial
transactions, but are not subject to any
additional controls under the Decision.
Such controls may include bills of
lading, customs declarations,
international insurance, or other
controls.
  However, if a green-list waste is
"sufficiently contaminated" (as
described below) to meet the criteria for
inclusion on the amber or red lists, then
  3 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). See
Appendix 1 of Council Decision C(92)39/Final in
Appendix 3 of today's preamble.

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                Federal Register / Vol.  61,  No. 72  /  Friday,  April 12, 1996 / Rules and Regulations       16295
   shipment must be managed in
   accordance with the applicable amber-
   list or red-list controls. For the purpose
   of implementing the Decision, EPA is
   interpreting "sufficiently contaminated"
   to mean a green-list waste that is
   considered hazardous under U.S.
   national procedures (i.e., waste or waste
   mixture meets the Federal definition of
   hazardous waste in 40 CFR 261.3 and is
   subject to Federal manifest
   requirements). Such wastes will be
   subject to amber-list controls, unless the
   reason for the contamination is mixture
   with a red-list waste or with a
   hazardous waste that is not found on
   any list. In those cases, the waste will
  be subject to red-list controls.
    As will be discussed further, the
  Decision acknowledges that certain
  green-list wastes may be subject to
  amber-list or red-list controls by certain
  countries, in accordance with their
  domestic legislation and the rules of
  international law.
    b. Amber-List Wastes. Shipments of
  amber-list wastes destined for recovery
  within the OECD are subject to the
  amber-list control system. If, however,
  the waste is sufficiently contaminated
  with other wastes subject to red controls
  (i.e., red-list wastes or unlisted
  hazardous wastes) the waste then
  becomes subject to the red control
  regime. In addition, such waste could
  potentially be subject to other laws and
  regulations.
   Amber controls require that a
  shipment of amber-list waste move
  pursuant to a legally binding written
  contract or chain of contracts (or an
  equivalent arrangement if the notifier
  and the receiving facility are part of the
 same corporate or legal entity). The
 contract must include a provision for
 alternate management or re-export of the
 waste if it cannot be managed as
 planned and must include financial
 guarantees for such alternate
 management if so required by the
 competent authorities of any concerned
 country, in accordance with applicable
 national or international laws.  The U.S.
 does not require any financial
 guarantees for international waste
 shipments at this time.
   Prior to the proposed export, the
 notifier must provide written
 notification to the competent authorities
 of all concerned countries to allow them
 the opportunity to deny the shipment
 As defined in § 262.81(g) of today's rule,
 the notifier is the person under the
 jurisdiction of the exporting country
 who has, or will have at the time the
transfrontier movement commences,
possession or other forms of legal
control of the wastes and who proposes
their transfrontier movement for the
   ultimate purpose of submitting them to
   recovery operations (see section IE. B.
   9.). In certain cases, a general
   notification will be permissible. The
   competent authority of the exporting
   country may elect to perform the
   notification duties. EPA is the United
   States' competent authority for OECD
   purposes. Therefore, under today's rule,
   the notifier will provide written
   notification to EPA for exports from the
   U.S. of RCRA hazardous wastes subject
   to amber-list controls, and EPA will in
   turn notify the competent authorities of
   all concerned OECD countries. The
   competent authority of the importing
   country must issue an
  Acknowledgement of Receipt to the
  notifier and to the competent authorities
  of the exporting and transit countries
  within three working days of receiving
  the export notice. For the purposes of
  this rule, "transit country" refers only to
  a transit country that is a member of the
  OECD and is a Party to the Decision,
  including Canada [see section HI. B. 4.
  of today's preamble and § 262.81(d)].
  The competent authorities of the
  importing and transit countries have 30
  days to consent or object to the
  shipment. However, if the  competent
  authorities of the importing and transit
  countries do not notify the notifier in
  writing within 30 days of issuance of
  the Acknowledgement of Receipt that
  the request has been denied or that
  additional information is required, then
  tacit consent is deemed to be granted,
  and the shipment may proceed as
  specified in the notification.
   If a transit country denies consent, the
 proposed movement must be rerouted
 and a new notification must be
 submitted to EPA to forward to the new
 transit country. The movement may not
 commence until that OECD country
 tacitly or expressly consents to the
 movement.4
   The competent authority  of the
 importing country may also allow a
 notifier to submit a general notification
 for the shipment of amber-list waste
 when that type of waste is to be sent
 periodically by the same notifier to the
 same facility. The notification lasts up
 to one year and may be renewed. In
 addition, OECD countries may designate
 facilities that they have pre-approved
 for receipt of amber wastes (see section
 HI. C. 1. c.). When the U.S. receives
 notice from the OECD that specific
  4 If the transit country is not an OECD member
country, EPA's regulations at Part 262, Subpart E
apply. Under those regulations, EPA will provide
notice to such country of the proposed waste
movement, although under Subpart E consent of the
non-OECD transit country is not required. However,
EPA would transmit any response from the transit
country to the exporter.
   facilities are pre-approved by the
   competent authority of a foreign
   government, EPA will undertake to
   make that information available to U.S.
   notifiers. At the present time, there are
   no U.S. facilities pre-approved for
   receipt of amber wastes (see section
   VHI).
     Waste shipments must be
   accompanied by a tracking document.
   The WMPG developed forms in March
   1994 which are recommended to be
   used for notification and tracking
   purposes.5 These forms may be used by
   U.S. notifiers but will not be required
   until approved by OMB and codified
   into the regulations. For hazardous
   wastes exported from or imported to the
   United States, a uniform hazardous
  waste manifest also must accompany
  the waste shipment while it is in the
  jurisdiction of the U.S. (see section III
  D.).
    c. Red-List Wastes. The requirements
  for red-list wastes are similar to the
  requirements for amber-list wastes with
  one very important exception: tacit
  consent is not permissible. The red
  controls include: a written contract,
  chain of contracts, or equivalent
  arrangement where the notifier and
  recovery facility are part of the same
  legal or corporate entity; written
  notification to the competent authorities
  of the concerned countries;6 prior
  consent of the importing and transit
  countries; and a tracking document
  accompanying the shipment. However,
  unlike amber-list wastes, red-list wastes
  cannot be shipped unless all necessary
  consents are obtained in writing. (See
  section IH. C, D, & E for additional
  information).
   It is important  to note that, within the
 U.S., in addition  to the OECD
 requirements, some red-list wastes also
 may be subject to requirements under
 other legal authorities, such as
 regulations promulgated under the
 Toxic Substances Control Act (e.g., PCB
 regulatory controls promulgated in 40
 CFR Part 760; see section IV. B. 7. for
 additional information).
   d. When Wastes are Not Considered
 Hazardous by All Concerned Countries.
 There may be cases in which the
 concerned countries (i.e., exporting,
 importing, and transit) disagree over the
 level of control to be assigned to a waste
 on the OECD  lists.
   The Decision provides guidance in
 section H(4) for cases where the
   A copy of the recommended OECD notification
and tracking forms can be found in the docket for
this rule.
  6 Note that instead of the notifier, the competent
authority of the exporting country may, in
accordance with domestic laws, decide to transmit
this notification to importing and transit countries.

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16296      Federal Register / Vol. 61, No. 72  /  Friday, April  12,  1996 / Rules and Regulations
exporting country, using its national
procedures, does not consider a waste
on the amber or red OECD lists to be
hazardous, while the importing country
does. In such cases, the importing
country shall assume all obligations
assigned to the exporting country in
section's IV or V of the Decision, as
applicable, particularly with regard to
notification requirements. This means
that the competent authority of the
importing country or the importer
would notify the competent authorities
of the exporting country, for information
purposes, and transit countries, for
purposes of obtaining consent, prior to
the proposed import. If the exporting
country does not consider the waste to
be hazardous under its national
procedures, then no obligations under
the Decision rest on the  exporter and the
exporting country. For example, if the
U.S. does not consider a waste to be
hazardous, today's rule imposes no
obligations on the U.S. exporter.
However, the U.S. exporter may need to
provide information to the importer
(e.g., consignee, or owner or operator of
the recovery facility) so  that the
importer can supply the competent
authorities of the concerned countries
with the necessary notification
information. This information exchange
requirement may be worked out in the
contract, chain of contracts, or
equivalent arrangement for parties of the
same legal or corporate entity, so U.S.
waste handlers should anticipate such
requests from waste trading partners in
other OECD nations. Requests may go as
far as requiring the U.S. exporter to
notify all competent authorities in the
concerned countries for wastes not
considered hazardous in the U.S.
  In cases where only the exporting
country considers the amber- or red-list
waste to be hazardous, the country's
competent authority or exporter would
notify and seek consent of the importing
and transit countries prior to shipment
in accordance with the appropriate
amber-list or red-list controls. Although
these countries do not consider the
waste to be hazardous using their
national procedures, the consent of the
importing and transit countries is still
necessary under the laws of the
exporting country. The importer and
exporter would also be required to
comply with any contractual
requirements imposed by the exporting
country.
  The Decision also recognizes in
section 11(6) the right of OECD countries
to require amber-list or red-list controls
for wastes identified on the green list, in
accordance with domestic legislation
and international law, for the purpose of
protecting human health and the
environment. OECD countries are
required to inform the Secretariat of
such controls. For example, Austria has
stated that it subjects some green-list
wastes and all amber-list wastes to red-
list controls, while Sweden subjects
some green-list wastes to amber- or red-
list controls. Under today's rule, the
U.S. requires any green-fist wastes that
are hazardous under RCRA and subject
to manifesting requirements to move
under amber controls. In these cases, the
wastes are subject to the country's
controls only while they are in that
country's jurisdiction. Of course, the
exporter or importer may, as a
contractual matter, have to comply with
amber- or red-list control requirements
before the waste enters the jurisdiction
of the country that considers the waste
to be hazardous.
  The Decision does not address cases
where the exporting and importing
countries consider a waste to be non-
hazardous under their national
procedures but the transit nation does
consider it hazardous. In such
situations, the Agency views the transit
nation taking on similar responsibilities
as the importing nation in situations
when an importing nation is the only
country to consider a particular waste
hazardous (discussed above). That is,
the transit country shall assume the
obligations of the exporting and
importing countries. In practice, this
may mean that waste handlers in transit
nations may need to request information
from U.S. waste exporters through
contractual arrangements in order to
seek and obtain consent from the
competent authorities of the transit
countries.
  e. Availability of Waste Lists. The
current waste lists are available in the
RCRA docket under the number listed
above. The regulated community is
encouraged to periodically check the
docket for the latest lists.

m. Specific OECD Requirements and
Relationship to RCRA

A. Differences Between the OECD
Decision and Today's Rule
  Today's regulations implementing the
Decision are applicable only to
hazardous wastes destined for recovery
that (1) are hazardous under RCRA and
subject to manifesting requirements, and
(2) are sent to or received from an OECD
country other than Canada and Mexico.
All exports and imports of hazardous
waste to or from a non-OECD country,
to Canada or Mexico (see § VI), or to
OECD countries that are not Basel
Parties for the purpose of treatment
(other than recovery) or final disposal
must be in compliance with current
regulations discussed immediately
below.
  Current RCRA regulations differ from
the terms of the Decision being
implemented today. A summary of
differences between the two are shown
in Table 1 for comparative purposes
only and should not be used as a
substitute for today's regulations.
  EPA's current export regulations are
codified in 40 CFR 262, Subpart E. The
requirements include: notification to
EPA at least 60 days prior to export so
that EPA can notify the importing and
transit countries, prior written consent
by the importing country, a copy of the
EPA Acknowledgement of Consent
attached to the manifest accompanying
each shipment, and movement of the
shipment in  conformance with the
terms of such consent. The requirements
in Part 262 also include special manifest
provisions, exception reporting, annual
reporting, and recordkeeping. Special
transporter requirements are in 40 CFR
263.
  40 CFR part 262, Subpart F, requires
that U.S. hazardous waste importers
comply with the requirements for
generators (40 CFR 262) and specifies
that the importer must indicate the
name and address of the foreign
generator on the manifest. In addition,
40 CFR 264.12 and 265.12 require any
U.S. hazardous waste management
facility subject to Parts 264 or 265 that
arranges for the receipt of hazardous
waste from a foreign source to provide
a one-time notification to  EPA at least
4 weeks prior to receiving the waste.
EPA also reminds importers that they
must comply with the land disposal
restrictions once the wastes enter the
United States (see 40 CFR Part 268).

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                                  yol.
                                              N, 72 , Friday
                                                               §Ptt? n*PP™MPORT R^ULAT,ONS AND REGUUTIONS

      Issue


General:
   . Applicability	
  Imports:
     Notification
 Approval to im-
   port.

 Tracking 	
Financial assur-
  ance for al-
  ternate man-
  agement.
Contracts  	
                   Current RCRA regulation (40 CFR
                          262.50-262.60)
                       ""


                Governs  all  imports and  exports  of
                  HGRA  hazardous waste subject  to
                  Federal manifesting requirements  in
                  40 CFR Part 262 regardless of final
                  disposition.
                    One-time  advance  notice per waste
                      stream per foreign  source required
                      ^n??*™6"1' Borage, or disposal

                      264/265      re9Ulated UrXfer  Part
                    None required2	
                   A uniform hazardous waste manifest is
                     LTrelfr°M 2* Mme «» shipment
                     enters the U.S. until  it reaches the
                     designated facility.
                   None required	
                   None required
                                                         Today's regulations implementing OECD decision (40 CFR 262.80-262.89)
                                                    «*»* under U.S.
                                                    per the Decision.
                                                                                                  "' elempt "*"
                                                                                                      rity of his country,
                                                                            .   ws
                                                                                                                must
                                                     ss
                                                   ^^^^^~^p^^m Si9ned
Exports:
    Notification
   Approval of ex-
     port by com-
     petent au-
     thority of im-
     porting coun-
     try.
  Approval of ex-
     port by com-
    petent au-
    thority of
    transit coun-
    try.
  Tracking
 Financial assur-
   ance for al-
   ternate man-
   agement.
 Recordkeeping
  Notification fcr EPA at least 60 davs
    pnor to initial shipment is required;
    notice  then transmitted to importing
    and  transit  countries.  Notice may
    cover multiple shipments for up to 12
    months.

  TtlLimportin9 countfy must consent to
   meiexport. EPA  notifies exporter  by
   sending Acknowledgement of Con-
   sent or  objection.


 None required.  As  a practical  matter
   however, since EPA transmits any re^
   sponse  received   from  the  transit
   country,  EPA expects that the ex-
   porter would reroute shipment if the
   transit country objects.

 Uniform hazardous  waste  manifest
  •T acc2mpany t"6 shipment while
  in me U.S and a  copy must be left
  ^*. C^toms; EPA  Acknowledge-
  ment of  Consent  also must be at-
    £   ExP°rter must receive written
  confirmation of delivery  to  foreian
  consignee.                    s
None required 	
                                                                                                  vaient
                                                                                                 .Specifyin9 eacn resP°"-
                                                                                                                 -
                                                                                                    reHmP°rtation is

                                                                                            °r '^^ Operation carv
                                                                                             apply to recognized trad-
                                                                                c                  --
                                                    sible party handling
                                                    sible party in ^
                                                    necessary because arrangements
                                                    not be carried out as forest
                                                    ers as defined in §262.81(iT
                                                 a denial or requestr
                                                 porting country needed i
                                                                                           fr-.«;e date the competent
                                                                                             ^ °f M****** ""'ess
                                                                             is      d for    *"*'' "1 CO"Sent from im-
                                                   although prior notification ,J Triiuired  F^r r^f" Ppr°ved recovery fa«'"y.
                                                   necessary to export        re°.u"-ed. For red-list wastes, written consent is
                                                     a denial or
                                                                                                   the date the corn-
                                                                                              receiPt °f notification un-
                                                  ata, papef suwylng he
                                                          by OMB
                                                                                                   OECD
                                                                                                  l™CWn9
                                                                                           ™"» "sea unl,l OEOD (onn
                                                                                                    Trackins 
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 16298      Federal Register / Vol. 61, No.  72 / Friday, April 12, 1996 / Rules and Regulations
   TABLE 1—SUMMARY OF RELATIONSHIP BETWEEN CURRENT RCRA EXPORT/IMPORT REGULATIONS AND REGULATIONS
                                   IMPLEMENTING THE OECD DECISION—Continued
       Issue
  Current RCRA regulation (40 CFR
          262.50-262.60)
                                                      Today's regulations implementing OECD decision (40 CFR 262.80-262.89)
    Reporting 	


    Contract 	
Exporters must prepare and submit an
  annual report and exception reports
  to EPA.
None required	
Same as current requirements.
                                                    A legally binding written contract, chain of contracts, or equivalent arrangement
                                                      between parties of the same legal or corporate entity specifying the name of
                                                      each responsible person handling shipments of amber-list or red-list wastes
                                                      and the responsible party in case alternate management, re-exportation or re-
                                                      importation is necessary because arrangements for the shipment or recovery
                                                      operation cannot be carried out as  foreseen. Additional provisions apply to
                                                      recognized traders as defined in §262.81 (i).
  11mports from and exports to Canada and Mexico are governed under the U.SVCanada bilateral agreement, the U.S-/Mexkx> bilateral aqree-
 rnent, and EPA's current regulations. These regulations include 40 CFR 262 Subparts E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of to-
 udy s r&Qulcitions.
  5 For imports from Canada, the U.SVCanadian bilateral agreement requires notice and allows for tacit consent if no response is lodged 30 days
 after the notice is received. For imports from Mexico, the U.S./Mexico bilateral agreement requires notice, but does not allow for tacit consent
B. Definitions
  Many of the following definitions in
the Decision are being codified in
today's rule. In some cases, the OECD
definitions are somewhat different than
the current RCRA definitions. Where
they are, the differences are discussed.
The definitions codified at 40 CFR
260.10 (e.g., Transporter, etc.). continue
to apply to all terms not defined in
today's rule.

