[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16290-16316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8087]




[[Page 16289]]


_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 9, et al.



Imports and Exports of Hazardous Waste: Implementation of OECD Council 
Decision; Final Rule

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

[[Page 16290]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 260, 261, 262, 263, 264, 265, 266 and 273

[FRL-5447-1]
RIN 2050-AD87


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The rule identifies the wastes, under the Resource 
Conservation and Recovery Act (RCRA), that are subject to a graduated 
system (green, amber, red) of procedural and substantive controls when 
they move across national borders within the OECD for recovery. (EPA 
may, in the future, identify wastes under other statutes that are 
subject to the OECD Decision). It seeks to make the transactions fully 
transparent and to prevent or minimize the possibility of such wastes 
being abandoned or otherwise illegally handled. These requirements will 
apply only to U.S. exporters and importers of RCRA hazardous wastes 
destined for recovery in OECD countries (except for Canada and Mexico; 
waste shipments to and from these countries will continue to move under 
the current bilateral agreements and regulations). Those U.S. exporters 
and importers transacting hazardous waste movements outside the scope 
of today's rule will remain subject to EPA's current waste export and 
import regulations at 40 CFR part 262, subparts E and F.
    This rule does not increase the scope of wastes subject to U.S. 
export and import controls; it does, however, modify the procedural 
controls governing their export and import when shipped for recovery 
among OECD countries. Today's rule will assist in harmonizing the new 
OECD requirements, reducing confusion to U.S. importers and exporters 
and increasing the efficiency of the process.

EFFECTIVE DATE: This rule is effective on July 11, 1996. The OECD Green 
List of Wastes (revised May 1994), Amber List of Wastes and Red List of 
Wastes (both revised May 1993) as set forth in Appendix 3, Appendix 4 
and Appendix 5, respectively, to the OECD Council Decision C(92)39/
FINAL (Concerning the Control of Transfrontier Movements of Wastes 
Destined for Recovery Operations) were approved by the Director of the 
Federal Register to be incorporated by reference in today's rule on 
July 11, 1996.

ADDRESSES: Supporting materials are available for viewing in the RCRA 
Information Center (RIC), located at 1235 Jefferson-Davis Highway, 
First Floor, Arlington, Virginia 22203. The Docket Identification 
Number is F-94-IEHF-FFFFF. The RIC is open from 9 a.m. to 4 p.m., 
Monday through Friday, excluding federal holidays. To review docket 
materials, the public must make an appointment by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory 
docket at no charge. Additional copies cost $.15/page. Some supporting 
materials are available electronically. See the ``Supplementary 
Information'' section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing 
impaired). In the Washington metropolitan area, call 703-412-9810 or 
TDD 703-412-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Ms. Julia Gourley, Office of Solid Waste (5304), 
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC 
20460, (202) 260-7944.

SUPPLEMENTARY INFORMATION:

Internet Access

    Selected supporting materials are available on the Internet. Follow 
these instructions to access the information electronically:

Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335.

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

[[Page 16291]]

    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
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    \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.
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    The Basel Convention entered into force on May 5, 1992, for the 
twenty countries that ratified it by that date. Since then, a number of 
other countries have also ratified. The Convention prohibits trade in 
Basel-covered wastes between parties and non-parties, unless a 
bilateral, multilateral, or regional agreement or arrangement exists in 
accordance with Article 11 of the Convention. The Decision, which 
entered into force before May 5, 1992, satisfies the requirements of 
Article 11 of the Basel Convention because it is a pre-existing 
multilateral agreement compatible with the environmentally sound 
management of wastes as required by the Convention. Therefore, today's 
promulgation of Subpart H as part of the RCRA hazardous waste export 
and import regulations, which is necessary to implement the Decision, 
will make it possible for persons within the United States to continue 
exporting and importing Basel-covered RCRA hazardous waste for recovery 
within the OECD, even if other OECD countries are Parties to the Basel 
Convention. Additionally, today's rule will facilitate harmonization of 
U.S. regulations with European Union regulations on waste exports and 
imports, which went into effect on May 6, 1994. Future legislative and 
regulatory actions will be needed to more fully implement this 
Decision.

A. Good Cause Exception to Notice and Comment Requirement

    The Decision sets out very specific requirements for shipments of 
hazardous waste destined for recovery. EPA is implementing language 
that essentially mirrors the Decision in order to establish certain new 
requirements that will be enforceable against importers and exporters 
[EPA is making only minimal, nonsubstantive changes to the OECD 
language in order to conform today's rule to existing RCRA rules (e.g., 
substituting the 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 by the APA.
    EPA finds that notice and comment procedures are unnecessary in 
connection with the promulgation of today's rule because EPA is 
precluded from modifying the rule in any meaningful way in response to 
public comment. The requirement to implement this Decision virtually as 
written derives from the following.
    First, the United States has entered into a legally binding 
commitment with the other OECD countries to implement the Decision 
virtually as written. Accordingly, today's rulemaking is analogous to a 
codification of statutory requirements, in which an agency assumes the 
ministerial, nondiscretionary functions of translating requirements to 
regulatory form [see United Technologies Corp. v. EPA, 821 F.2d 714, 
720 (D.C. Cir. 1987) (finding that EPA had good cause to omit notice 
and comment for a rule codifying portions of the 1984 amendments to 
RCRA); Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 
1282, 1291 (D.C. Cir. 1982) (finding orders implementing statutory 
waiver were nondiscretionary acts required by such waiver and that 
notice and comment procedures were unnecessary and possibly contrary to 
the public interest ``given the expense that would have been involved 
in the futile gesture'')]. Although the Decision is neither a statute 
nor a court order and imposes no requirements directly on U.S. persons, 
the U.S. Department of State has determined that the Decision is an 
international agreement creating binding commitments on the United 
States under the terms of the OECD Convention. By consenting to the 
Decision, the United States Government has agreed to promulgate 
regulations necessary to ensure that the United States can uphold the 
agreement. Furthermore, EPA has determined that no statutory change to 
the Resource Conservation and Recovery Act (RCRA) is needed because 
RCRA currently authorizes EPA to promulgate rules governing imports and 
exports of hazardous waste, and contains adequate authority to 
promulgate the requirements of the Decision.
    Second, today's rule cannot deviate materially from the Decision 
because, as a practical matter, other OECD countries may refuse to 
accept U.S. shipments of waste for recycling that do not conform to the 
procedures agreed to in the Decision. Such countries also may refuse to 
allow wastes to be shipped to the U.S. if the U.S. cannot carry out its 
duties as specified in the Decision. Deviation from the regulatory 
scheme

[[Page 16292]]

articulated in the Decision in response to comments might preclude the 
U.S. from implementing the Decision and therefore from satisfying its 
international commitments.
    Third, EPA must implement the Decision virtually as written because 
modifications could defeat the goal of achieving an internationally 
consistent regime to control the import and export of hazardous and 
other wastes destined for recovery. EPA believes that parallel 
implementation of the Decision within the U.S. and other OECD countries 
is crucial to ensuring that the import and export of wastes destined 
for recovery proceed in accordance with an internationally integrated 
regime. Without the uniform implementation of the controls it 
prescribes, an internationally consistent regime is not possible, and 
many of the environmental benefits of the Decision (and the Basel 
Convention) will be lost.
    EPA also believes that it has good cause to find that prior notice 
and an opportunity to comment would not serve the public interest. As 
noted above, the movement of RCRA hazardous wastes destined for 
recovery could be halted between the United States and the OECD 
countries, particularly those that are parties to the Basel Convention, 
if the United States modified the regulations in response to comment 
such that the regulations failed to conform to the OECD Decision. EPA 
believes that the continued movement and recovery of such wastes is 
environmentally and economically beneficial. The United States, 
therefore, encourages the environmentally sound recovery of wastes, 
particularly hazardous wastes, as an alternative to disposal [see, 
e.g., 42 U.S.C. 6902(a)(6), 6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA 
believes that the import and export of wastes among OECD countries for 
purposes of recovery serves the public interest by making waste 
management facilities in the OECD available to waste generators in the 
U.S. and other OECD countries, thereby providing additional assurance 
that wastes amenable to recovery operations will be managed in an 
environmentally sound manner. The United States' failure to implement 
the Decision in the form approved by the OECD countries could thwart 
this objective.
    In further support of its finding that the public interest is not 
well served by the allowance for comment on this rulemaking, EPA also 
notes that the regulatory burdens of this rule flow from the Decision 
itself and are not materially affected by the promulgation of today's 
rule. Because a number of OECD countries to date have fully implemented 
the Decision, many U.S. importers and exporters of wastes destined for 
recovery who seek to trade with OECD countries in effect already are 
subject to the requirements of the Decision through those countries' 
controls on their imports and exports. For example, these countries may 
already require, as a condition of authorizing the shipment, that U.S. 
participants adhere to the Decision's contracting or notice 
requirements, even though those participants are not yet required to do 
so under U.S. law. Thus, it is the implementation of the Decision by 
other OECD countries, rather than the implementation of today's rule, 
that has the most profound effect on the regulated community. Because 
today's rule merely formalizes the existing regulatory framework to 
which the regulated community is already subject, its promulgation 
without notice and comment does not detrimentally affect those persons 
[see National Helium Corp. v. Federal Energy Administration, 569 F.2d 
1137, 1146 (Temp. Emer. Ct. App. 1978)]. Indeed, as noted above, 
today's rule ameliorates the effects of foreign laws on U.S. persons by 
making it possible for RCRA hazardous waste destined for recovery to 
move between the U.S. and other OECD countries without being stopped or 
rejected for failure to conform to the Decision. Finally, where EPA 
believes the OECD Decision is open to interpretation and affords EPA 
some flexibility in interpreting and implementing its requirements, EPA 
remains free to initiate a separate rulemaking process on those issues, 
following all appropriate notice and comment procedures.
    For the reasons set forth above, EPA believes that it has good 
cause to find that implementation of notice and comment procedures for 
today's rule would be unnecessary and contrary to the public interest, 
and therefore is not required under 5 U.S.C. 553(b)(B) to initiate a 
comment period.