1. Competent Authorities
  Competent Authorities means the
regulatory authorities of concerned
countries having jurisdiction over
transfrontier movements of wastes
destined for recovery operations.
  The competent authority  will be the
agency or similar entity that has
authority over environmental or
hazardous waste issues in the receiving
country. A list of the contacts for
competent authorities of OECD
countries is provided in the docket for
this rule. The competent authority of the
United States is the U.S. Environmental
Protection Agency. All notices and
required information must be sent to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., SW,
Washington, DC 20460. The words
"Attention: OECD Export Notification"
should be displayed prominently on the
envelope.

2. Concerned Countries
  Concerned Countries means the
exporting and importing OECD
countries and any OECD countries of
transit.
  The OECD countries subject to this
Decision are: Australia, Austria,
                     Belgium, Canada,7 Denmark, Finland,
                     France, Germany, Greece, Iceland,
                     Ireland, Italy, Japan, Luxembourg,
                     Netherlands, New Zealand, Norway,
                     Portugal, Spain, Sweden, Switzerland,
                     Turkey, United Kingdom, and the
                     United States.8

                     3. Consignee
                       Consignee means the person to whom
                     possession or other form of legal control
                     of the waste is assigned at the time the
                     waste is received in the importing
                     country.
                       Currently there is a definition of
                     "consignee" at 40 CFR 262.51, which
                     means the ultimate treatment, storage,
                     or disposal facility in the receiving
                     country to which the hazardous waste
                     will be sent. The OECD's definition,
                     however, refers to the first person to
                     take physical or legal custody of the
                     waste. This is broader than the Agency's
                     definition in 40 CFR 262.51, but
                     imposes no new obligations on
                     importers. A consignee could be a
                     recognized trader, transporter, storage
                     facility operator, or recovery facility
                     operator. The OECD definition for
                     consignee will be codified today for
                     exports/imports of hazardous wastes
                     destined for recovery among OECD
                     countries to replace the current
                     definition found at 40 CFR 262.51.

                     4. Country of Transit
                       Country of Transit means any OECD
                     country other than the exporting or
                      7 Although Canada is subject to the Decision,
                    movements of waste between the U.S. and Canada
                    that otherwise would be governed by the Decision
                    will continue to be controlled by the U.S./Canada
                    bilateral agreement and EPA's current regulations.
                      'Mexico joined the OECD in June 1994.
                    Movements of waste between the U.S. and Mexico
                    will continue to be controlled by the U.S./Mexico
                    bilateral agreement and EPA's current regulations,
                    until such time as the U.S. and Mexico agree to
                    switch to procedures under the OECD Decision.
                          importing country across which a
                          transfrontier movement of wastes is
                          planned or takes place.
                            The Agency interprets this definition
                          to mean the same as transit country,
                          which is currently codified at 40 CFR
                          262.51 except that, for purposes of this
                          Decision, it is limited to OECD countries
                          as defined at 40 CFR 262.58(a).
                            It also should be noted that the United
                          States made a declaration that a state is
                          a transit state or "country of transit"
                          within the meaning of the Decision only
                          if wastes are moved, or are planned to
                          be moved, through its inland
                          waterways, inland waters, or land
                          territory. Thus, in the United States'
                          view, the movement of waste subject to
                          Subpart H through an OECD country's
                          territorial sea but not through its  inland
                          waterways, inland waters, or land
                          territory would not make that country a
                          transit country for the purposes of
                          today's rule.

                          5. Exporting Country
                            Exporting Country means any OECD
                          country from which a transfrontier
                          movement of wastes is planned or has
                          commenced.

                          6. Generator
                            Generator means a person whose
                          activities create wastes.
                            It is the Agency's interpretation that
                          the current RCRA regulatory definition
                          of generator found at 40 CFR 260.10 is
                          consistent with the OECD definition.
                          The RCRA definition states that a
                          "generator" means any person, by site,
                          whose act or process produces
                          hazardous waste identified or listed in
                          40 CFR part 261 or whose act first
                          causes a hazardous waste to become
                          subject to regulation. This is particularly
                          relevant with respect to section 11(8) of
                          the Decision, which provides that a
                          person who mixes two or more wastes,

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              Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996  / Rules and  Regulations      16299
 or otherwise changes the physical or
 chemical characteristics of the waste,
 thereby creating a new hazardous waste
 becomes the generator. Such persons
 henceforth assume responsibility for
 compliance with the generator duties
 under RCRA and applicable notifier
 provisions in today's rule.

 7. Importing Country
   Importing Country means any OECD
 country to which a transfrontier
 movement of wastes is planned or takes
 place for the purpose of submitting the
 wastes to recovery operations therein.

 8. International Waste Identification
 Code
   International Waste Identification
 Code ("IWIC") is the classification
 system specified and described in OECD
 Council Decision C(88)90(Final) of 27
 May 1988.
   Determining the International Waste
 Identification Code for a particular
 waste requires the completion of a
 specified formula with information
 provided in each of 6 Tables. Use of the
 IWIC is not required by the Decision,
 and as a practical matter, the IWIC has
 not been used by all OECD countries;
 therefore, the definition is not being
 codified today.

 9. Notifier
   Notifier is the person under the
 jurisdiction of the exporting country
 who has, or will have at the time the
 planned transfrontier movement
 commences, possession or other forms
 of legal control of the wastes and who
 proposes their transfrontier movement
 for the ultimate purpose of submitting
 them to recovery operations.
   When the U.S. is the exporting
 country, notifier means a person
 domiciled in the U.S. The Agency
 recognizes that in different situations
 recovery facilities, consignees,
 recognized traders, or generators can act
 as notifiers. If a person is a notifier, he
 is also a primary exporter under 40 CFR
 262.51.

 10. OECD Area
   OECD Area means all land or marine
 areas under the national jurisdiction of
 any OECD country. As used in these
 regulations, the term OECD countries
 means OECD areas.

 11. Person
  Person means any natural or legal
 person whether public or private.
  The Agency interprets this definition
 to be consistent with the definition of
 "person" currently found at 40 CFR
 260.10, which states that a Person
means an individual, trust, firm, joint
 stock company, Federal Agency,
 corporation (including a government
 corporation), partnership, association,
 State, municipality, commission,
 political subdivision of a State, or any
 interstate body.

 12. Recognized Trader
   Recognized Trader means a person
 who, with appropriate authorization of
 concerned countries, acts in the role of
 principal to purchase and subsequently
 sell wastes; this person has legal control
 of such wastes from time of purchase to
 time of sale; such a person may act to
 arrange and facilitate transfrontier
 movements of wastes destined for
 recovery operations.
   Under the Decision and today's rule,
 recognized traders who take physical or
 other forms of control (e.g., legal) of the
 waste may act as notifiers, consignees or
 recovery facilities with all associated
 responsibilities. As provided in § 262.86
 of today's rule, a recognized trader who
 takes physical custody of a waste and
 conducts recovery operations (including
 storage prior to recovery) is acting as the
 owner or operator of a recovery facility
 and must be so authorized in
 accordance with all applicable Federal,
 State, and local license or permit
 requirements. There also may be cases
 where recognized traders act as brokers
 for transfrontier movements of wastes
 that are not considered hazardous under
 U.S. national procedures, but which are
 considered hazardous by another OECD
 country. To conduct business in that
 OECD country, the broker would need
 to comply with the provisions of the
 Decision as implemented by the OECD
 country. The broker's responsibilities
 would most likely be addressed in his
 contract with his foreign business
 associates. Recognized traders should
 anticipate requests regarding contract
 information in such cases.
 13. Recovery Facility
  Recovery Facility means an entity
 which, under applicable domestic law,
 is operating or is authorized to operate
 in the importing country to receive
 wastes and to perform recovery
 operations on them.
  Any facility in the United States that
 is legally allowed to operate, to receive
 wastes, and to perform recovery
 operations and that conforms with any
 applicable regulations may meet this
 definition. This includes recovery
 facilities that are not required to obtain
 a RCRA permit. Manifested hazardous
 waste shipments must, however, be
 shipped to a RCRA designated facility
 (authorized under 40 CFR Parts 264,
 265, or 266 to accept manifested
hazardous waste). It is important to note
 that such facilities are not relieved of
 any regulatory requirements associated
 with discharges to air and/or water that
 may apply under the Clean Air Act or
 the Clean Water Act.

 14. Recovery Operations

   Recovery Operations means activities
 leading to resource recovery, recycling,
 reclamation, direct re-use or alternative
 uses as listed in Table 2B of the Annex
 of OECD Council Decision
 C(88)90(Final) of 27 May 1988.
   The Agency considers "recovery
 operations" to be consistent with the 40
 CFR 261.1 and 261.2 definitions for
 recycling and reclamation. Note,
 however, that under 40 CFR 261.2,
 certain wastes that are directly re-used
 and off-specification products that are
 reclaimed are not solid wastes; thus,
 they are not subject to either current
 RCRA regulations or the OECD
 requirements implemented today.

 15. Transfrontier Movement

   Transfrontier Movement means any
 shipment of wastes destined for
 recovery operations from an area under
 the national jurisdiction of one OECD
 country to an area under the national
 jurisdiction of another OECD country.
   The Agency is interpreting the phrase
 "area of national jurisdiction" in the
 United States to mean the 50 States, the
 District of Columbia, the
 Commonwealth of Puerto Rico, the U.S.
 Virgin Islands, Guam, American Samoa,
 and the Commonwealth of the Northern
 Mariana Islands.
  Note: The United States made a declaration
 that under international law, notification or
 authorization of coastal states is not required
 for passage through territorial seas and
 exclusive economic zones (EEZs).
 16. Wastes

  OECD defines wastes in the OECD
 Decision on transfrontier movements of
 hazardous waste C(88)90(Final) dated
 May 27,1988, as materials other than
 radioactive materials intended for
 disposal. "Disposal" is defined in Table
 2 of the same document to include
 typical disposal and recovery
 operations. The list of recovery
 operations are included in § 262.81(k) of
 today's rule. In this rule, EPA interprets
 wastes to include materials defined as
 solid and hazardous wastes in 40 CFR
 261.2 and 261.3 and is therefore not
 codifying the OECD waste definition.
 Materials outside the scope of EPA's
 definition of solid waste are not subject
to today's regulations. (As previously
noted, EPA may, in the future, identify
wastes under other statutes that are
subject to the OECD Decision).

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16300      Federal Register /  Vol.  61,  No. 72 / Friday, April 12, 1996  / Rules and Regulations
C. Notification and Consent for Exports

  Notification of potential exports of
hazardous waste destined for recovery
operations is a key component of the
OECD requirements to ensure that
wastes are not moved if there is any
objection from any of the concerned
countries. The notification and consent
requirement allows for the concerned
countries (i.e., exporting, importing and
transit) to determine whether the
hazardous waste can be handled safely
based on the requirements of their waste
management system and of the systems
and qualifications of the particular
facility that is designated to receive the
waste.
  As discussed previously in today's
preamble, only those hazardous wastes
subject to the Federal requirements for
manifesting under 40 CFR Part 262 are
subject to the RCRA export/import
requirements set forth in today's rule.
Notifiers subject to these rules must
follow the relevant amber-list or red-list
control procedures, as discussed below
and codified in §§ 262.82 through
262.86 of today's regulations.

1. Provisions Applicable to Amber-List
and Red-List Wastes

  Under the amber-list control system,
there are two options for notification
and consent for  shipments of amber-list
wastes. The first option requires written
notification with tacit or written
consent. The second option, a facility
pre-approval system, requires written
notification and is discussed in § III. C.
1. c. of today's preamble. Certain
contractual obligations also apply to
notifiers, recovery facilities and all other
parties to the waste movement. In
addition, under the red-list control
system,  facility pre-approval is not
allowed for shipments of any red-list
wastes. Finally,  although the
notification requirements for red-list
wastes are the same as those applicable
to amber-list wastes, tacit consent is not
permissible for red-list wastes.
  a. Notice and Consent for Specific
Shipments. According to the Decision,
the notifier must provide written
notification of intent to export to the
competent authorities of the concerned
countries (i.e., exporting, importing and
transit) prior to  shipment.9 The Agency
today is requiring such notices to be
submitted to EPA 45 days prior to the
commencement date of the proposed
shipment of waste for recovery within
  'Note that the competent authority of the
exporting country may, in accordance with
domestic laws, decide to transmit this notification
to importing and transit countries.
the OECD.10 EPA considers this period
of 45 days as appropriate in order to
allow time for EPA to review and
process the notification documents, the
Acknowledgement of Receipt to be sent
by the importing country (as required by
the Decision), and the 30-day tacit or
written consent period (required by the
Decision). In addition, EPA considers
this period of 45 days rather than 60
days prior notice set forth in current
U.S. regulations, as appropriate for
today's rule, because within the OECD
context notifications and consents are
often faxed and disseminated in a much
more expedient manner than in other
contexts. EPA, in lieu of the U.S.
notifier, will forward the export notices
to the importing and transit countries.
  The export notification must contain
the information specified in Appendix 2
of the Decision. Much of this
information is already required for U.S.
exports.
  The OECD notification information
includes:
  (1) Serial number or other accepted
identifier on the notification form;
  (2) Notifier name, address, and
telephone and telefax numbers;
  (3) Importing recovery facility name,
address, telephone and telefax numbers,
and technologies employed;
  (4) Consignee name, address, and
telephone and telefax numbers if the
person is different than the owner or
operator of the recovery facility;
  (5) Intended transporters and/or their
agents;
  (6) Country of export and relevant
competent authority (the U.S.
Environmental Protection Agency);
  (7) Countries of transit and relevant
competent authorities;
  (8) Country of import and relevant
competent authority;
  (9) Statement of whether the shipment
is a single-shipment notification or a
general notification. If general, period of
validity requested;
  (10) Date foreseen for commencement
of transfrontier movement;
  (11) If required by any concerned
country, certification that any
applicable insurance or other financial
guarantee is or shall be in force covering
the transfrontier movement
  (Note: The U.S. does not currently require
such financial assurance);
  (12) Designation of waste type(s) from
the appropriate list (amber or red), and
the wastes' description(s), probable total
quantity of each, and an accepted
uniform classification code (such as
RCRA waste codes and UN numbers and
OECD waste list codes) " for each;
  (13) Certification that a written
contract or chain of contracts or
equivalent arrangement between or
among all parties to the transfrontier
movement, as required by § 262.85, are
in place and are legally enforceable in
all concerned countries; and
  (14) Certification that the information
is complete and correct to the best of
his/her knowledge.
  hi accordance with the existing Part
262 export regulations, EPA will
continue to require the notifier to
identify facility EPA  ID numbers, if
applicable, and information on the
points of entry to and departure from all
foreign countries.
  In July 1994, the OECD/WMPG
finalized two forms: one to be used for
export notification and the other to
accompany the shipment for tracking
purposes. The OECD/WMPG
recommends, but does not require,
using the forms. EPA also recommends
using the forms, but cannot require their
use until they are approved by OMB,
and until EPA promulgates such
requirement. Before these events occur,
EPA believes that OECD countries,
exporters and importers need to gain
experience with using the forms to
determine if any modifications are
needed; thus, EPA recommends the
forms be used immediately. Notification
forms are to be submitted to the Office
of Enforcement and Compliance
Assurance, Office of  Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401 M St., S.W.,
Washington, DC 20460, with "Attention:
OECD Export Notification" prominently
displayed on the envelope. If the
notification is complete, EPA will
forward a copy to the competent
authorities of the importing country and
any transit country. The importing
country must acknowledge receipt of
the notification within three working
days. The Acknowledgement of Receipt
will be sent by the competent authority
of the importing country simultaneously
to EPA, to the notifier,  and to the
competent authority  of any transit
country. EPA will accept a telephone
facsimile of such acknowledgements.
  During the 30-day  period after the
Acknowledgement of Receipt is sent to
EPA and the notifier, the competent
authority of the importing country as
well as any transit country may object
to the proposed movement of wastes.
Objections by any of the concerned
  10 Note that current U.S. regulations require 60
days prior notice. See 40 CFR 262.50-262.60.
  11 EPA requires UN numbers and RCRA waste
codes in addition to the OECD waste list codes to
be included per §262.83(e)(ll) of today's rule.