B. Effective Date

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

II. Background

A. History of the OECD and Development of the Council Decision C(92)39/
Final

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

[[Page 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 
ratifies the Convention. In order to ratify the Convention, the U.S. 
must have additional statutory authority to implement its terms. Once 
the U.S. has the necessary authority, the export and import regulations 
at 40 CFR 262 Subparts E and F will be modified.
    Exports and imports among OECD countries of waste destined for 
recovery will be governed by the procedures set forth in today's 
regulations and by any future regulatory changes made to implement the 
Decision (including future changes to the Decision).\2\ Exports and 
imports of RCRA hazardous wastes within the OECD for purposes other 
than recycling (e.g., disposal or treatment) will continue to be 
subject to the current RCRA export and import regulations.
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    \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.
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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 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 Sec. II. C. 2. d.)

[[Page 16294]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 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 
Sec. 262.81(g) of today's rule, the notifier is the person under the 
jurisdiction of the exporting country who has, or will have at the time 
the transfrontier movement commences, possession or other forms of 
legal control of the wastes and who proposes their transfrontier 
movement for the ultimate purpose of submitting them to recovery 
operations (see section III. B. 9.). In certain cases, a general 
notification will be permissible. The competent authority of the 
exporting country may elect to perform the notification duties. EPA is 
the United States' competent authority for OECD purposes. Therefore, 
under today's rule, the notifier will provide written notification to 
EPA for exports from the U.S. of RCRA hazardous wastes subject to 
amber-list controls, and EPA will in turn notify the competent 
authorities of all concerned OECD countries. The competent authority of 
the importing country must issue an Acknowledgement of Receipt to the 
notifier and to the competent authorities of the exporting and transit 
countries within three working days of receiving the export notice. For 
the purposes of this rule, ``transit country'' refers only to a transit 
country that is a member of the OECD and is a Party to the Decision, 
including Canada [see section III. B. 4. of today's preamble and 
Sec. 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    The competent authority of the importing country may also allow a 
notifier to submit a general notification for the shipment of amber-
list waste when that type of waste is to be sent periodically by the 
same notifier to the same facility. The notification lasts up to one 
year and may be renewed. In addition, OECD countries may designate 
facilities that they have pre-approved for receipt of amber wastes (see 
section III. C. 1. c.). When the U.S. receives notice from the OECD 
that specific facilities are pre-approved by the competent authority of 
a foreign government, EPA will undertake to make that information 
available to U.S. notifiers. At the present time, there are no U.S. 
facilities pre-approved for receipt of amber wastes (see section VIII).
    Waste shipments must be accompanied by a tracking document. The 
WMPG developed forms in March 1994 which are recommended to be used for 
notification and tracking purposes.\5\ These forms may be used by U.S. 
notifiers but will not be required until approved by OMB and codified 
into the regulations. For hazardous wastes exported from or imported to 
the United States, a uniform hazardous waste manifest also must 
accompany the waste shipment while it is in the jurisdiction of the 
U.S. (see section III. D.).
---------------------------------------------------------------------------

    \5\ A copy of the recommended OECD notification and tracking 
forms can be found in the docket for this rule.
---------------------------------------------------------------------------

    c. Red-List Wastes. The requirements for red-list wastes are 
similar to the requirements for amber-list wastes with one very 
important exception: tacit consent is not permissible. The red controls 
include: a written contract, chain of contracts, or equivalent 
arrangement where the notifier and recovery facility are part of the 
same legal or corporate entity; written notification to the competent 
authorities of the concerned countries;\6\ prior consent of the 
importing and transit countries; and a tracking document accompanying 
the shipment. However, unlike amber-list wastes, red-list wastes cannot 
be shipped unless all necessary consents are obtained in writing. (See 
section III. C, D, & E for additional information).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    It is important to note that, within the U.S., in addition to the 
OECD requirements, some red-list wastes also may be subject to 
requirements under other legal authorities, such as regulations 
promulgated under the Toxic Substances Control Act (e.g., PCB 
regulatory controls promulgated in 40 CFR Part 760; see section IV. B. 
7. for additional information).
    d. When Wastes are Not Considered Hazardous by All Concerned 
Countries. There may be cases in which the concerned countries (i.e., 
exporting, importing, and transit) disagree over the level of control 
to be assigned to a waste on the OECD lists.
    The Decision provides guidance in section II(4) for cases where the

[[Page 16296]]