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            Federal Register / Vol. 61, No. 72  / Friday,  April 12,  1996  / Rules and  Regulations
                                                                   16301
countries must be provided in writing to
EPA, to the notifier, and to the
competent authorities of other
concerned countries within the 30-day
period. The OECD-recommended
notification form was designed to be
used for Acknowledgement of Receipt,
consent, and objection purposes.
  In the case of amber-list wastes, if no
objections to the waste movement are
submitted within the 30-day period,
tacit (or implied) consent is granted and
the movement of wastes may begin.
Tacit consent expires one calendar year
after the close of the 30-day period. If a
shipment for which tacit consent has
been given does not take place within
that time, a new notification must be
submitted and a new consent obtained.
Competent authorities of concerned
countries may also choose to provide
written consent to the notifier and
concerned countries in less than 30
days. In this event, the waste shipment
may begin immediately after the last
consent is received from all of the
competent authorities, hi the case of
red-list wastes, the export of such waste
may not occur until the importing and
all transit countries provide written
consent. Written consent expires within
one calendar year, unless otherwise
specified.
   b. General Notification. In cases
where similar wastes (e.g., those having
similar physical and chemical
characteristics, the same UN
classification, and same RCRA waste
codes) are to be sent periodically to the
same recovery facility by the same
notifier, the competent authorities of
concerned countries may elect to accept
one notification for these wastes for a
period of up to one year. The notifier
must indicate on the form that the
notification is general. Such acceptance
may be renewed for additional periods
of up to one year each. A concerned
country may revoke its acceptance at
any time by official notice to the notifier
 and to the competent authorities of all
 other concerned countries.
   c. Pre-approval for Recovery Facilities
 Managing Amber-List Wastes. The
 competent authority of an importing
 country with jurisdiction over specific
 recovery facilities may decide that it
 will routinely consent to the shipments
 of certain amber-list waste types to
 specific recovery facilities. An
 importing country wishing to employ
 this process must inform the OECD
 Secretariat of the recovery facility name
 and address, technologies employed,
 waste types to which the pre-approval
 applies, the time period covered, and
 any subsequent revocations.
   No specific consent is required from
 the importing country when waste is to
be sent to a facility pre-approved to
accept that waste. However, the notifier
planning to ship waste to a pre-
approved recovery facility must notify
the Agency pursuant to § 262.83(e) prior
to shipment. Therefore, the notifier
must submit a notification to the
Agency at least 10 days in advance of
the shipment to allow time for EPA to
verify that the proposed recovery
facility has received pre-approval, that
the pre-approval is still valid, and that
the export notice meets any conditions
set by the importing country. For
example, the importing country may
need to stop the shipment in the event
that the pre-approved facility needs to
shut down operations temporarily for
maintenance or repair. Moreover, the
competent authorities of all concerned
countries may restrict or prohibit such
waste shipments in accordance with
applicable domestic laws. In addition,
pre-approval designations may be
limited to a specific time period and
may be revoked at any time. Shipments
may commence after the notification has
been received by competent authorities
of all concerned countries, unless the
notifier has received information
indicating that the competent authority
of one or more concerned countries
objects to the shipment. The general
notification  procedures discussed above
may be used for multiple shipments of
the same waste type to pre-approved
facilities, hi addition, the regulations
pertaining to tracking documents and
contracts apply. As discussed in § HI. F.
3. of today's preamble, EPA has not yet
decided whether or how to pre-approve
U.S. recovery facilities for the purpose
of granting prior consent. The issue will
be addressed in a future rulemaking.
   Facilities  that intend to receive
shipments of red-list wastes are not
eligible for pre-approval. Rather, each
shipment of red-list waste must proceed
pursuant to a specific or general
notification for which written consent
was received.
   d. Return or Re-Export of Shipments.
If the shipment of amber-list or red-list
waste cannot be managed in the
 importing country as planned and if
 alternate management is unavailable or
 unacceptable in the importing country,
 the party designated in the contract as

 management of the waste in such cases
 may decide to return the waste to the
 notifier or to export the waste to a third
 OECD country where a suitable facility
 can manage it. Any such re-export must
 comply with the requirements of
 §262.82(c)  of today's regulations.
 Competent  authorities of all concerned
 countries (importing, transit, exporting),
 in addition to the competent authority
of the initial exporting country, must be
notified. Each competent authority has
up to 30 days to object to the re-export.
The 30-day period begins when the
competent authority of both the initial
exporting country and the new
importing country issue
Acknowledgements of Receipt of the
notification. The re-export may
commence once the competent
authorities of all concerned countries
have consented (i.e., tacit or written for
amber-list wastes, written for red-list
wastes). Re-export to a third country
outside the OECD is fully subject to the
notification and consent requirements
outlined above with respect to the
initial exporting country and any OECD
transit country, as well as to the
domestic laws of the original importing
country and to any applicable
international agreements or
arrangements to which the (original)
importing OECD country is a Party,
including (if appropriate) EPA's current
regulations.
  The provisions for return or re-export
of red-list wastes are the same as for
amber-list wastes except that written
consent must be obtained from all
concerned countries (i.e. tacit consent is
not permissible for red-list wastes).
  U.S. persons are not required to
comply with the re-export provisions of
today's regulations with respect to
amber- or red-list wastes that are not
considered hazardous under U.S. law. If
the waste is considered hazardous in the
other concerned OECD countries,
however, U.S. exporters of such wastes
may find it expedient (or necessary) to
comply with return or re-export
requirements of those countries in order
to continue trade with them. These
requirements may be addressed under
the terms of their contracts with their
trading partners.

 2. Unlisted Wastes
   If waste not appearing on the green,
 amber, or red lists is a RCRA hazardous
 waste as defined in 40 CFR 261.3 and
 is subject to the Federal manifesting
 requirements under Part 262, the waste
 is subject to the notification and consent
 requirements established for red-list
 wastes (i.e., prior written consent is
 required). However, if a waste does not
 appear on any of the OECD lists and is
 not a RCRA hazardous waste subject to
 manifesting requirements, the waste
 may be handled as a green waste; thus
 no prior notification to EPA is required.
 Notifiers should note, however, that the
 importing and transit countries may
 require notification and consent
 controls for such wastes if they are
 considered hazardous in their respective
 countries and if such controls are

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16302      Federal Register / Vol. 61, No.  72 / Friday, April 12, 1996 / Rules  and Regulations
required by the domestic law of those
countries, hi such cases, the foreign
importer may ask U.S. notifiers to
assume contractual obligations requiring
compliance with such provisions.

D. Tracking Documents
  The Decision requires that a tracking
document must accompany each
transfrontier shipment of amber-list or
red-list waste until it reaches its final
destination (the designated recovery
facility). The purpose of the tracking
document is to provide pertinent
information concerning the shipment to
any interested entity while the waste is
en route.
  All hazardous wastes subject to
today's rule (whether amber, red, or
unlisted, and whether constituting a
U.S. import or export) must be
accompanied by a tracking document
that contains all the information in
§ 262.84 of today's regulations. This
includes all the information required
under § 262.83(e), plus the following
information:
  (a) Date shipment commenced;
  (b) If not same as the notifier, name,
address, and telephone and telefax
numbers of primary exporter (i.e.,
shipper);
  (c) Company name and EPA ID
number of all transporters;
  (d) Means and mode of transport,
including types of packaging;
  (e) Any special precautions to be
taken by transporters;
  (f) Certification by notifier that no
objection has been lodged by the
competent authorities of all concerned
countries. The notifier must sign the
certification; and
  (g) Appropriate signatures for each
custody transfer (transporter, consignee,
and owner or operator of the recovery
facility).
  As discussed earlier, the OECD has
developed a form for tracking purposes,
in conjunction with the OECD
notification form, which is
recommended for use by the OECD. The
OECD developed the notification and
tracking forms for use by OECD
countries implementing the Decision,
the European Union to implement its
waste regulations, and non-OECD
countries for implementing the Basel
Convention. After gaining experience in
using the notification and tracking
forms,  the OECD may need to modify
them. The Agency anticipates requiring
their use in a future rulemaking.
  Until the OECD tracking form is
codified into the RCRA regulations,
exporters and importers may either use
the OECD tracking form itself, or may
supply all the information required in
§ 262.84 on a separate sheet of paper. In
the latter case, all information should be
typed or printed and should be
numbered to correspond to § 262.84
requirements. As a practical matter,
most U.S. exporters and importers will
be using the OECD-recommended forms
if the OECD countries with which they
are trading require their use.

1. Routing of Tracking Document
  As with the Uniform Hazardous
Waste Manifest, EPA will not require
the tracking document (or information
on separate paper) to accompany the
waste when moving by rail or bulk
shipment by water. The regulated
community should continue to follow
the manifest procedures for routing the
forms in 40 CFR 262.11 Subpart B.
  Within 3 working days of its receipt
of the hazardous wastes subject to
amber-list or red-list controls, the owner
or operator of the recovery facility must
send signed copies of the tracking
document to the export notifier, to
EPA's Office of Enforcement and
Compliance Assurance, and to the
competent authorities of the importing
and transit countries. The original
tracking document must be retained by
the recovery facility for at least 3 years.
These requirements are codified in
§§264.12, 265.12, 264.71 and 265.71 of
today's rule.
  Where U.S. recovery facilities are
receiving wastes from other OECD
countries that are considered hazardous
in that country but not in the U.S.,
today's regulations do not apply for the
U.S. recovery facility. However,
contractual  provisions imposed on the
foreign exporter for the shipment to the
U.S. recovery facility may result in
certain obligations for the facility, such
as returning a signed tracking document
to the notifier and to competent
authorities of concerned countries.
While the U.S. government does not
have the authority to enforce the
requirements  of other countries for
wastes that  are not hazardous in the
U.S., the U.S. may provide cooperative
assistance to other OECD countries hi
their efforts to enforce their own laws,
including sharing information and
investigative support, pursuant to
domestic and international law.12 The
owner or operator  of the U.S. recovery
facility should be aware that the
exporting country is unlikely to consent
to the shipment (or future similar
shipments)  absent performance of these
duties.
  12 For example, the Hague Evidence Convention,
to which the U.S. and several OECD countries
belong, establishes procedures for assistance in
evidence-gathering which may be used to support
cooperation in civil enforcement.
E. Contracts
  Under today's rule, transfrontier
movement of hazardous wastes subject
to amber-list or red-list controls may
occur only under the terms of a valid
written contract, chain of contracts, or
under equivalent arrangements between
facilities controlled by the same legal
entity. Therefore, the export notifier and
the owner or operator of the authorized
recovery facility must enter into such
contracts or arrangements, hi addition,
all persons involved in such contracts or
arrangements must have appropriate
legal status to assume the required
contractual obligations.
  For the purposes of this rule, a valid
contract is one that complies with the
requirements of § 262.85 of today's rule.
Among other things, the contracts or
equivalent arrangements must identify
the generator of each type of waste being
shipped, all persons who will have
physical custody or legal control of the
waste, and the designated recovery
facility, hi addition, the contracts or
equivalent arrangements must identify
the party who will assume
responsibility for the waste if alternate
management of the waste is necessary.
In addition, such contracts or
arrangements must identify the person
responsible for obtaining consent for
export of the waste to a third country,
if the need should arise. Contracts or
equivalent arrangements must also
contain provisions requiring each
contracting party to comply with all
applicable requirements of today's
regulation. Thus, contracts provide a
mechanism to ensure that all parties
involved in the transfrontier movement
of waste destined for recovery
operations are cognizant of and assume
appropriate responsibilities for the
controls placed on the waste shipment.
  If required by the concerned
countries, the contract, chain of
contracts, or equivalent arrangement
must also include provisions for
financial guarantees to provide for
alternate recycling, disposal, or other
means of sound management should the
need arise. Currently, the U.S. does not
impose such a financial requirement.
Competent authorities of exporting and
importing countries may, under
domestic law, also require the notifier to
provide copies of contracts or portions
thereof. Under today's rulemaking, EPA
is not requiring routine submission of
contracts to EPA. The Agency could,
however, request such information on a
case-by-case basis, if necessary to
process export/import notices or for
enforcement purposes. Upon request,
such information shall be held as
confidential to the extent allowed under

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             Federal  Register / Vol. 61, No. 72  /  Friday, April 12, 1996 / Rules and Regulations       16303
domestic law. Information for which a
claim of confidentiality has been
asserted will be managed in accordance
with the provisions in 40 CFR Part 2
and 40 CFR 260.2 (as amended today),
which allows information submitted by
export notifiers in their notification of
intent to export to be released to the
U.S. Department of State and
appropriate authorities of receiving
countries regardless of claims of
confidentiality.
  As discussed earlier, there may be
cases where U.S. parties are engaged in
transfrontier movements of waste that
are not considered hazardous under
U.S. national procedures but that are
considered hazardous by another OECD
country. In order for such waste
movements to proceed, U.S. parties
would need to comply with the
provisions of the Decision as
implemented by the other OECD
country. It is likely that the OECD
country will rely on the contract in
these situations to define the
responsibilities of all parties engaged in
the transfrontier movement. Thus, U.S.
waste exporters, importers, and
recognized traders should anticipate
requests from their foreign counterparts
to address these responsibilities in a
contract. OECD countries are also free
under the Decision to require contract
elements beyond those specified in the
Decision and today's rule.  Such
elements may include:13
—Delineation of when and where
  responsibilities shift for alternative waste
  management if disposition cannot be
  carried out as described in the Notification
  of Intent to Export;
—Certification of compliance with tracking
  document requirements, particularly the
  obligation of the U.S. receiving facility
  under § 262.84(e) to return signed tracking
  documents to the foreign notifier and
  competent authorities of the concerned
  countries;
—Description of the specific financial
  guarantee mechanism if one is required by
  any concerned country;
—Certification that all U.S. waste handlers in
  the contract are authorized under U.S. law
  to carry out their transporter or waste
  recovery functions;
—Provision requiring each  contracting party
  to comply with all applicable laws of the
  concerned countries;
—Identification of parties responsible for
  language translations of export
  notifications or tracking document; and
—Procedures for modifying the contract,
  particularly to reflect future modifications
  to the Decision.
  "This list is intended to be illustrative only; U.S.
parties may find foreign business associates
requesting additional elements in their contracts in
accordance with the domestic laws and regulations
of other OECD countries.
F. Importers

1. Definition

  There is no definition of "importer"
in the Decision, the RCRA regulations,
or the RCRA statute. However, persons
importing hazardous waste have various
responsibilities and duties under EPA's
current regulations and today's rule,
including the contract provisions of
§ 262.85. Transfrontier movements of
amber-list or red-list wastes must occur
under the terms of a valid written
contract, or chain of contracts, or
equivalent arrangements (when the
movement occurs between parties
controlled by the same corporate or
legal entity). That contract or equivalent
arrangement must specify
responsibilities of each entity handling
the waste starting with the notifier and
ending with the owner or operator of the
recovery facility. In addition, hazardous
waste importers must comply with all
applicable requirements for generators
and transporters pertaining to
manifesting in 40 CFR Parts 262 and 263
as well as die facility import notification
requirements in 40 CFR 264.12 and
265.12 if the facility is  subject to Parts
264 or 265. Also, hazardous waste
importers in the U.S. must comply with
U.S. Customs' rules, provisions under
the Toxic Substances Control Act
concerning the import  of chemical
substances (see § IV. B. 6. and VII of
today's preamble), and any other
applicable legal requirements.
  Any U.S. entity that meets the
definition of "consignee" in today's rule
(i.e., the first person to whom
possession or other form of legal control
of the waste is assigned once received
in the importing country), such as
transporters, recognized traders, storage
facility operators, or recovery facility
operators, may be acting as an importer
of hazardous wastes and therefore may
be subject not only to the requirements
of Subpart H but also to current
regulations applicable to importers, in
40 CFR Part 262, subpart F.