exporting country, using its national procedures, does not consider a 
waste on the amber or red OECD lists to be hazardous, while the 
importing country does. In such cases, the importing country shall 
assume all obligations assigned to the exporting country in sections IV 
or V of the Decision, as applicable, particularly with regard to 
notification requirements. This means that the competent authority of 
the importing country or the importer would notify the competent 
authorities of the exporting country, for information purposes, and 
transit countries, for purposes of obtaining consent, prior to the 
proposed import. If the exporting country does not consider the waste 
to be hazardous under its national procedures, then no obligations 
under the Decision rest on the exporter and the exporting country. For 
example, if the U.S. does not consider a waste to be hazardous, today's 
rule imposes no obligations on the U.S. exporter. However, the U.S. 
exporter may need to provide information to the importer (e.g., 
consignee, or owner or operator of the recovery facility) so that the 
importer can supply the competent authorities of the concerned 
countries with the necessary notification information. This information 
exchange requirement may be worked out in the contract, chain of 
contracts, or equivalent arrangement for parties of the same legal or 
corporate entity, so U.S. waste handlers should anticipate such 
requests from waste trading partners in other OECD nations. Requests 
may go as far as requiring the U.S. exporter to notify all competent 
authorities in the concerned countries for wastes not considered 
hazardous in the U.S.
    In cases where only the exporting country considers the amber- or 
red-list waste to be hazardous, the country's competent authority or 
exporter would notify and seek consent of the importing and transit 
countries prior to shipment in accordance with the appropriate amber-
list or red-list controls. Although these countries do not consider the 
waste to be hazardous using their national procedures, the consent of 
the importing and transit countries is still necessary under the laws 
of the exporting country. The importer and exporter would also be 
required to comply with any contractual requirements imposed by the 
exporting country.
    The Decision also recognizes in section II(6) the right of OECD 
countries to require amber-list or red-list controls for wastes 
identified on the green list, in accordance with domestic legislation 
and international law, for the purpose of protecting human health and 
the environment. OECD countries are required to inform the Secretariat 
of such controls. For example, Austria has stated that it subjects some 
green-list wastes and all amber-list wastes to 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-list wastes that are 
hazardous under RCRA and subject to manifesting requirements to move 
under amber controls. In these cases, the wastes are subject to the 
country's controls only while they are in that country's jurisdiction. 
Of course, the exporter or importer may, as a contractual matter, have 
to comply with amber- or red-list control requirements before the waste 
enters the jurisdiction of the country that considers the waste to be 
hazardous.
    The Decision does not address cases where the exporting and 
importing countries consider a waste to be 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.

III. Specific OECD Requirements and Relationship to RCRA

A. Differences Between the OECD Decision and Today's Rule

    Today's regulations implementing the Decision are applicable only 
to hazardous wastes destined for recovery that (1) are hazardous under 
RCRA and subject to manifesting requirements, and (2) are sent to or 
received from an OECD country other than Canada and Mexico. All exports 
and imports of hazardous waste to or from a non-OECD country, to Canada 
or Mexico (see Sec. 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).

[[Page 16297]]



  Table 1.--Summary of Relationship Between Current RCRA Export/Import Regulations and Regulations Implementing 
                                                the OECD Decision                                               
----------------------------------------------------------------------------------------------------------------
                                     Current RCRA regulation (40  Today's regulations implementing OECD decision
               Issue                      CFR 262.50-262.60)                  (40 CFR 262.80-262.89)            
----------------------------------------------------------------------------------------------------------------
General:                                                                                                        
    Applicability..................  Governs all imports and      Scope of wastes covered same as current       
                                      exports of RCRA hazardous    regulations. However, new Subpart H applies  
                                      waste subject to Federal     only to waste imports and exports for        
                                      manifesting requirements     recovery between U.S. and OECD countries,    
                                      in 40 CFR Part 262           excluding Canada and Mexico.\1\ For purposes 
                                      regardless of final          of this rule, procedural controls apply to   
                                      disposition.                 amber-list, red-list, and unlisted wastes    
                                                                   that are RCRA hazardous and manifested. Green-
                                                                   list wastes are exempt unless hazardous under
                                                                   U.S. national procedures.                    
Imports:                                                                                                        
    Notification...................  One-time advance notice per  Current requirement for TSDs for one          
                                      waste stream per foreign     notification maintained. In addition, EPA    
                                      source required for          will receive notice from foreign exporter or 
                                      treatment, storage, or       competent authority of his country, per the  
                                      disposal (TSD) facilities    Decision.                                    
                                      regulated under Part 264/                                                 
                                      265.                                                                      
    Approval to import.............  None required \2\..........  For import to occur, EPA must give tacit or   
                                                                   written consent for amber-list wastes and    
                                                                   written consent for red-list wastes. Written 
                                                                   consent and objections must be sent to       
                                                                   notifier and competent authorities of        
                                                                   concerned countries.                         
    Tracking.......................  A uniform hazardous waste    Same as current regulations, plus additional  
                                      manifest is required from    OECD tracking information required. Tracking 
                                      the time the shipment        document must stay with the shipment until   
                                      enters the U.S. until it     received by recovery facility. Recovery      
                                      reaches the designated       facilities under Parts 264/265 must return   
                                      facility.                    signed copy to notifier and competent        
                                                                   authorities of concerned countries.          
    Financial assurance for          None required..............  None required under U.S. law for U.S.         
     alternate management.                                         entities. If foreign exporter's government   
                                                                   requires such assurance, foreign notifier may
                                                                   require U.S. importer to have financial      
                                                                   assurance as a condition of their contract.  
    Contracts......................  None required..............  A legally binding contract, chain of          
                                                                   contracts, or equivalent arrangement between 
                                                                   parties owned by the same corporate entity,  
                                                                   specifying each responsible party handling   
                                                                   shipments of amber-list or red-list wastes   
                                                                   and the responsible party in case alternate  
                                                                   management, re-exportation or re-importation 
                                                                   is necessary because arrangements for the    
                                                                   shipment or recovery operation cannot be     
                                                                   carried out as foreseen. Additional          
                                                                   provisions apply to recognized traders as    
                                                                   defined in Sec.  262.81(i).                  
Exports:                                                                                                        
    Notification...................  Notification to EPA at       Same as current regulations with additional   
                                      least 60 days prior to       information requirements, except that        
                                      initial shipment is          notification to EPA must occur at least 45   
                                      required; notice then        days prior to initial shipment; may use OECD-
                                      transmitted to importing     recommended notification form; EPA will      
                                      and transit countries.       notify competent authorities of importing and
                                      Notice may cover multiple    transit countries.                           
                                      shipments for up to 12                                                    
                                      months.                                                                   
    Approval of export by competent  The importing country must   For amber-list wastes, consent presumed 30    
     authority of importing country.  consent to the export. EPA   days from the date the competent authority of
                                      notifies exporter by         the importing country acknowledges receipt of
                                      sending Acknowledgement of   notification unless a denial or request for  
                                      Consent or objection.        additional information is received; no       
                                                                   consent from importing country needed if     
                                                                   waste is destined for pre-approved recovery  
                                                                   facility, although prior notification is     
                                                                   required. For red-list wastes, written       
                                                                   consent is necessary to export.              
    Approval of export by competent  None required. As a          For amber-list wastes, consent is presumed 30 
     authority of transit country.    practical matter, however,   days from the date the competent authority of
                                      since EPA transmits any      the transit country acknowledges receipt of  
                                      response received from the   notification unless a denial or request for  
                                      transit country, EPA         additional information is received. For red- 
                                      expects that the exporter    list wastes, written approval is necessary to
                                      would reroute shipment if    export. No consent is required from transit  
                                      the transit country          countries that are not OECD members. As a    
                                      objects.                     practical matter, however, EPA expects that  
                                                                   the exporter would reroute shipment if the   
                                                                   transit country objects.                     
    Tracking.......................  Uniform hazardous waste      Substantively same as current regulations,    
                                      manifest must accompany      plus additional OECD tracking information    
                                      the shipment while in the    required. OECD-recommended notification and  
                                      U.S and a copy must be       tracking document or other paper supplying   
                                      left with Customs; EPA       the required information may be used until   
                                      Acknowledgement of Consent   OECD form approved by OMB and incorporated   
                                      also must be attached.       into the regulations. Tracking document must 
                                      Exporter must receive        stay with the shipment until received by     
                                      written confirmation of      recovery facility. Recovery facility must    
                                      delivery to foreign          return signed copy to export notifier and    
                                      consignee.                   competent authorities of concerned countries.
    Financial assurance for          None required..............  None required under U.S. law for U.S.         
     alternate management.                                         entities. If foreign importing or transit    
                                                                   countries require such assurance, U.S.       
                                                                   exporters may be required to have financial  
                                                                   assurance as a condition of their contract or
                                                                   face having proposed shipments denied.       
    Recordkeeping..................  Copies of manifests,         The same as current requirements except that  
                                      notifications of intent to   written consent from competent authorities of
                                      export, EPA                  concerned countries is maintained in lieu of 
                                      Acknowledgments of           EPA Acknowledgement of Consent.              
                                      Consent, exception                                                        
                                      reports, and annual                                                       
                                      reports must be maintained                                                
                                      for at least 3 years.                                                     