2. Requirements

  a. Notification of Receipt. In order to
implement the Decision, today's
regulations at § 262.84(d) require that
the owner or operator of the U.S.
recovery facility send a signed copy of
the tracking document  to the notifier
and to the competent authorities of the
concerned countries, including EPA,
within three working days of receipt of
a waste subject to amber-list or red-list
controls. The tracking document must
contain the signatures of all parties that
had custody of the waste (see § HI. D.
discussion on tracking  documents).
  It is important to note that once a
hazardous waste enters the U.S., that   ,
waste and its management are subject
not only to the OECD procedures for
transfrontier movements implemented
in today's final rule, but also to all other
applicable U.S. regulations. Hence,
RCRA hazardous wastes subject to
today's rules must be managed in
accordance with any applicable
generator, transporter, and facility
requirements (e.g., packaging and
labelling, return  of manifest to the
generator, manifest discrepancy, and
storage facility requirements) for
hazardous waste recyclables specified in
40 CFR 261.6 and part 266, in addition
to the Part 268 standards and
requirements under other statutes (e.g.,
TSCA). When EPA (as the competent
authority) receives a notification of
potential export  from a foreign exporter,
the Agency will review the proposed
import notice to  determine if the waste
is destined for a recovery facility that is:
(1) authorized to manage the specified
waste in accordance with the facility's
RCRA  permit or  interim status
requirements; or (2) allowed to receive
the waste under U.S. laws and
regulations but is not required to have
a RCRA permit.
  b. Pre-Approval of U.S. Recovery
Facilities. The Decision allows
importing countries to pre-approve
specific recovery facilities for receiving
shipments of certain amber-list wastes
(see § ffl. C. 1. c.  of today's preamble).
EPA has not yet determined whether or
how it will pre-approve U.S. recovery
facilities but has reserved § 262.88 of
today's regulations for this purpose.
  EPA currently exempts many waste
recycling (e.g., reclamation, recovery,
regeneration) units from RCRA
permitting standards for the actual
recycling of the materials. However,
storage of hazardous wastes prior to
recycling does trigger RCRA
requirements, which may include a
permit requirement. There are also
special circumstances where EPA either
totally or partially exempts certain
recycling facilities from RCRA
regulation (see § IV of today's preamble).
In such cases, EPA waste management
officials may lack sufficient information
regarding a recycling facility's design
and operation, and thus may be unable
to adequately assess the suitability of a
particular recovery operation to be pre-
approved to receive certain amber-listed
wastes. The Agency, therefore, will
defer consideration of the issue of pre-
approval for U.S. recovery facilities
until a later date (see § VIE of today's
preamble).

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  16304
Federal Register  /  Vol.  61. No. 72 / Friday. April 12. 1996 / Rules and Regulations
  G. Reporting and Recordkeeping
    The only new recordkeeping
  requirements imposed in today's rule
  pertain to recovery facilities, which are
  now required to send signed copies of
  the tracking document to the competent
  authorities of the concerned countries
  and to retain copies for three years. In
  addition to these new requirements,
  EPA recodifies in Subpart H for OECD
  purposes the current recordkeeping and
  reporting requirements at 40 CFR 262.51
  that are applicable to primary exporters.
  Recordkeeping and reporting
  requirements for shipments of
  recyclable wastes to and from OECD
  countries are in § 262.87 and apply to
  individuals, including notifiers and
  recognized traders, that meet the
  definition of primary exporter at 40 CFR
  262.51.
   Annual reports on exports of
  hazardous waste to OECD countries for
  recovery must continue to be filed with
  the Administrator no later than March 1
  of each year. As discussed in the August
  8,1986 Final Rule on exports (51 FR
  28664), there may be more than one
  party acting as primary exporter (i.e.,
 persons that are required to originate
 manifests under Part 262 and any
 intermediaries arranging for the export).
 For the purpose of today's rule, EPA
 expects one party (e.g., notifier or
 recognized trader acting as notifier) to
 submit the notification, keep the
 required records, and submit the
 required annual report, etc. Parties to
 transfrontier shipments should decide
 among themselves which U.S. party
 should fulfill these duties. Enforcement
 actions can, however, be taken against
 all waste handlers (e.g., notifiers,
 recognized traders, consignees, recovery
 facilities) associated with the
 transfrontier movement of wastes for
 recovery within the OECD.
  If an individual is already required
 under 40 CFR 262.56 to file an annual
 report for other hazardous waste
 exports, he need only file one annual
 report. EPA is requiring, however, that
 information on OECD exports covered
 under this Subpart be contained in a
 separate section of the annual report
 since the U.S. must provide this
 information annually to the OECD.
  Under § 262.87, annual reports must
 accurately summarize the types,
 quantities, frequency, and ultimate
 destination of all hazardous waste
 exported during the previous calendar
 year. In addition, the report must
 include the facility's EPA identification
number, and name and address of the
 filer; the calendar year covered; the
name and address of each final recovery
facility; by each final recovery facility,
                         a description of the waste exported,
                         name and address of each transporter
                         used, the total amount of hazardous
                         waste shipped during the year, and the
                         number of shipments during the year; a
                         description of the waste minimization
                         efforts and results during the year;14 and
                         a certification statement attesting to the
                         accuracy of the information in the report
                         and an acknowledgement of the
                         potential penalties for filing false
                         information. The annual report must
                         also contain the designations of the
                         waste type(s) from the OECD waste lists,
                         the applicable waste code from the
                         OECD lists incorporated by reference in
                         § 262.89 of today's rule, and the U.S.
                         Department of Transportation hazard
                         class. Annual reports must be sent to the
                         Office of Enforcement and Compliance
                         Assurance, Office of Compliance,
                         Enforcement Planning, Targeting and
                         Data Division (2222A), Environmental
                         Protection Agency, 401 M St., SW.,
                         Washington, DC 20460.
                          EPA also is recodifying in § 262.87 the
                         requirement in § 262.55 that persons
                         who meet the definition of primary
                         exporters (e.g., notifiers or recognized
                         traders acting as notifiers) must file
                         exception reports, under certain
                         circumstances. For the purpose  of OECD
                         exports, the written confirmation of
                         delivery consists of the signed copy of
                         the tracking form sent by the owner or
                         operator of the recovery facility to the
                        notifier as required in the parties'
                        contract pursuant to § 262.85(f).
                          The Agency is requiring individuals
                        who meet the definition of primary
                        exporters at 40 CFR 262.51 to continue
                        to maintain specified records for at least
                        three years, consistent with current
                        practice and RCRA export
                        recordkeeping requirements. These
                        records include, where applicable, a
                        copy of each  annual report from the
                        three previous years, a copy of each
                        written consent obtained from
                        competent authorities of concerned
                        countries (in  lieu of EPA
                        Acknowledgement of Consent), and a
                        copy of each confirmation of delivery by
                        the recovery facility (i.e., tracking
                        document). If there is an unresolved
                        enforcement action pending or if
                        requested by the Administrator, the
                        record retention period may be
                        extended.
                         14 Waste minimization information is required in
                       even numbered years only. No waste minimization
                       information is required under this section if (1) less
                       than 1,000 kg of waste was exported in each month
                       of the calendar year pursuant to this subpart; or (2)
                       the information was already submitted as part of a
                       biennial report under 40 CFR 262.41.
  IV. OECD Waste Lists and Relationship
  to RCRA

  A. Relationship of OECD Wastes and
  RCRA Hazardous Wastes
    The full text of the Decision
  containing the waste lists is included in
  the official record for today's rule, and
  the green, amber, and red waste lists are
  incorporated by reference in § 262.89 of
  today's regulations. EPA has developed
  a table that provides a general guideline
  of possible RCRA wastes and waste
  codes that may correspond to the amber
  and red listings, which is available in
  the docket for today's rule.  Because the
  OECD waste category descriptions for
  the amber and red lists are broad and
  may include both RCRA hazardous
  waste and waste that is not hazardous
  under RCRA, EPA is unable to
  predetermine applicable RCRA waste
  codes in the absence of information on
  the physical and chemical
  characteristics  of the particular wastes
  involved.

  B. Status of Specific RCRA Hazardous
  Wastes

  1. Definitions of Wastes Subject to
 National Procedures
   The Decision establishes varying
 controls depending on whether a waste
 is considered hazardous by  the country
 of export or import, based on the
 country's "national procedures." For
 purposes of today's rule, EPA considers
 that a waste is hazardous under U.S.
 national procedures if the waste meets
 the following RCRA requirements: (1)
 Meets the Federal definition of
 hazardous waste in 40 CFR 261.3; and
 (2) is subject to either the Federal
 manifest procedures of 40 CFR part 262,
 or to the universal waste management
 standards of 40 CFR part 273, or to State
 requirements analogous to Part 273. (As
 previously noted, EPA may, in the
 future, identify  wastes under other
 statutes that are subject to the OECD
 Decision). Under the RCRA regulations,
 however, certain wastes do not meet the
 Federal hazardous waste definition
 when they are recycled, or are not
 subject to the Federal manifesting
 requirements, or are not subject to
 Federal or State universal waste
 management standards. Such wastes are
 exempt from today's rules. [Please see
 discussion on universal wastes in
 section IV. B. 6.  below.]
  Such exempt wastes would, however,
remain subject to the controls normally
applied to international commercial
transactions, just as green-list wastes are
subject to these controls (e.g., bill of
lading, international insurance, etc.).
However, the exporter of U.S. exempt

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Federal Register / Vol. 61, No.  72 / Friday, April 12,  1996 / Rules and Regulations       16305

                                                                defined as hazardous waste in
                                                                accordance with Subtitle C of RCRA.
                                                                Additionally, some of the wastes are
                                                                specifically excluded from the
                                                                definition of hazardous waste [see 40
                                                                CFR 261.4(1))], and therefore, are not
                                                                subject to the requirements of Subtitle
                                                                C. Because these wastes are not defined
                                                                as hazardous and are not subject to the
                                                                Federal manifesting procedures, among
                                                                other procedures, they are not covered
                                                                under the RCRA export/import
                                                                requirements set forth today. These
                                                                exempt wastes may, however, be subject
                                                                to controls imposed by other OECD
                                                                countries. EPA expects to bring
                                                                additional solid wastes that are
                                                                currently excluded from the definition
                                                                of hazardous waste under export and
                                                                import controls in the future.
                                                                   Below are examples of wastes that are
                                                                currently identified at 40 CFR 261.4(a)
                                                                as excluded from the definition of solid
                                                                waste. Persons interested in determining
                                                                whether a particular waste is excluded
                                                                from the definition of solid waste will
                                                                need to consult 40 CFR 261.4(a)
                                                                directly.
                                                                —Domestic sewage and any mixture of
                                                                   domestic sewage and other waste that
                                                                   passes through a sewer system to a
                                                                   publicly owned treatment works for
                                                                   treatment;
                                                                —Industrial point source wastewater
                                                                   discharges subject to § 402 of the
                                                                   Clean Water Act;
                                                                —Irrigation return flows; and
                                                                —Source, special nuclear, or byproduct
                                                                   material as defined by the Atomic
                                                                   Energy Act of 1954, as amended.
                                                                —Materials subjected to in-situ mining
                                                                   techniques that are not removed from
                                                                   the ground as part of the extraction
                                                                   process;
                                                                 —Pulping liquors reclaimed in a
                                                                   pulping liquor recovery furnace and
                                                                   then reused in the pulping process,
                                                                   unless they are accumulated
                                                                   speculatively;
                                                                 —Spent sulfuric acid used to produce
                                                                   virgin sulfuric acid, unless it is
                                                                   accumulated speculatively;
                                                                 —Secondary materials that are
                                                                   reclaimed and returned for reuse to
                                                                   the original production process where
                                                                   they were generated provided, inter
                                                                   alia, that the process is a closed-loop
                                                                   system, only tank storage is involved,
                                                                   and there is no combustion used;
                                                                 —Spent wood preserving solutions that
                                                                   have been reclaimed and are reused
                                                                   for their original intended purpose;
                                                                   and
                                                                 —Coke and coal tar from the iron and
                                                                   steel industry that contain or are
                                                                   produced from decanter tank tar
                                                                   sludge (K087) when coke and coal tar
                                                                   are used as a fuel.
wastes may still be required by her/his
contract with the foreign consignee to
comply with notification, consent, and
contractual requirements imposed by
other concerned countries as a
condition of exporting the waste if one
or more of those concerned countries
considers the waste hazardous. OECD
countries are acting within the terms of
the Decision if they impose such
obligations for wastes they consider
hazardous, and will likely reject any
shipment which does not comply with
these requirements. Thus, if a person is
considering exporting recyclable waste
to an OECD country,  that person should
determine the status of the waste in
question (under the national procedures
of the importing and  transit countries)
well in advance of the proposed
shipment date so that no unnecessary
delays are encountered.
2. Exemptions From the Definition of
Solid Waste
  Current RCRA regulations subject
recyclable materials to controls under
Subtitle C of RCRA if they meet the
definition of solid waste1S and are
identified or listed as hazardous. The
determination of whether a recyclable
material is a soh'd waste, and potentially
a hazardous waste, depends on the
secondary material and the recycling
activity [see 50 FR 614 (Jan. 4,1985) and
40 CFR 261.2 for further discussion and
requirements).
  There is a relatively narrow set of
(large volume) hazardous secondary
materials that, when recycled, are not
defined as solid wastes (e.g., off-
specification commercial chemicals that
are reclaimed). Therefore, these
materials are also not hazardous wastes
when recycled, and are therefore not
subject to RCRA export/import
requirements. Potential notifiers of
transfrontier movements of such
materials should keep in mind they bear
the burden of demonstrating that such
materials are exempt from the definition
 of solid waste under 40 CFR 261.2 [see
 40 CFR 261.2(f)]. Notifiers must
 therefore maintain documentation that
 can substantiate their claims, consistent
 with the regulations at 40 CFR 261.2(f).
   15 Under Subtitle C of RCRA, EPA authority is
 limited to the regulation of "hazardous waste."
 However, to be regulated as a hazardous waste, a
 material must first be a "solid waste." Section
 1004(27) of RCRA defines solid waste to include
 any garbage, refuse, sludge and other discarded
 material [see RCRA § 1004(8)]. A central element of
 this definition is that wastes are "discarded." EPA
 retains considerable discretion to define whether
 materials being recycled can be considered to be
 "discarded"  [see American Mining Congress v. EPA,
 907 F.2d 1179,1185-87 (D.C. Cir. 1990); and
 American Petroleum Institute v. EPA, 906 F.2d 729
 at 740-42 (D.C. Cir. 1990)].
3. Applicability to Hazardous Waste
Subject to Special Recycling Standards
  EPA's regulatory definition of
"hazardous waste" includes solid
wastes that are listed as hazardous
waste or that exhibit a characteristic of
ignitability, corrosivity, reactivity, or
toxicity. However, there is a very small
number of "hazardous wastes" that
EPA, for various reasons, has
conditionally exempted in part from
domestic regulation. Because certain of
these wastes are also not subject to
Federal hazardous waste manifest
controls, including but not limited to
Federal manifest controls, EPA does not
consider these wastes to be hazardous
under U.S. national procedures;
therefore, these wastes are not subject to
the requirements set forth today. Such
recyclable wastes are discussed briefly
below, hi order to determine whether a
particular waste in fact qualifies for
special recycling consideration,
interested persons will need to consult
the appropriate RCRA regulations.
  a. Scrap Metal. EPA has determined
that scrap metal is exempt from
regulation as a hazardous waste under
Subtitle C when recycled [see 40 CFR
261.6(a)(3)(iii); 50 FR 624 Jan. 4,1985].
Because scrap metal is also exempt from
Federal manifest requirements, it is not
considered hazardous under U.S.
national procedures. Additionally, scrap
metal is on the OECD green list as a
non-hazardous waste.
  b. Lead-Acid Batteries.  Persons who
generate, transport, or collect whole
spent lead-acid batteries for reclamation
are not subject to the Federal manifest
requirements. Since spent lead-acid
batteries being reclaimed are exempt
from Federal manifest requirements,
they are not considered hazardous
under U.S. national procedures [see 40
CFR 266.80, 261.6(a)(2)(iv)]. Thus,
persons exporting whole  spent lead-acid
batteries for reclamation are not subject
to today's export/import requirements.
However, they may be required to notify
the importing country of their intention
to export lead-acid batteries, pursuant to
contracts they execute  with foreign
consignees, because lead-acid batteries
are found on the amber list and are
considered to be hazardous under the
national procedures of many OECD
countries. Additional requirements may
also apply per contracts with foreign
consignees.
4. Wastes Excluded Under 40 CFR 261.4
   Many wastes listed in 40 CFR 261.4
 are excluded from some or all hazardous
 waste controls. Because some of these
 wastes are not defined as solid waste
 [see 40 CFR 261.4(a)], they cannot be