[[Page 16298]]

                                                                                                                
    Reporting......................  Exporters must prepare and   Same as current requirements.                 
                                      submit an annual report                                                   
                                      and exception reports to                                                  
                                      EPA.                                                                      
    Contract.......................  None required..............  A legally binding written contract, chain of  
                                                                   contracts, or equivalent arrangement between 
                                                                   parties of the same legal or corporate entity
                                                                   specifying the name of each responsible      
                                                                   person handling shipments of amber-list or   
                                                                   red-list wastes and the responsible party in 
                                                                   case alternate management, re-exportation or 
                                                                   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 Sec.  262.81(i).       
----------------------------------------------------------------------------------------------------------------
\1\ Imports from and exports to Canada and Mexico are governed under the U.S./Canada bilateral agreement, the   
  U.S./Mexico bilateral agreement, and EPA's current regulations. These regulations include 40 CFR 262 Subparts 
  E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of today's regulations.                                      
\2\ For imports from Canada, the U.S./Canadian bilateral agreement requires notice and allows for tacit consent 
  if no response is lodged 30 days after the notice is received. For imports from Mexico, the U.S./Mexico       
  bilateral agreement requires notice, but does not allow for tacit consent.                                    



B. Definitions

    Many of the following definitions in the Decision are being 
codified in today's rule. In some cases, the OECD definitions are 
somewhat different than the current RCRA definitions. Where they are, 
the differences are discussed. The definitions codified at 40 CFR 
260.10 (e.g., Transporter, etc.). continue to apply to all terms not 
defined in today's rule.
1. Competent Authorities
    Competent Authorities means the regulatory authorities of concerned 
countries having jurisdiction over transfrontier movements of wastes 
destined for recovery operations.
    The competent authority will be the agency or similar entity that 
has authority over environmental or hazardous waste issues in the 
receiving country. A list of the contacts for competent authorities of 
OECD countries is provided in the docket for this rule. The competent 
authority of the United States is the U.S. Environmental Protection 
Agency. All notices and required information must be sent to the Office 
of Enforcement and Compliance Assurance, Office of Compliance, 
Enforcement Planning, Targeting and Data Division (2222A), 
Environmental Protection Agency, 401 M St., SW, Washington, DC 20460. 
The words ``Attention: OECD Export Notification'' should be displayed 
prominently on the envelope.
2. Concerned Countries
    Concerned Countries means the exporting and importing OECD 
countries and any OECD countries of transit.
    The OECD countries subject to this Decision are: Australia, 
Austria, Belgium, Canada,7 Denmark, Finland, France, Germany, 
Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New 
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United 
Kingdom, and the United States.8
---------------------------------------------------------------------------

    \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.
    \8\ 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.
---------------------------------------------------------------------------

3. Consignee
    Consignee means the person to whom possession or other form of 
legal control of the waste is assigned at the time the waste is 
received in the importing country.
    Currently there is a definition of ``consignee'' at 40 CFR 262.51, 
which means the ultimate treatment, storage, or disposal facility in 
the receiving country to which the hazardous waste will be sent. The 
OECD's definition, however, refers to the first person to take physical 
or legal custody of the waste. This is broader than the Agency's 
definition in 40 CFR 262.51, but imposes no new obligations on 
importers. A consignee could be a recognized trader, transporter, 
storage facility operator, or recovery facility operator. The OECD 
definition for consignee will be codified today for exports/imports of 
hazardous wastes destined for recovery among OECD countries to replace 
the current definition found at 40 CFR 262.51.
4. Country of Transit
    Country of Transit means any OECD country other than the exporting 
or importing country across which a transfrontier movement of wastes is 
planned or takes place.
    The Agency interprets this definition to mean the same as transit 
country, which is currently codified at 40 CFR 262.51 except that, for 
purposes of this Decision, it is limited to OECD countries as defined 
at 40 CFR 262.58(a).
    It also should be noted that the United States made a declaration 
that a state is a transit state or ``country of transit'' within the 
meaning of the Decision only if wastes are moved, or are planned to be 
moved, through its inland waterways, inland waters, or land territory. 
Thus, in the United States' view, the movement of waste subject to 
Subpart H through an OECD country's territorial sea but not through its 
inland waterways, inland waters, or land territory would not make that 
country a transit country for the purposes of today's rule.
5. Exporting Country
    Exporting Country means any OECD country from which a transfrontier 
movement of wastes is planned or has commenced.
6. Generator
    Generator means a person whose activities create wastes.
    It is the Agency's interpretation that the current RCRA regulatory 
definition of generator found at 40 CFR 260.10 is consistent with the 
OECD definition. The RCRA definition states that a ``generator'' means 
any person, by site, whose act or process produces hazardous waste 
identified or listed in 40 CFR part 261 or whose act first causes a 
hazardous waste to become subject to regulation. This is particularly 
relevant with respect to section II(8) of the Decision, which provides 
that a person who mixes two or more wastes,

[[Page 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 Sec. 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 
Sec. 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).

[[Page 16300]]

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 Secs. 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 Sec. III. C. 1. c. of today's 
preamble. Certain contractual obligations also apply to notifiers, 
recovery facilities and all other parties to the waste movement. In 
addition, under the red-list control system, facility pre-approval is 
not allowed for shipments of any red-list wastes. Finally, although the 
notification requirements for red-list wastes are the same as those 
applicable to amber-list wastes, tacit consent is not permissible for 
red-list wastes.
    a. Notice and Consent for Specific Shipments. According to the 
Decision, the notifier must provide written notification of intent to 
export to the competent authorities of the concerned countries (i.e., 
exporting, importing and transit) prior to shipment.9 The Agency 
today is requiring such notices to be submitted to EPA 45 days prior to 
the commencement date of the proposed shipment of waste for recovery 
within the OECD.10 EPA considers this period of 45 days as 
appropriate in order to allow time for EPA to review and process the 
notification documents, the Acknowledgement of Receipt to be sent by 
the importing country (as required by the Decision), and the 30-day 
tacit or written consent period (required by the Decision). In 
addition, EPA considers this period of 45 days rather than 60 days 
prior notice set forth in current U.S. regulations, as appropriate for 
today's rule, because within the OECD context notifications and 
consents are often faxed and disseminated in a much more expedient 
manner than in other contexts. EPA, in lieu of the U.S. notifier, will 
forward the export notices to the importing and transit countries.
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    \9\ 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.
    \10\ Note that current U.S. regulations require 60 days prior 
notice. See 40 CFR 262.50-262.60.
---------------------------------------------------------------------------

    The export notification must contain the information specified in 
Appendix 2 of the Decision. Much of this information is already 
required for U.S. exports.
    The OECD notification information includes:
    (1) Serial number or other accepted identifier on the notification 
form;
    (2) Notifier name, address, and telephone and telefax numbers;
    (3) Importing recovery facility name, address, telephone and 
telefax numbers, and technologies employed;
    (4) Consignee name, address, and telephone and telefax numbers if 
the person is different than the owner or operator of the recovery 
facility;
    (5) Intended transporters and/or their agents;
    (6) Country of export and relevant competent authority (the U.S. 
Environmental Protection Agency);
    (7) Countries of transit and relevant competent authorities;
    (8) Country of import and relevant competent authority;
    (9) Statement of whether the shipment is a single-shipment 
notification or a general notification. If general, period of validity 
requested;
    (10) Date foreseen for commencement of transfrontier movement;
    (11) If required by any concerned country, certification that any 
applicable insurance or other financial guarantee is or shall be in 
force covering the transfrontier movement