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    The solid wastes that are excluded
  under 40 CFR 261.4(b) from the
  definition of hazardous waste include
  the following wastes listed below.
  Persons interested in determining
  whether a particular waste is excluded
  from the definition of hazardous waste
  will need to consult 40 CFR 261.4(b)
  directly.
  —Household waste;I6
  —Agricultural crop wastes and manures
    returned to soil as fertilizer;
  —Mining overburden returned to the
    mine site;
  —Fly ash waste, bottom ash waste, and
    flue gas emission control waste,
    generated primarily from the
    combustion of coal or other fossil
    fuels except as provided in 40 CFR
    266.12;
  —Drilling fluids, produced waters, and
    other wastes associated with the
    exploration, development, or
    production of crude oil, natural gas,
    or geothermal energy;
 —Certain waste streams that exhibit the
    characteristic of hazardous waste only
    for chromium and that were generated
   by a process using nearly exclusively
   trivalent chromium in a non-oxidizing
   process such as certain leather
   tanning wastes, and wastewater
   treatment sludges from the production
   of TiO2 pigment using chromium-
   bearing ores by the chloride process;
 —Certain solid wastes from the
   extraction, beneficiation, and
   processing of ores and minerals
   except as provided in 40 CFR 266.12;
 —Cement kiln dust except as provided
   in 40 CFR 266.12;
 —Under certain circumstances, solid
   waste that consists of discarded wood
   products that fail the toxicity
   characteristic test solely for arsenic
   and are not hazardous for any other
   reason;
 —Petroleum-contaminated media
   resulting from an underground storage
   tank undergoing corrective action;
 —Used chlorofluorocarbon refrigerants
   from totally enclosed heat transfer
   equipment destined for reclamation;
 —Samples of solid waste, water, soil, or
   air, which are collected for the sole
   purpose of testing to determine their
   characteristics or composition; and
  I6Note that household waste and ash from
incineration of household waste appear on the
amber list and may, therefore, be subject to OECD
procedures outside of the United States. Household
waste will be subject to export controls once EPA
obtains new statutory authority for exports and
imports of waste. In addition, the U.S. Supreme
Court has ruled that ash from the incineration of
municipal solid waste that exhibits a characteristic
of hazardous waste must be managed as hazardous
waste. Such characteristically hazardous MSW ash
will be subject to Amber controls when exported.
  —Certain samples collected for the
    purposes of conducting treatability
    testing and analysis.

  5. Hazardous Waste Exempted Under 40
  CFR 261.5
    Under 40 CFR 261.5, hazardous
  wastes generated by conditionally
  exempt small quantity generators
  (CESQGs) (i.e., generators of no more
  than 100 kilograms per calendar month)
  are exempt from Subtitle C
  requirements, including manifesting,
  provided such generators comply with
  the requirements in 40 CFR 261.5. Thus,
  hazardous waste generated by a CESQG
  or collected from CESQGs is not subject
  to today's rule. These exempt wastes
  may, however, be subject to controls
  imposed by other OECD countries, if
  those countries consider the wastes to
  be hazardous.

  6. Applicability to Universal Wastes
   Today's rule applies to universal
  wastes as defined in 40 CFR 273 or by
  State requirements analogous to Part
  273. Universal wastes are defined as
 hazardous wastes, but are subject to
 streamlined management requirements
 for collection, accumulation and
 transportation. For instance, universal
 wastes are not subject to Federal
 manifesting requirements. Universal
 wastes exported to non-OECD countries
 are, however, subject to certain existing
 export regulations found in 40 CFR part
 262 Subpart E. Today's rule amends the
 export sections of 40 CFR part 273 to
 clarify that universal wastes exported to
 designated OECD countries for purposes
 of recovery are not subject to 40 CFR
 273.20, 273.40, 273.56, but are instead
 subject to 40 CFR part 262, Subpart H
 of today's rule. Furthermore, today's
 rule amends the import section of 40
 CFR part 273 to clarify that universal
 wastes imported from designated OECD
 countries for purposes of recovery are
 subject to 40 CFR 273.70 in addition to
 40 CFR part 262, Subpart H of today's
 rule.

 7. Non-RCRA Wastes and Other
 Regulatory Regimes
  There are other wastes on the OECD
 lists that may or may not be regulated
 under RCRA in the U.S., but that are
 controlled under other statutes. Such
 wastes may include PCBs, asbestos, and
 some chlorinated dioxins and
 chlorinated furans.17 Because these
 materials themselves are not hazardous
 wastes as defined by RCRA, in most
 cases, they are not subject to today's
  17 Some dioxin wastes are included in listed
RCRA hazardous waste from non-specific sources,
hazardous waste numbers F020, F021, F022, F023,
F026, and F027 [see 40 CFR 261.31(a)].
  requirements (although other OECD
  countries may subject them to controls).
  If, however, PCBs, asbestos, chlorinated
  dioxins, or chlorinated furans are
  constituents in a waste or waste mixture
  that is a RCRA listed or characteristic
  hazardous waste that is subject to
  Federal manifest requirements under
  RCRA, these wastes are subject to all
  applicable export and import
  requirements under RCRA, including
  today's regulations. (As previously
  noted, EPA may, in the future, identify
  wastes under other statutes that are
  subject to the OECD Decision).
   The Toxic Substances Control Act
  (TSCA) generally addresses the
  regulation of materials containing PCBs
  [see 15 U.S.C. §6(e)(2)(A)]. EPA
  proposed a rule on December 6,1994
  (59 FR 62788) which addressed imports
  and exports of PCBs. EPA plans to
  promulgate final rules in the near
  future.
   Potential exporters of these wastes
 may consider contacting the government
 of the specific OECD country for
 clarification as to requirements
 associated with a particular waste type
 before planning the waste shipment
 because other countries also may have
 restrictions on the import or export of
 such wastes.

 C. OECD Waste Lists Incorporated by
 Reference

   The OECD Green List of Wastes
 (revised May 1994), Amber List of
 Wastes and Red List of Wastes (both
 revised May 1993) as set forth in
 Appendix 3, Appendix 4 and Appendix
 5, respectively, to the OECD Council
 Decision C(92)39/FINAL (Concerning
 the Control of Transfrontier Movements
 of Wastes Destined for Recovery
 Operations) were approved by the
 Director of the Federal Register to be
 incorporated by reference in today's rule
 on July 11,1996. These materials are
 incorporated as they exist on the date of
 the approval and a notice of any change
 in these materials will be published in
 the Federal Register. The materials are
 available for inspection at: the Office of
 the Federal Register, 800 North Capitol
 Street, NW, suite 700, Washington, DC;
 the U.S. Environmental Protection
 Agency, 401 M Street, SW, Room
 M2616, Washington, DC; the
 Organization for Economic Cooperation
 and Development, Environment
 Directorate, 2 rue Andre Pascal, 75775
Paris Cedex 16, France; and, on the
Internet (see instructions for accessing
these materials in electronic format in
the SUPPLEMENTARY INFORMATION section
of the preamble to today's rule).

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             Federal Register / Vol. 61, No. 72 / Friday, April  12,  1996 / Rules and Regulations
                                                                    16307
V. Applicability in Authorized States
  In the same way that existing RCRA
export requirements of 40 CFR 262
Subpart E are administered exclusively
by EPA and not by States, States may
not receive authorization from EPA to
control exports of hazardous waste
subject to Subpart H. This is because the
exercise of foreign relations and
international commerce powers is
reserved to the Federal government
under the Constitution. In the Agency's
view, foreign policy interests and
exporter interests in expeditious
processing are better served by EPA's
retention of these functions. In addition,
concentrating these responsibilities
within EPA will provide the U.S
Department of State with a single
contact point regarding the transfrontier
waste program and will better allow for
uniformity and expeditious
transmission of information between the
United  States and foreign countries.
   States do, however, play a key role in
providing EPA with information on
.whether U.S. facilities designated to
receive hazardous waste imports are
authorized to manage specific wastes
and in ensuring facility compliance
with all applicable environmental laws
 and regulations. Additionally, EPA may
 authorize States to receive facility
 import notifications required under 40
 CFR 264.12(a) and 265.12(a).
   For the purposes of the transfrontier
 movement of wastes under current
 RCRA requirements (and by extension,
 under today's rule), only those wastes
 identified or listed under the Federal
 program that are subject to Federal
 manifesting requirements are subject to
 the U.S. requirements for exporting and
 importing. Thus, hazardous wastes
 identified or listed by a State under
 State law that are not included in the
 Federal hazardous waste universe (i.e.,
 where the State program is broader in
 scope than the federal hazardous waste
 program) will not be subject to today's
 export and import regulations.

 VI. Relationship to U.S. Bilateral
 Agreements
    The U.S. has existing bilateral
 agreements that address transboundary
 movements of hazardous waste between
 the U.S. and Mexico and between the
 U.S. and Canada. Mexico became an
 OECD member in June 1994. Today's
 rule implementing the provisions of the
 Decision will not apply to imports or
  exports of hazardous waste between the
  U.S. and Mexico; the provisions of the
  bilateral agreement with Mexico
  continue to apply as well as EPA's _
  current export and import regulations,
  such as those in 40 CFR 262, Subparts
E and F, and 40 CFR 264.12(a) and
265.12(a).
  Canada is a member of the OECD and
has adopted the Decision. Shipments of
hazardous waste to and from Canada,
both for the purposes of recycling and
final disposal, will continue to be
subject to the provisions of the U.S./
Canada bilateral agreement and to EPA's
current import and export regulations.
After the Agency has more experience
with implementing today's rule for
transfrontier shipments between the
U.S. and other OECD countries, EPA
may revisit this Decision. If so, EPA will
publish a notice in the Federal Register
and allow the regulated community
adequate time to comply with any new
requirements imposed.
VH. Relationship to Other Programs
   Under Section 13 of the Toxic
Substances Control Act (TSCA),
importers of "chemical substances and
mixtures" must certify compliance with
TSCA at the point of entry into the
United States (see 40 CFR 707.20). Some
chemical substances or mixtures as
defined by TSCA also can be hazardous
wastes as defined by RCRA. Therefore,
if a hazardous waste as defined by
RCRA meets the definition of a chemical
 substance or mixture under TSCA,
 importers18 must certify compliance
 with TSCA in accordance with 40 CFR
 707.20. This TSCA compliance
 certification provision requires all
 importers  of chemical substances and
 mixtures to certify that their shipments
 are in compliance with all applicable
 rules or orders under TSCA [see 40 CFR
 707.20(b)(2)(i)]. Compliance with TSCA
 may require, among other things, that
 the substances are not banned from
 importation, that they are listed in the
 TSCA Inventory of chemical substances,
 and that the substances are not being
 imported for a "significant new use"
 without first providing notice to EPA at
 least 90 days prior to the import. If the
 shipment (including a hazardous waste)
 contains no material covered by TSCA
 (e.g., pesticides), then the importer must
 certify that the substances in the
 shipment are not subject to TSCA [see
 40 CFR 707.20(b)(2)(ii)].
    U.S. Customs' regulations for
 importing require that the importer of
 record or a Customs broker be
 responsible for filing entry
  documentation.19 The importer of
record may be a foreign entity, provided
that, in the state or territory where the
port of entry is located, there is a
resident who is authorized to accept
service of process against such foreign
entity. Such resident must file a bond
having a resident corporation surety to
secure payment of any increased or
additional duties that may be found
due.
    . Future Rulemaking
  This Decision is a negotiated
international agreement that provides
nations with some limited flexibility to
implement the Decision within their
unique domestic waste management
schemes. As such, certain definitions
and procedures in the Decision are less
explicit than current RCRA regulations.
It may be appropriate in the future to
revise today's regulations to address
additional elements of the Decision.
Some of the elements of the Decision
that the Agency may address in future
regulations include:
— Notification and tracking documents.
  The OECD/WMPG developed
  recommended, standardized
  notification and tracking documents
  for shipments of amber-list and red-
  list wastes. Once the notification and
  tracking documents have been in use,
  they may need to be modified      L
   according to experience by the
  member countries. When use of the
   forms becomes mandatory by the
   OECD, the Agency will amend its
   regulations to require their use.
 — Pre-approval of recovery facilities.
   The Decision allows importing
   countries to pre-approve recovery
   facilities. The Agency has not yet
   decided whether to pre-approve
   recovery facilities and, if so, whether
   only RCRA permitted or interim
   status recovery facilities should
   qualify for pre-approval or whether
   pre-approval criteria can feasibly be
   established for recovery facilities
   currently exempt from RCRA permit
   or technical standards. The Agency
   has already received a proposal for
   such criteria from the International
   Precious Metals Institute (IPMI).
   DPMI's proposal is included in the
   public docket for today's rule.
  — Recognized traders. Consistent with
   the Decision, today's regulations set
   forth certain responsibilities for
   is Under TSCA, an importer is considered the
  "manufacturer." The term "manufacture" is defined
  in § 3(7) of the act as: " *  * * to import into the
  Customs territory of the United States (as defined
  in general headnote 2 of the Tariff Schedules of the
  United States) * *  *."
   "Under Federal regulations (19 CFR 111), a
  Customs broker is an individual, a partnership, or
  an association or corporation who is licensed under
  Part 111 to transact customs business on behalf of
  others (19 CFR 111.1). Among other requirements,
  an individual seeking a broker's license must be a
  U.S. citizen (19 CFR lll.ll(a)). For a partnership,
  association, or corporation to act as a Customs
  broker, at least one member or officer must be a
  licensed Customs broker, which requires U.S.
  citizenship [19 CFR lll.ll(b) and (c)].

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 16308      Federal Register / Vol. 61, No.  72 / Friday, April 12, 1996 / Rules and Regulations
   recognized traders of hazardous
   wastes destined for recovery within
   the OECD. The Agency will be further
   assessing the relationship of
   recognized traders, as defined in
   today's regulations, to waste brokers
   and whether additional regulations
   are needed to clarify the scope of
   coverage and associated
   responsibilities.
   As the Agency gains experience
 implementing today's regulations, it
 may identify additional issues requiring
 further regulatory action.

 EX. Regulatory Impact Analysis

 A. Executive Order 12866
   Under Executive Order 12866 (58 FR
 51735 October 4,1993), the Agency
 must determine whether a regulatory
 action is "significant" and therefore
 subject to OMB review and the
 requirements of the Executive Order.
 The Order defines "significant
 regulatory action" as one that is likely
 to result in a rule that may:
   (1) Have an annual effect on the
 economy of $100 million or more or
 adversely affect in a material way the
 economy, a sector of the economy,
 productivity, competition, jobs, the
 environment, public health or safety, or
 State, local, or tribal governments or
 communities;
   (2) Create a serious inconsistency or
 otherwise interfere with an action taken
 or planned by another agency;
   (3) Materially alter the budgetary
 impact of entitlements, grants, user fees,
 or loan programs or the rights and
 obligations of recipients thereof; or
  (4) Raise novel legal or policy issues
 arising out of legal mandates, the
 President's priorities, or the principles
 set forth in the Executive Order.
  EPA has determined that this rule is
not a "significant regulatory action"
under the terms of Executive Order
 12866 and is therefore not subject to
OMB review. This rule raises no novel
legal or policy issues. It simply
implements the Decision which the U.S.
has already supported. The rule
promulgates regulatory language that
differs from the language of the Decision
in only a minimal, nonsubstantive
manner, in order to conform this rule to
existing RCRA rules. The rule's scope is
not broader than that of the Decision.
The only costs of this rule are those
associated with the additional
notification and tracking costs. Analysis
in the ICR (Information Collection
Request) shows that the annual burden
for U.S. exporters and importers will
total less than $225,000. This rule will
not cause any inconsistencies or
interfere with other Agencies' actions,
 nor materially alter the budgetary
 impact of entitlements, grants, user fees,
 or loan programs or the rights and
 obligations of recipients thereof.
   While EPA recognizes that some
 companies may experience economic
 dislocation if there are significant delays
 in processing notifications and
 consents, the Agency believes that
 judicious planning on the part of these
 companies could eliminate or lessen the
 impact of such delays, if any. Moreover,
 the Agency again emphasizes that the
 Decision imposed these new
 notification and consent requirements.
 EPA is merely codifying those
 requirements in this rule.