    (Note: The U.S. does not currently require such financial 
assurance);

    (12) Designation of waste type(s) from the appropriate list (amber 
or red), and the wastes' description(s), probable total quantity of 
each, and an accepted uniform classification code (such as RCRA waste 
codes and UN numbers and OECD waste list codes) 11 for each;
---------------------------------------------------------------------------

    \11\  EPA requires UN numbers and RCRA waste codes in addition 
to the OECD waste list codes to be included per Sec. 262.83(e)(11) 
of today's rule.
---------------------------------------------------------------------------

    (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 Sec. 262.85, are in place and 
are legally enforceable in all concerned countries; and
    (14) Certification that the information is complete and correct to 
the best of his/her knowledge.
    In accordance with the existing Part 262 export regulations, EPA 
will continue to require the notifier to identify facility EPA ID 
numbers, if applicable, and information on the points of entry to and 
departure from all foreign countries.
    In July 1994, the OECD/WMPG finalized two forms: one to be used for 
export notification and the other to accompany the shipment for 
tracking purposes. The OECD/WMPG recommends, but does not require, 
using the forms. EPA also recommends using the forms, but cannot 
require their use until they are approved by OMB, and until EPA 
promulgates such requirement. Before these events occur, EPA believes 
that OECD countries, exporters and importers need to gain experience 
with using the forms to determine if any modifications are needed; 
thus, EPA recommends the forms be used immediately. Notification forms 
are to be submitted to the Office of Enforcement and Compliance 
Assurance, Office of Compliance, Enforcement Planning, Targeting and 
Data Division (2222A), Environmental Protection Agency, 401 M St., 
S.W., Washington, DC 20460, with ``Attention: OECD Export 
Notification'' prominently displayed on the envelope. If the 
notification is complete, EPA will forward a copy to the competent 
authorities of the importing country and any transit country. The 
importing country must acknowledge receipt of the notification within 
three working days. The Acknowledgement of Receipt will be sent by the 
competent authority of the importing country simultaneously to EPA, to 
the notifier, and to the competent authority of any transit country. 
EPA will accept a telephone facsimile of such acknowledgements.
    During the 30-day period after the Acknowledgement of Receipt is 
sent to EPA and the notifier, the competent authority of the importing 
country as well as any transit country may object to the proposed 
movement of wastes. Objections by any of the concerned

[[Page 16301]]

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

[[Page 16302]]

required by the domestic law of those countries. In such cases, the 
foreign importer may ask U.S. notifiers to assume contractual 
obligations requiring compliance with such provisions.

D. Tracking Documents

    The Decision requires that a tracking document must accompany each 
transfrontier shipment of amber-list or red-list waste until it reaches 
its final destination (the designated recovery facility). The purpose 
of the tracking document is to provide pertinent information concerning 
the shipment to any interested entity while the waste is en route.
    All hazardous wastes subject to today's rule (whether amber, red, 
or unlisted, and whether constituting a U.S. import or export) must be 
accompanied by a tracking document that contains all the information in 
Sec. 262.84 of today's regulations. This includes all the information 
required under Sec. 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 Sec. 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 Sec. 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 Secs. 264.12, 265.12, 264.71 and 265.71 of today's rule.
    Where U.S. recovery facilities are receiving wastes from other OECD 
countries that are considered hazardous in that country but not in the 
U.S., today's regulations do not apply for the U.S. recovery facility. 
However, contractual provisions imposed on the foreign exporter for the 
shipment to the U.S. recovery facility may result in certain 
obligations for the facility, such as returning a signed tracking 
document to the notifier and to competent authorities of concerned 
countries. While the U.S. government does not have the authority to 
enforce the requirements of other countries for wastes that are not 
hazardous in the U.S., the U.S. may provide cooperative assistance to 
other OECD countries in their efforts to enforce their own laws, 
including sharing information and investigative support, pursuant to 
domestic and international law.\12\ The owner or operator of the U.S. 
recovery facility should be aware that the exporting country is 
unlikely to consent to the shipment (or future similar shipments) 
absent performance of these duties.
---------------------------------------------------------------------------

    \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. In addition, all persons involved in such contracts or 
arrangements must have appropriate legal status to assume the required 
contractual obligations.
    For the purposes of this rule, a valid contract is one that 
complies with the requirements of Sec. 262.85 of today's rule. Among 
other things, the contracts or equivalent arrangements must identify 
the generator of each type of waste being shipped, all persons who will 
have physical custody or legal control of the waste, and the designated 
recovery facility. In addition, the contracts or equivalent 
arrangements must identify the party who will assume responsibility for 
the waste if alternate management of the waste is necessary. In 
addition, such contracts or arrangements must identify the person 
responsible for obtaining consent for export of the waste to a third 
country, if the need should arise. Contracts or equivalent arrangements 
must also contain provisions requiring each contracting party to comply 
with all applicable requirements of today's regulation. Thus, contracts 
provide a mechanism to ensure that all parties involved in the 
transfrontier movement of waste destined for recovery operations are 
cognizant of and assume appropriate responsibilities for the controls 
placed on the waste shipment.
    If required by the concerned countries, the contract, chain of 
contracts, or equivalent arrangement must also include provisions for 
financial guarantees to provide for alternate recycling, disposal, or 
other means of sound management should the need arise. Currently, the 
U.S. does not impose such a financial requirement. Competent 
authorities of exporting and importing countries may, under domestic 
law, also require the notifier to provide copies of contracts or 
portions thereof. Under today's rulemaking, EPA is not requiring 
routine submission of contracts to EPA. The Agency could, however, 
request such information on a case-by-case basis, if necessary to 
process export/import notices or for enforcement purposes. Upon 
request, such information shall be held as confidential to the extent 
allowed under