 B. Regulatory Flexibility Act
   Pursuant to the Regulatory Flexibility
 Act, 5 U.S.C. 601 et seq., a Regulatory
 Flexibility Analysis must be performed
 if the regulatory requirements have a
 significant impact on a substantial
 number of small entities. No Regulatory
 Flexibility Analysis is required where
 the head of an agency certifies that the
 rule will not have a significant
 economic impact on a substantial
 number of small entities.
   Since the enactment of RCRA Section
 3017 and the 1986 regulations at 40 CFR
 part 262, subpart E, generators subject to
 the manifesting requirements for exports
 of hazardous waste have been required
 to comply with notification and consent
 requirements as a condition of exporting
 such wastes. Generators who generate
 less than 100 kgs/mo (conditionally
 exempt small quantity generators) were
 not required to comply with these
 requirements because they are not
 subject to the manifesting requirements.
 Conditionally exempt small quantity
 generators are not subject to any of the
 requirements of today's rule; thus, the
 universe of regulated individuals is not
 changing.
  EPA does not believe this rule will
 increase burdens for any small entities
 that are not already exempt as small
 quantity generators. Today's rule is not
 expected to have a significant economic
 impact on a substantial number of small
 entities and does not require a
 Regulatory Flexibility Analysis.
 Therefore, pursuant to 5 U.S.C. 601(b),
I certify that this regulation will not
have a significant economic impact on
a substantial number of small entities.

 C. Paperwork Reduction Act

 I. Display of OMB Control Numbers
  EPA is amending the table of
currently approved information
collection request (ICR) control numbers
issued by OMB for various regulations.
This amendment updates the table to
 accurately display those information
 requirements contained in this final
 rule. This display of the OMB control
 number and its subsequent codification
 in the Code of Federal Regulations
 satisfies the requirements of the
 Paperwork Reduction Act (44 USC 3501
 et seq.) and OMB's implementing
 regulations at 5 CFR 1320.
   EPA finds that there is  "good cause"
 under section 553(b)(B) of the
 Administrative Procedure Act (5 U.S.C.
 553(b)(B)) to amend this table without
 prior notice and comment. Due to the
 technical nature of the table, further
 notice and comment would be
 unnecessary. For the same reasons, EPA
 also finds that there is good cause under
 5 U.S.C. 553(d)(3).
 2. Burden Statement
   The information collection
 requirements in this rule  have been
 approved by the Office of Management
 and Budget (OMB) under the Paperwork
 Reduction Act, 44 U.S.C.  3501 et seq.
 and have been assigned control number
 2050-0143.
   This collection of information has an
 estimated reporting burden averaging
 from 5.74 hours per year per exporter to
 2.99 hours per year per importer. This
 includes time for reviewing regulations/
 instructions, searching existing data
 sources, gathering and maintaining the
 data needed, and completing and
 reviewing the collection of information.
   Send  comments regarding the burden
 estimate or any other aspect of this
 collection of information, including
 suggestions for reducing this burden, to
 Chief, Information Policy  Branch (2136);
 U.S. Environmental Protection Agency;
 401 M Street, S.W.; Washington, DC
 20460; and to the Office of Information
 and Regulatory Affairs, Office of
 Management and Budget,  Washington,
 DC 20503, marked "Attention: Desk
 Officer for EPA."
 List of Subjects

 40 CFR Part 9
  Environmental protection,
 Information collection, OMB approval,
Paperwork reduction.
 40 CFR Part 260
  Administrative practice and
procedure, Confidential business
information, Hazardous waste.
 40 CFR Part 261
  Hazardous waste, Recycling,
Reporting and recordkeeping.
 40 CFR Part 262
  Exports, Hazardous waste, Imports,
Incorporation by reference, International
agreements, Labeling, Manifest,

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            Federal Register  /  Vol.  61, No. 72 / Friday, April  12,  1996 / Rules and Regulations
                                                                              16309
Packaging and containers, Recycling,
Reporting and recordkeeping
requirements.

40 CFR Part 263

  Export, Hazardous waste, Hazardous
waste transportation, Import,
Manifesting, Tracking documents.

40 CFR Part 264
  Hazardous waste, Imports, Manifest,
Recordkeeping, Recycling.

40 CFR Part 265

  Hazardous waste, Imports, Manifest,
Recordkeeping requirements, Recycling.

40 CFR Part 266

  Precious metals, Recycling.

40 CFR Part 273

  Hazardous waste, Recycling,
Universal waste.
  Dated: November 29,1995.

Carol M. Browner,
Administrator.
  For the reasons set out in the
preamble, title 40, chapter 1, subchapter
I of the Code of Federal Regulations, is
amended as set forth below.

PART 9—OMB APPROVALS UNDER
THE PAPERWORK REDUCTION ACT

   1. In Part 9:
  a. The  authority citation for part 9
continues to read as follows:
  Authority: 7 U.S.C. 135 etseq., 136-136y;
15 U.S.C.  2001, 2003, 2005, 2006, 2601-2671;
21 U.S.C.  331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251  etseq., 1311,1313d, 1314,1321,
1326,1330,1344,1345 (d) and (e), 1361; E.O.
11735, 38 FR 21243, 3 CFR, 1971-1975
Comp., p. 973; 42 U.S.C. 241, 242b, 243, 246,
300f, 300g-5, 300g-6, 300J-1, 300J-2, 300J-
3, 300J-4, 300}-9,1857 etseq., 6901-6992k,
 7401-7671q, 7542, 9601-9657,11023,11048.

   b. Section 9.1 is amended by adding
a new entry and heading in numerical
 order to the table to read as follows:

§ 9.1  OMB approvals under the Paperwork
 Reduction Act
             Authority: 42 U.S.C. 6905, 6912(a), 6921-
           6927, 6930,6934, 6935,6937,6938, 6939,
           and 6974.

             b. Section 260.2(b) is revised to read
           as follows:

           § 260.2  Availability of information;
           confidentiality of information.
      40 CFR citation
OMB control
    No.
 Public Information:
   Part 2, subpart B
  2050-0143
 PART 260—HAZARDOUS WASTE
 MANAGEMENT SYSTEM: GENERAL

   2. In part 260:
   a. The authority citation continues to
 read as follows:
  (b) Any person who submits
information to EPA in accordance with
parts 260 through 266 and 268 of this
chapter may assert a claim of business
confidentiality covering part or all of
that information by following the
procedures set forth in § 2.203(b) of this
chapter. Information covered by such a
claim will be disclosed by EPA only to
the extent, and by means of the
procedures, set forth in part 2, subpart
B, of this chapter except that
information required by § 262.53(a) and
§ 262.83 that is submitted in a
notification of intent to export a
hazardous waste will be provided to the
U.S. Department of State and the
appropriate authorities in the transit
and receiving or importing countries
regardless of any claims of
confidentiality. However, if no such
claim accompanies the information
when it is received by EPA, it may be
made available to the public without
further notice to the person submitting
it.

PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE

   3. In 40 CFR part 261:
   a. The authority citation for part 261
continues to read as follows:
  Authority: 42 U.S.C. 6905,6912(a), 6921,
6922, and 6938.

   b. Section 261.6 is amended by
adding paragraph (a)(5) to read as
follows:

§ 261.6  Requirements for recyclable
materials.
   (a)*  *  *
   (5) Hazardous waste that is exported
to or imported from designated member
countries of the Organization for
Economic Cooperation and
Development (OECD) (as defined in
§ 262.58(a)(l)) for purpose of recovery is
subject to the requirements of 40 CFR
part 262, subpart H, if it is subject to
either  the Federal manifesting
requirements of 40 CFR Part 262, to the
universal waste management standards
of 40 CFR Part 273, or to State
requirements analogous to 40 CFR Part
 273.
PART 262—STANDARDS APPLICABLE
TO GENERATORS OF HAZARDOUS
WASTE
  4. The authority citation for part 262
is revised to read as follows:
  Authority: 42 U.S.C 6906, 6912, 6922,
6923, 6925, 6937, and 6938.
  5. Section 262.10 is amended by
redesignating paragraphs (d), (e), (f), and
(g) as (e), (f), (g), and (h) respectively
and adding a new paragraph (d) to read
as follows:

§262.10 Purpose, scope, and applicability.
*****
  (d) Any person who exports or
imports hazardous waste subject to the
Federal manifesting requirements of
part 262, or subject to the universal
waste management standards of 40 CFR
Part 273, or subject to State
requirements analogous to 40 CFR Part
273, to or  from the countries listed in
§ 262.58(a)(l) for recovery must comply
with subpart H of this part.
*****
  6. Section 262.53(b) is revised to read
as follows:
§262.53 Notification of intent to export
*****
   (b) Notifications submitted by mail
should be sent to the following mailing
address: Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460.
Hand-delivered notifications should be
sent to: Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting, and Data Division (2222A),
Environmental Protection Agency, Ariel
Rios Bldg., 12th St. and Pennsylvania
Ave., NW., Washington, DC. In both
cases, the following shall be
 prominently displayed on the front of
the envelope: "Attention: Notification of
 Intent to Export."
 *****
   7. Section 262.56(b) is revised to read
 as follows:

 § 262.56   Annual reports.
 *****
   (b) Annual reports submitted by mail
 should be sent to the following mailing
 address: Office of Enforcement and
 Compliance Assurance, Office of
 Compliance, Enforcement Planning,
 Targeting, and Data Division (2222A),
 Environmental Protection Agency, 401
 M St., SW., Washington, DC 20460.
 Hand-delivered reports should be sent
 to: Office of Enforcement and
 Compliance Assurance, Office of

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  Compliance, Enforcement Planning,
  Targeting, and Data Division (2222A),
  Environmental Protection Agency, Ariel
  Rios Bldg., 12th St. and Pennsylvania
  Ave., NW., Washington, DC.
    8. Section 262.58 is amended by
  adding text to read as follows:

  §262.58  International agreements.

    (a) Any person who exports or
  imports hazardous waste subject to
  Federal manifest requirements of Part
  262, or subject to the universal waste
  management standards of 40 CFR Part
  273, or subject to State requirements
  analogous to 40 CFR Part 273, to or from
  designated member countries of the
  Organization for Economic Cooperation
  and Development (OECD) as defined in
  paragraph (a)(l) of this section for
  purposes of recovery is subject to
  Subpart H of this part. The requirements
  of Subparts E and F do not apply.
   (1) For the purposes of this Subpart,
  the designated OECD countries consist
  of Australia, Austria, Belgium,
  Denmark, Finland, France, Germany,
  Greece, Iceland, Ireland, Italy, Japan,
 Luxembourg, Netherlands, New
 Zealand, Norway, Portugal, Spain,
 Sweden, Switzerland, Turkey, United
 Kingdom, and the United States.
   (2) For the purposes of this Subpart,
 Canada and Mexico are considered
 OECD member countries only for the
 purpose of transit.
   (b) Any person who exports
 hazardous waste to or imports
 hazardous waste from: a designated
 OECD member country for purposes
 other than recovery (e.g., incineration,
 disposal), Mexico (for any purpose), or
 Canada (for any purpose) remains
 subject to the requirements of subparts
 E and F of this part.
  9. Part 262 is amended by adding
 subpart H consisting of §§ 262.80
 through 262.89 to read as follows:

 Subpart H—Transfrontier Shipments of
 Hazardous Waste for Recovery within the
 OECD
 Sec.
 262.80  Applicability.
 262.81  Definitions.
 262.82  General conditions.
 262.83  Notification and consent.
 262.84  Tracking document.
 262.85  Contracts.
 262.86  Provisions relating to recognized
   traders.
 262.87  Reporting and recordkeeping.
 262.88  Pre-approval for U.S. Recovery
   Facilities (Reserved).
262.89  OECD Waste Lists.
  Subpart H—Transfrontier Shipments of
  Hazardous Waste for Recovery within the
  OECD

  §262.80 Applicability.
    (a) The requirements of this subpart
  apply to imports and exports of wastes
  that are considered hazardous under
  U.S. national procedures and are
  destined for recovery operations in the
  countries listed in § 262.58(a)(l). A
  waste is considered hazardous under
  U.S. national procedures if it meets the
  Federal definition of hazardous waste in
  40 CFR 261.3 and it is subject to either
  the Federal manifesting requirements at
  40 CFR Part 262, Subpart B, to the
  universal waste management standards
  of 40 CFR Part 273, or to State
  requirements analogous to 40 CFR Part
  273.
    (b) Any person (notifier, consignee, or
  recovery facility operator) who mixes
  two or more wastes (including
  hazardous and non-hazardous wastes)
  or otherwise subjects two or more
  wastes (including hazardous and 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 notifier duties, if
 applicable, under this subpart.

 §262.81  Definitions.
   The following definitions apply to
 this subpart.
   (a) Competent authorities means the
 regulatory authorities of concerned
 countries having jurisdiction  over
 transfrontier movements of wastes
 destined for recovery operations.
   (b) Concerned countries means the
 exporting and importing OECD member
 countries and  any OECD member
 countries of transit.
   (c) Consignee means the person to
 whom possession or other form of legal
 control of the waste is assigned at the
 time the waste is received in the
 importing country.
   (d) Country of transit means any
 designated OECD country in
 § 262.58(a)(l) and (a)(2) other  than the
 exporting or importing country across
 which a transfrontier movement of
 wastes is planned or takes place.
  (e) Exporting country means any
 designated OECD member country in
 § 262.58(a)(l) from which a transfrontier
movement of wastes is planned or has
commenced.
  (f) Importing country means any
designated OECD country in
§ 262.58(a)(l) to which a transfrontier
movement of wastes is planned or takes
place for the purpose of submitting the
wastes to recovery operations therein.
    (g) Notifier means the person under
  the jurisdiction of the exporting country
  who has, or will have at the time the
  planned transfrontier movement
  commences, possession or other forms
  of legal control of the wastes and who
  proposes their transfrontier movement
  for the ultimate purpose of submitting
  them to recovery operations. When the
  United States (U.S.) is the exporting
  country, notifier is interpreted to mean
  a person domiciled in the U.S.
    (h) OECD area means all land or
  marine areas under the national
  jurisdiction of any designated OECD
  member country in § 262.58. When the
  regulations refer to shipments to or from
  an OECD country, this means OECD
  area.
    (i) Recognized trader means a person
  who, with appropriate authorization of
  concerned countries, acts in the role of
  principal to purchase and subsequently
  sell wastes; this person has legal control
  of such wastes from time of purchase to
 time of sale; such a person may act to
 arrange and facilitate transfrontier
 movements of wastes destined for
 recovery operations.
   (j) Recovery facility means an entity
 which, under applicable domestic law,
 is operating or is authorized to operate
 in  the importing country to receive
 wastes and to perform recovery
 operations on them.
  (k) Recovery operations means
 activities leading to resource recovery,
 recycling, reclamation, direct re-use or
 alternative uses as listed in Table 2.B of
 the Annex of OECD Council Decision
 C(88)90(Final) of 27 May 1988,
 (available from the Environmental
 Protection Agency, RCRA Information
 Center (RIC), 1235 Jefferson-Davis
 Highway, first floor, Arlington, VA
 22203 (Docket # F-94-ffiHF-FFFFF) and
 the Organisation for Economic Co-
 operation and Development,
 Environment Direcorate, 2 rue Andre
 Pascal, 75775 Paris Cedex 16, France)
 which include:
 Rl   Use  as a fuel (other than in direct
    incineration) or other means to
    generate energy
     Solvent reclamation/regeneration
     Recycling/reclamation of organic
    substances which are not used as
    solvents
     Recycling/reclamation of metals
    and metal compounds
R5   Recycling/reclamation of other
    inorganic materials
    Regeneration of acids or bases
    Recovery of components used for
    pollution control
    Recovery of components from
    catalysts
    Used oil re-refining or other reuses
    of previously used oil
R2
R3
R4
R6
R7

R8

R9

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.-^ i v.,  «1. No.  72 / Friday. April 12. 1996_nRules^and Regulations
                                                                                                           16311
,	—	
RIO  Land treatment resulting in
    benefit to agriculture or ecological
    improvement
Rl 1  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 Rl-RH
R13  Accumulation of material
    intended for any operation in Table
    2.B
  (1) Transfrontier movement means any
 shipment of wastes destined for
 recovery operations from an area under
 the national jurisdiction of one OECD
 member country to an area under the
 national jurisdiction of another OECD
 member country.
 §262.82  General conditions.
   (a) Scope. The level of control for
 exports and imports of waste is
 indicated by assignment of the waste to
 a green, amber, or red list and by U.£>.
 national procedures as defined in
 § 262.80(a). The green, amber, and red
 lists are incorporated by reference in
  § 262.89 (e).                     ...
    (1) Wastes on the green list are subject
  to existing controls normally applied to
  commercial transactions, except as
  provided below:
    (i) Green-list wastes that are
  considered hazardous under U.S.
  national procedures are subject to
  amber-list controls.
    (ii) Green-list waste that are
   sufficiently contaminated or mixed with
   amber-list wastes, such that the waste or
   waste mixture is considered hazardous
   under U.S. national procedures, are
   subject to amber-list controls.
     (iii) Green-list wastes that are
   sufficiently contaminated or mixed with
   other wastes subject to red-list controls
   such that the waste or waste mixture is
   considered hazardous under U.S.
   national procedures must be handled in
   accordance with the red-list controls.
     (2) Wastes on the amber list that are
   considered hazardous under U.S.
   national procedures as defined in
   § 262.80(a) are subject to the amber-list
   controls of this Subpart.
     (i) If amber-list wastes are sufficiently
    contaminated or mixed with other
    wastes subject to red-list controls such
    that the waste or waste mixture is
    considered hazardous under U.S.
    national procedures, the wastes must be
    handled in accordance with the red-list
    controls.
      (ii) [Reserved].
      (3) Wastes on the red list that are
    considered hazardous under U.S.
    national procedures as defined in
    § 262.80(a) are subject to the red-list
    controls of this subpart.
                   Note to paragraph (a)(3): Some wastes on
                 the amber or red lists are not listed or
                 otherwise identified as hazardous under
                 RCRA (e.g., polychlorinated biphenyls) and
                 therefore are not subject to the amber- or red-
                 list controls of this subpart. Regardless of the
                 status of the waste under RCRA, however,
                 other Federal environmental statutes (e.g.,
                 the Toxic Substances Control Act] may
                 restrict certain waste imports or exports.
                 Such restrictions continue to apply without
                 regard to this Subpart.
                    (4) Wastes not yet assigned to a list
                  are eligible for transfrontier movements,
                  as follows:                .
                    (i) If such wastes are considered
                  hazardous under U.S. national
                  procedures as denned in § 262.80(a),
                  these wastes are  subject to the red-list
                  controls; or                   ..   ,
                    (ii) If such wastes are not considered
                  hazardous under U.S. national
                  procedures as defined in § 262.80(a),
                  such wastes may move as though they
                  appeared on the green list.
                    (b) General conditions applicable to
                   transfrontier movements of hazardous

                     (1) The waste must be destined for
                   recovery operations at a facility that,
                   under applicable domestic law, is
                   operating or is authorized to operate in
                   the importing country;
                     (2)  The transfrontier movement must
                   be in compliance with applicable
                   international transport agreements; and
                     Note to paragraph (b)(2): These
                    international agreements include, but are not
                    limited to, the Chicago Convention (1944),
                    ADR (1957), ADNR (1970), MARPQL
                    Convention (1973/1978), SOLAS Convention
                    (1974), IMDG Code (1985), COTIF (1985), and
                    RID (1985).
                      (3) Any transit of waste through a
                    non-OECD member country must be
                    conducted in compliance with all
                    applicable international and national
                    laws and regulations.
                      (c) Provisions relating to re-export for
                    recovery to a third country.
                      (1) Re-export of wastes subject to the
                    amber-list control system from the U.S.,
                    as the importing country, to a third
                    country listed in § 262.58(a)(l) may
                    occur only after a notifier in the U.S.
                    provides notification to and obtains
                    consent of the competent authorities in
                    the third country, the original exporting
                     country, and new transit countries. The
                     notification must comply with the
                     notice and consent procedures in
                     § 262.83 for all concerned countries and
                     the original exporting country. The
                     competent authorities of the original
                     exporting country as well as the
                     competent authorities of all other
                     concerned countries have 30 days to
                     object to the proposed movement.
                        (i) The 30-day period begins once tne
                     competent authorities of both the initial
exporting country and new importing
country issue Acknowledgements of
Receipt of the notification.
  (ii) The transfrontier movement may
commence if no objection has been
lodged after the 30-day period has
passed or immediately after written
consent is received from all relevant
OECD importing and transit countries.
   (2) Re-export of waste subject to the
red-list control system from the original
importing country to a third country
listed in § 262.58(a)(l) may occur only
 following notification of the competent
 authorities of the third country, the
 original exporting country, and new
 transit countries by a notifier in the
 original importing country in
 accordance with § 262.83. The
 transfrontier movement may not
 proceed until receipt by the original
 importing country of written consent
 from the competent authorities of the
 third country, the original exporting
 country, and new transit countries.
    (3) In the case of re-export of amber
 or red-list wastes to a country other than
 those in § 262.58(a)(l), notification to
 and consent of the competent
  authorities of the original OECD
  member country of export and any
  OECD member countries of transit is
  required as specified in paragraphs
  (c)(l) and (c)(2) of this section in
  addition to compliance with all
  international agreements and
  arrangements to which the first
  importing OECD member country is a
  party and all applicable regulatory
   requirements for exports from the first
   importing country.
   § 262.83  Notification and consent
     (a) Applicability. Consent must be
   obtained from the competent authorities
   of the relevant OECD importing and
   transit countries prior to exporting
   hazardous waste destined for recovery
   operations subject to this Subpart.
   Hazardous wastes subject to amber-list
   controls are subject to the requirements
   of paragraph (b) of this section;
   hazardous wastes subject to red-list
    controls are subject to the requirements
    of paragraph (c) of this section; and
    wastes not identified on any list are
    subject to the requirements of paragraph
    (d) of this section.
      Cb) Amber-list wastes. The export from
    the U.S. of hazardous wastes as
    described in § 262.80(a) that appear on
    the amber list is prohibited unless the
    notification and consent requirements of
    paragraph (b)(l) or paragraph (b)(2) of
    this section are met.
      (1) Transactions requiring specific
    consent:                   ,
      (i) Notification. At least 45 days prior
    to commencement of the transfrontier

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16312      Federal Register / Vol.  61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
movement, the notifier must provide
written notification in English of the
proposed transfrontier movement to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protectipn Agency, 401 M St., SW.,
Washington, DC 20460, with the words
"Attention: OECD Export Notification"
prominently displayed on the envelope.
This notification must include all of the
information identified in paragraph (e)
of this section. In cases where wastes
having similar physical and chemical
characteristics, the same United Nations
classification, and the same RCRA waste
codes are to be sent periodically to the
same recovery facility by the same
notifier, the notifier may submit one
notification of intent to export these
wastes in multiple shipments during a
period of up to one year.
  (ii) Tacit consent. If no objection has
been lodged by any concerned country
(i.e., exporting, importing, or transit
countries) to a notification provided
pursuant to paragraph (b)(l)(i) of this
section within 30 days after the date of
issuance of the Acknowledgment of
Receipt of notification by the competent
authority of the importing country, the
transfrontier movement may commence.
Tacit consent expires one calendar year
after the close of the 30 day period;
renotification and renewal of all
consents is required for exports after
that date.
  (iii) Written consent. If the competent
authorities of all the relevant OECD
importing and transit countries provide
written consent in a period less than 30
days, the transfrontier movement may
commence immediately after all
necessary consents are received. Written
consent expires for each relevant OECD
importing and transit country one
calendar year after the date of that
country's consent unless otherwise
specified; renotification and renewal of
each expired consent is required for
exports after that date.
  (2) Shipments to facilities pre-
approved by the competent authorities
of the importing countries to accept
specific wastes for recovery:
  (i) The notifier must provide EPA the
information identified in paragraph (e)
of this section in English, at least 10
days in advance of commencing
shipment to a pre-approved facility. The
notification should indicate that the
recovery facility is pre-approved, and
may apply to a single specific shipment
or to multiple shipments as described in
paragraph (b)(l)(i) of this section. This
information must be sent to the Office
of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401M St., SW.,
Washington, DC 20460, with the words
"OECD Export Notification—Pre-
approved Facility" prominently
displayed on the envelope.
  (ii) Shipments may commence after
the notification required in paragraph
(b)(l)(i) of this section has been received
by the competent authorities of all
concerned countries, unless the notifier
has received information indicating that
the competent authorities of one or
more concerned countries objects to the
shipment.
  (c) Red-list wastes. The export from
the U.S. of hazardous wastes as
described in § 262.80(a) that appear on
the red list is prohibited unless notice
is given pursuant to paragraph (b)(l)(i)
of this section and the notifier receives
written consent from the importing
country and any transit countries  prior
to commencement of the transfrontier
movement.
  (d) Unlisted wastes. Wastes not
assigned to the green, amber, or red list
that are considered hazardous under
U.S.  national procedures as defined in
§ 262.80(a) are subject to the notification
and consent requirements established
for red-list wastes in accordance with
paragraph (c) of this section. Unlisted
wastes that are not considered
hazardous under U.S. national
procedures as defined in § 262.80(a) are
not subject to amber or red controls
when exported or imported.
  (e) Notification information.
Notifications submitted under this
section must include:
  (1) Serial number or other accepted
identifier of the notification form;
  (2) Notifier name and EPA
identification number (if applicable),
address, and telephone and telefax
numbers;
  (3) Importing recovery facility name,
address, telephone and telefax numbers,
and technologies employed;
  (4) Consignee name (if not the owner
or operator of the recovery facility)
address, and telephone and telefax
numbers; whether the consignee will
engage in waste exchange or storage
prior to delivering the waste to the final
recovery facility and identification of
recovery operations to be employed at
the final recovery facility;
  (5) Intended transporters and/or their
agents;
  (6) Country of export and relevant
competent authority, and point of
departure;
  (7) Countries of transit and relevant
competent authorities and points  of
entry and departure;
  (8) Country of import and relevant
competent authority, and point of entry;
  (9) Statement of whether the
notification is a single notification or a
general notification. If general, include
period of validity requested;
  (10) Date foreseen for commencement
of transfrontier movement;
  (11) Designation of waste type(s) from
the appropriate list (amber or red and
waste list code), descriptions of each
waste type, estimated total quantity of
each, RCRA waste code, and United
Nations number for each waste type;
and
  (12) Certification/Declaration signed
by the notifier that states:
  I certify that the above information is
complete and correct to the best of my
knowledge. I also certify that 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 transfrontier movement.
Name:  	
Signature:	
Date: 	
  Note to paragraph (e)(12): The U.S. does
not currently require financial assurance;
however, U.S. exporters may be asked by
other governments to provide and certify to
such assurance as a condition of obtaining
consent to a proposed movement.

§262.84 Tracking document
  (a) All U.S. parties subject to the
contract provisions of § 262.85 must
ensure that a tracking document
meeting the conditions of § 262.84(b)
accompanies each transfrontier
shipment of wastes subject to amber-list
or red-list controls from the initiation of
the shipment until it reaches the final
recovery facility, including cases in
which die waste is stored and/or
exchanged by the consignee prior to
shipment to the final recovery facility,
except as provided in §§ 262.84(a)(l)
and (2).
  (1) For shipments of hazardous waste
within the U.S. solely by water (bulk
shipments only) the generator must
forward the tracking document with the
manifest to the last water (bulk
shipment) transporter to handle the
waste in the U.S. if exported by water,
(in accordance with the manifest routing
procedures at § 262.23(c)).
  (2) For rail shipments of hazardous
waste within the U.S. which originate at
the site of generation, the generator
must forward the tracking document
with the manifest  (in accordance with
the routing procedures for the manifest
in § 262.23(d)) to the next non-rail
transporter, if any, or the last rail
transporter to handle the waste in the
U.S. if exported by rail.

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             Federal Register / Vol. 61, No. 72  /  Friday,  April 12, 1996 / Rules and Regulations      16313
  (b) The tracking document must
include all information required under
§ 262.83 (for notification), and the
following:
  (1) Date shipment commenced.
  (2) Name (if not notifier), address, and
telephone and telefax numbers of
primary exporter.
  (3) Company name and EPA ID
number of all transporters.
  (4) Identification (license, registered
name or registration number) of means
of transport, including types of
packaging.
  (5) Any special precautions to be
taken by transporters.
  (6) Certification/declaration signed by
notifier that no objection to the
shipment has been lodged as follows:
  I certify that the above information is
complete and correct to the best of my
knowledge. I also certify that 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 transfrontier
movement, and that:
  I. All necessary consents have been
received; OR
  2. The shipment is directed at a recovery
facility within the OECD area and no
objection has been received from any of the
concerned countries within the 30 day tacit
consent period; OR
  3. The shipment is directed at a recovery
facility pre-authorized for that type of waste
within the OECD area; such an authorization
has not been revoked, and no objection has
been received from any of the concerned
countries.
(delete sentences that are not applicable)
Name:  	
Signature:	
Date:  	
  (7) Appropriate signatures for each
custody transfer (e.g. transporter,
consignee, and owner or operator of the
recovery facility).
  (c) Notifiers also must comply with
the special manifest requirements of 40
CFR 262.54(a), (b), (c), (e), and (i) and
consignees must comply with the
import requirements of 40 CFR part 262,
subpart F.
  (d) Each U.S. person that has physical
custody of the waste from the time the
movement commences until it arrives at
the recovery facility must sign the
tracking document (e.g. transporter,
consignee, and owner or operator of the
recovery facility).
  (e) Within 3 working days of the
receipt of imports subject to this
Subpart, the owner or operator of the
U.S. recovery facility must send signed
copies of the tracking document to the
notifier, to the Office of Enforcement
and Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460, and
to the competent authorities of the
exporting and transit countries.

§262.85  Contracts.
  (a) Transfrontier movements of
hazardous wastes subject to amber or
red control procedures are prohibited
unless they occur under the terms of a
valid written contract, chain of
contracts, or equivalent arrangements
(when the movement occurs between
parties controlled by the same corporate
or legal entity). Such contracts or
equivalent arrangements must be
executed by the notifier and the owner
or operator of the recovery facility, and
must specify  responsibilities for each.
Contracts or equivalent arrangements
are valid for the purposes of this section
only if persons assuming obligations
under the contracts or equivalent
arrangements have appropriate legal
status to conduct the operations
specified in the contract or equivalent
arrangement.
  (b) Contracts or equivalent
arrangements must specify the name
and EPA ID number, where available, of:
  (1) The generator of each type of
waste;
  (2) Each person who will have
physical custody of the wastes;
  (3) Each person who will have legal
control of the wastes; and
  (4) The recovery facility.
  (c) Contracts or equivalent
arrangements must specify which party
to the contract will assume
responsibility for alternate management
of the wastes if its disposition cannot be
carried out as described in the
notification of intent to export. In such
cases, contracts must specify that:
  (1) The person having actual
possession or physical control over the
wastes will immediately inform the
notifier and the competent authorities of
the exporting and importing countries
and, if the wastes are located in a
country of transit, the competent
authorities of that country; and
  (2) The person specified in the
contract will assume responsibility for
the adequate management of the wastes
in compliance with applicable laws and
regulations including, if necessary,
arranging their return to the original
country of export.
  (d) Contracts must specify that the
consignee will provide the notification
required in § 262.82(c) prior to re-export
of controlled wastes to a third country.
  (e) Contracts or equivalent
arrangements must include provisions
for financial guarantees, if required by
the competent authorities of any
concerned country, in accordance with
applicable national or international law
requirements.
  Note to paragraph (e): Financial guarantees
so required are intended to provide for
alternate recycling, disposal or other means
of sound management of the wastes in cases
where arrangements for the shipment and the
recovery operations cannot be carried out as
foreseen. The U.S. does not require such
financial guarantees at this time; however,
some OECD countries do. It is the
responsibility of the notifier to ascertain and
comply with such requirements; in some
cases, transporters or consignees may refuse
to enter into the necessary contracts absent
specific references or certifications to
financial guarantees.
  (f) Contracts or equivalent
arrangements must contain provisions
requiring each contracting party to
comply with all applicable requirements
of this subpart.
  (g) Upon request by EPA, U.S.
notifiers, consignees, or recovery
facilities must submit to EPA copies of
contracts, chain of contracts, or
equivalent arrangements (when the
movement occurs between parties
controlled by the same corporate or
legal entity). Information contained in
the contracts or equivalent arrangements
for which a claim of confidentiality is
asserted accordance with 40 CFR
2.203(b) will be treated as confidential
and will be disclosed by EPA only as
provided in 40 CFR 260.2.
  Note to paragraph (g): Although the U.S.
does not require routine submission of
contracts at this time, OECD Council
Decision C(92)39/FINAL allows members to
impose such requirements. When other
OECD countries require submission of partial
or complete copies of the contract as a
condition to granting consent to proposed
movements, EPA will request the required
information; absent submission of such
information, some OECD countries may deny
consent for the proposed movement.

§ 262.86  Provisions relating to recognized
traders.
  (a) A recognized trader who  takes
physical custody of a waste and
conducts recovery operations (including
storage prior to recovery) is acting as the
owner or operator of a recovery facility
and must be so authorized in
accordance with all applicable Federal
laws.
  (b) A recognized trader acting as a
notifier or consignee for transfrontier
shipments of waste must comply with
all the requirements of this Subpart
associated with being a notifier or
consignee.

§ 262.87  Reporting and recordkeeping.
  (a) Annual reports. For all waste
movements subject to this Subpart,
persons (e.g., notifiers, recognized
traders) who meet the definition of

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  16314
Federal Register / Vol. 61, No. 72 / Friday.  April 12,  1996 / Rules and Regulations
  primary exporter in § 262.51 shall file
  an annual report with the Office of
  Enforcement and Compliance
  Assurance, Office of Compliance,
  Enforcement Planning, Targeting and
  Data Division (2222A), Environmental
  Protection Agency, 401 M St., SW.,
  Washington, DC 20460, no later than
  March 1 of each year summarizing the
  types, quantities, frequency, and
  ultimate destination of all such
  hazardous waste exported during the
  previous calendar year. (If the primary
  exporter is required to file an annual
  report for waste exports that are not
  covered under this Subpart, he may
  include all export information in one
  report provided the following
  information on exports of waste
 destined for recovery within the
 designated OECD member countries is
 contained in a separate section). Such
 reports shall include the following:
   (1) The EPA identification number,
 name, and mailing and site address of
 the notifier filing the report;
   (2) The calendar year covered by the
 report;
   (3) The name and site address of each
 final recovery facility;
   (4) By final recovery facility, for each
 hazardous waste exported, a description
 of the hazardous waste, the EPA
 hazardous waste number (from 40 CFR
 part 261, subpart C or D), designation of
 waste type(s) from OECD waste list and
 applicable waste code from the OECD
 lists, DOT hazard class, the name and
 U.S. EPA identification number (where
 applicable) for each transporter used,
 the total amount of hazardous waste
 shipped pursuant to this Subpart, and
 number of shipments pursuant to each
 notification;
   (5) In even numbered years, for each
 hazardous waste exported, except for
 hazardous waste produced by exporters
 of greater than 100kg but less than
 1000kg in a calendar month, and except
 for hazardous waste for which
 information was already provided
 pursuant to §262.41:
   (i) A description of the efforts
 undertaken during the year to reduce
 the volume and toxicity of waste
 generated; and
   (ii) A description of the changes in
 volume and toxicity of the waste
 actually achieved during the year in
 comparison to previous years to the
 extent such information is available for
 years prior to 1984; and
  (6) A certification signed by the
 person acting as primary exporter that
 states:
  I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this and all
attached documents, and that based on my
                         inquiry of those individuals immediately
                         responsible for obtaining the information, I
                         believe that the submitted information is
                         true, accurate, and complete. I am aware that
                         there are significant penalties for submitting
                         false information including the possibility of
                         fine and imprisonment.
                           (b) Exception reports. Any person
                         who meets the definition of primary
                         exporter in § 262.51 must file an
                         exception report in lieu of the
                         requirements of § 262.42 with the
                         Administrator if any of the following
                         occurs:
                           (1) He has not received a copy of the
                         tracking documentation signed by the
                         transporter stating point of departure of
                         the waste from the United States, within
                         forty-five (45) days from the date it was
                         accepted by the initial transporter;
                           (2) Within ninety (90) days from the
                         date the waste was accepted by the
                         initial transporter, the notifier has not
                         received written confirmation from the
                         recovery  facility that the hazardous
                         waste was received;
                           (3) The waste is returned to the
                         United States.
                           (c) Recordkeeping. (I) Persons who
                         meet the definition of primary exporter
                         in § 262.51 shall keep the following
                         records:
                           (i) A copy of each notification of
                         intent to export and all written consents
                         obtained from the competent authorities
                         of concerned countries for a period of at
                         least three years from the date the
                         hazardous waste was accepted by the
                         initial transporter;
                          (ii) A copy of each annual report for
                        a period of at least three years from the
                        due date of the report; and
                          (iii) A copy of any exception reports
                        and a copy of each confirmation of
                        delivery (i.e., tracking documentation)
                        sent by the recovery facility to the
                        notifier for at least three years from the
                        date the hazardous waste was accepted
                        by the initial transporter or received by
                        the recovery facility, whichever is
                        applicable.
                          (2) The  periods of retention referred to
                        in this section are extended
                        automatically during the course of any
                        unresolved enforcement action
                        regarding  the regulated activity or as
                        requested by the Administrator.

                        § 262.88 Pre-approval for U.S. Recovery
                        Facilities (Reserved).

                        §262.89 OECD Waste Lists.
                          (a) General. For the purposes of this
                        Subpart, a waste is considered
                        hazardous under U.S. national
                        procedures, and hence subject to this
                        Subpart, if the waste:
                          (1) Meets the Federal definition of
                        hazardous waste in 40 CFR 261.3; and
   (2) Is subject to either the Federal
 RCRA manifesting requirements at 40
 CFR part 262, subpart B, to the universal
 waste management standards of 40 CFR
 part 273, or to State requirements
 analogous to 40 CFR part 273.
   (b) If a waste is hazardous under
 paragraph (a) of this section and it
 appears  on the amber or red list, it is
 subject to amber- or red-list
 requirements respectively;
   (c) If a waste is hazardous under
 paragraph (a) of this section and it does
 not appear on either amber or red lists,
 it is subject to red-list requirements.
   (d) The appropriate control
 procedures for hazardous wastes and
 hazardous waste mixtures are addressed
 in § 262.82.
   (e) The OECD Green List of Wastes
 (revised  May 1994), Amber List of
 Wastes and Red List of Wastes (both
 revised May 1993) as set forth in
 Appendix 3, Appendix 4 and Appendix
 5, respectively, to the OECD Council
 Decision C(92)39/FINAL (Concerning
 the Control of Transfrontier Movements
 of Wastes Destined for Recovery
 Operations) are incorporated by
 reference. These incorporations by
 reference were approved by the Director
 of the Federal Register in accordance
 with 5 U.S.C. 552(a) and 1 CFR part 51
 on July 11,1996. These materials are
 incorporated as they exist on the date of
 the approval and a notice of any change
 in these materials will be published in
 the Federal Register. The materials are
 available for inspection at: the Office of
 the Federal Register, 800 North Capitol
 Street, NW., suite 700, Washington, DC;
 the U.S. Environmental Protection
 Agency, RCRA Information Center (RIC),
 1235 Jefferson-Davis Highway, first
 floor, Arlington, VA 22203 (Docket # F-
 94-IEHF-FFFFF) and may be obtained
 from the  Organisation for Economic Co-
 operation and Development,
 Environment Direcorate, 2 rue Andre
 Pascal, 75775 Paris Cedex 16, France.

 PART 263—STANDARDS APPLICABLE
 TO TRANSPORTERS OF HAZARDOUS
 WASTE

  10. The authority citation for part  263
 is revised to read as follows:
  Authority: 42 U.S.C.  6906, 6912, 6922,
 6923, 6925, 6937, and 6938.
  11. Section 263.10 is amended by
 adding paragraph (d) to read as follows:

§263.10  Scope.
 *****
  (d) A transporter of hazardous waste
subject to the Federal manifesting
requirements of 40 CFR part 262, or
subject to the waste management
standards of 40 CFR part 273, or subject

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            Federal Register / Vol. 61, No.  72 / Friday, April  12, 1996 / Rules and Regulations      16315
to State requirements analogous to 40
CFR part 273, that is being imported
from or exported to any of the countries
listed in 40 CFR 262.58(a)(l) for
purposes of recovery is subject to this
Subpart and to all other relevant
requirements of subpart H of 40 CFR
part 262, including, but not limited to,
40 CFR 262.84 for tracking documents.
  12. Section 263.20(a) is revised to
read as follows:

§263.20  The manifest system.
  (a) A transporter may not accept
hazardous waste from a generator unless
it is accompanied by a manifest signed
in accordance with the provisions of 40
CFR 262.20. In the case of exports other
than those subject to subpart H of 40
CFR part 262, a transporter may not
accept such waste from a primary
exporter or other  person if he knows the
shipment does not conform to the EPA
Acknowledgement of Consent; and
unless, in addition to a manifest signed
in accordance with the provisions of 40
CFR 262.20, such waste is also
accompanied by an EPA
Acknowledgement of Consent which,
except for shipment by rail, is attached
to the manifest (or shipping paper for
exports by water  (bulk shipment}). For
exports of hazardous waste subject to
the requirements of subpart H of 40 CFR
part 262, a transporter may not accept
hazardous waste  without a tracking
document that includes all information
required by 40 CFR 262.84.
 PART 264—STANDARDS FOR
 OWNERS AND OPERATORS OF
 HAZARDOUS WASTE TREATMENT,
 STORAGE, AND DISPOSAL
 FACILITIES

  13a. The authority citation for part
 264 continues to read as follows:
  Authority: 42 U.S.C. 6905, 6912(a) 6924,
 and 6925,13b. Section 264.12 is amended by
 redesignating paragraph (a) as paragraph
 (a)(l) and by adding a paragraph (a)(2) to read
 as follows:

 § 264.12  Required notices.
  (a) * * *
  (2) The owner or operator of a
 recovery facility that has arranged to
 receive hazardous waste subject to 40
 CFR part 262, subpart H must provide
 a copy of the tracking document bearing
 all  required signatures to the notifier, to
 the Office of Enforcement and
 Compliance Assurance, Office of
 Compliance, Enforcement Planning,
 Targeting and Data Division (2222A),
 Environmental Protection Agency, 401
 M St., SW., Washington, DC 20460; and
 to the competent authorities of all other
 concerned countries within three
working days of receipt of the shipment.
The original of the signed tracking
document must be maintained at the
facility for at least three years.
*****
  14. Section 264.71 is amended by
adding paragraph (d) after the comment
to read as follows:

§ 264.71   Use of manifest system.
*****
  (d) Within three working days of the
receipt of a  shipment subject to 40 CFR
part  262, subpart H, the owner or
operator of the facility must provide a
copy of the  tracking document bearing
all required signatures to the notifier, to
the Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460, and
to competent authorities of all other
concerned countries. The original copy
of the tracking document must be
maintained at the facility for at least
three years  from the date of signature.

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

  15. The authority citation for part 265
is revised to read as follows:
  Authority: 42 U.S.C 6905,6906, 6912,
6922, 6923, 6924, 6925, 6935, 6936, and
6937.
  16. Section 265.12 is amended by
redesignating paragraph (a) as paragraph
(a)(l) and by adding paragraph (a)(2) to
read as follows:

§265.12  Required notices.
  (a) *  * *
  (2) The owner or operator of a
recovery facility that has arranged to
receive hazardous waste subject to 40
CFR part 262, subpart H must provide
a copy of the tracking document bearing
all required signatures to the notifier, to
the Office of Enforcement and
Compliance Assurance, Office of
Compliance, Enforcement Planning,
Targeting and Data Division (2222A),
Environmental Protection Agency, 401
M St., SW., Washington, DC 20460 and
to the competent authorities of all other
concerned  countries within three
working days of receipt of the shipment.
The original of the signed tracking
document must be maintained at the
facility for  at least three years.
*****
   17. Section 265.71 is amended by
adding paragraph (d) after the comment
to read as follows:
§ 265.71  Use of the manifest system.
*****
  (d) Within three working days of the
receipt of a shipment subject to 40 CFR
part 262, subpart H, the owner or
operator of facility must provide a copy
of the tracking document bearing all
required signatures to the notifier, to the
Office of Enforcement and Compliance
Assurance, Office of Compliance,
Enforcement Planning, Targeting and
Data Division (2222A), Environmental
Protection Agency, 401M St., SW.,
Washington, DC 20460, and to
competent authorities of all other
concerned countries. The original copy
of the tracking document must be
maintained at the facility for at least
three years from the date of signature.

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

  18.  The authority citation for part 266
is revised to read as follows:
  Authority: 42 U.S.C 1006, 2002(a), 3004,
3014, 6905, 6906,6912, 6922, 6923, 6924,
6925, 6934, and 6937.
  19.  Section 266.70 is amended by
adding paragraph (b)(3) and by adding
the word "and" at the end of paragraph
(b)(2) to read as follows:

§ 266.70 Applicability and requirements.
*****
  (b)"  *  *
  (3) For precious metals exported to or
imported from designated OECD
member countries for recovery, subpart
H of part 262 and § 265.12(a)(2) of this
chapter. For precious metals exported to
or imported from non-OECD countries
for recovery, subparts E and F of 40 CFR
part 262.
 PART 273—STANDARDS FOR
 UNIVERSAL WASTE MANAGEMENT

   20a. The authority citation for part
 273 continues to read as follows:
   Authority: 42 U.S.C. 6922,6923, 6924,
 6925, 6930, and 6937. 20b. The introductory
 text for § 273.20 is revised to read as follows:

 §273.20  Exports.
   A small quantity handler of universal
 waste who sends universal waste to a
 foreign destination other than to those
 OECD countries specified in 40 CFR
 262.58(a)(l) (in which case the handler
 is subject to the requirements of 40 CFR
 part 262, subpart H) must:
 *****
   21. The introductory text for § 273.40
 is revised to read as follows:

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16316
Federal  Register  / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules and Regulations
§273.40 Exports.
  A large quantity handler of universal
waste who sends universal waste to a
foreign destination other than to those
OECD countries specified in 40 CFR
262.58(a)(l) (in which case the handler
is subject to the requirements of 40 CFR
part 262, subpart H) must:
*****
  22. The introductory text for § 273.56
is revised to read as follows:

§273.56 Exports.
  A universal waste transporter
transporting a shipment of universal
waste to a foreign destination other than
to those OECD countries specified in 40
CFR 262.58(a)(l) (in which case the
                         transporter is subject to the
                         requirements of 40 CFR part 262,
                         subpart H) may not accept a shipment
                         if the transporter knows the shipment
                         does not conform to the EPA
                         Acknowledgment of Consent. In
                         addition the transporter must ensure
                         that:
                         *****
                           23. Section 273.70 is amended by
                         revising the introductory text and by
                         adding a new paragraph (d) to read as
                         follows:

                         §273.70 Imports.
                           Persons managing  universal waste
                         that is imported from a foreign country
                         into the United States are subject to the
applicable requirements of this part,
immediately after the waste enters the
United States, as indicated in
paragraphs (a) through (c) of this
section:
*    *    *     *    *

  (d) Persons managing universal waste
that is imported from an OECD country
as specified in 40 CFR 262.58(a)(l) are
subject to paragraphs (a) through (c) of
this section, in addition to the
requirements of 40 CFR part 262,
subpart H.
[FR Doc. 96-8087 Filed 4-11-96; 8:45 am]
BILLING CODE 6560-50-P

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