[[Page 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\

    \13\ 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.
---------------------------------------------------------------------------

--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 
Sec. 262.84(e) to return signed tracking documents to the foreign 
notifier and competent authorities of the concerned countries;
--Description of the specific financial guarantee mechanism if one 
is required by any concerned country;
--Certification that all U.S. waste handlers in the contract are 
authorized under U.S. law to carry out their transporter or waste 
recovery functions;
--Provision requiring each contracting party to comply with all 
applicable laws of the concerned countries;
--Identification of parties responsible for language translations of 
export notifications or tracking document; and
--Procedures for modifying the contract, particularly to reflect 
future modifications to the Decision.

F. Importers

1. Definition
    There is no definition of ``importer'' in the Decision, the RCRA 
regulations, or the RCRA statute. However, persons importing hazardous 
waste have various responsibilities and duties under EPA's current 
regulations and today's rule, including the contract provisions of 
Sec. 262.85. Transfrontier movements of amber-list or red-list wastes 
must occur under the terms of a valid written contract, or chain of 
contracts, or equivalent arrangements (when the movement occurs between 
parties controlled by the same corporate or legal entity). That 
contract or equivalent arrangement must specify responsibilities of 
each entity handling the waste starting with the notifier and ending 
with the owner or operator of the recovery facility. In addition, 
hazardous waste importers must comply with all applicable requirements 
for generators and transporters pertaining to manifesting in 40 CFR 
Parts 262 and 263 as well as the facility import notification 
requirements in 40 CFR 264.12 and 265.12 if the facility is subject to 
Parts 264 or 265. Also, hazardous waste importers in the U.S. must 
comply with U.S. Customs' rules, provisions under the Toxic Substances 
Control Act concerning the import of chemical substances (see Sec. 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 Sec. 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 Sec. III. D. discussion on tracking 
documents).
    It is important to note that once a hazardous waste enters the 
U.S., that waste and its management are subject not only to the OECD 
procedures for transfrontier movements implemented in today's final 
rule, but also to all other applicable U.S. regulations. Hence, RCRA 
hazardous wastes subject to today's rules must be managed in accordance 
with any applicable generator, transporter, and facility requirements 
(e.g., packaging and labelling, return of manifest to the generator, 
manifest discrepancy, and storage facility requirements) for hazardous 
waste recyclables specified in 40 CFR 261.6 and part 266, in addition 
to the Part 268 standards and requirements under other statutes (e.g., 
TSCA). When EPA (as the competent authority) receives a notification of 
potential export from a foreign exporter, the Agency will review the 
proposed import notice to determine if the waste is destined for a 
recovery facility that is: (1) authorized to manage the specified waste 
in accordance with the facility's RCRA permit or interim status 
requirements; or (2) allowed to receive the waste under U.S. laws and 
regulations but is not required to have a RCRA permit.
    b. Pre-Approval of U.S. Recovery Facilities. The Decision allows 
importing countries to pre-approve specific recovery facilities for 
receiving shipments of certain amber-list wastes (see Sec. III. C. 1. 
c. of today's preamble). EPA has not yet determined whether or how it 
will pre-approve U.S. recovery facilities but has reserved Sec. 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 Sec. 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 Sec. VIII of today's 
preamble).

[[Page 16304]]

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 Sec. 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 Sec. 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 
Sec. 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    EPA also is recodifying in Sec. 262.87 the requirement in 
Sec. 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 Sec. 262.85(f).
    The Agency is requiring individuals who meet the definition of 
primary exporters at 40 CFR 262.51 to continue to maintain specified 
records for at least three years, consistent with current practice and 
RCRA export recordkeeping requirements. These records include, where 
applicable, a copy of each annual report from the three previous years, 
a copy of each written consent obtained from competent authorities of 
concerned countries (in lieu of EPA Acknowledgement of Consent), and a 
copy of each confirmation of delivery by the recovery facility (i.e., 
tracking document). If there is an unresolved enforcement action 
pending or if requested by the Administrator, the record retention 
period may be extended.

IV. OECD Waste Lists and Relationship to RCRA

A. Relationship of OECD Wastes and RCRA Hazardous Wastes

    The full text of the Decision containing the waste lists is 
included in the official record for today's rule, and the green, amber, 
and red waste lists are incorporated by reference in Sec. 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

[[Page 16305]]

wastes may still be required by her/his contract with the foreign 
consignee to comply with notification, consent, and contractual 
requirements imposed by other concerned countries as a condition of 
exporting the waste if one or more of those concerned countries 
considers the waste hazardous. OECD countries are acting within the 
terms of the Decision if they impose such obligations for wastes they 
consider hazardous, and will likely reject any shipment which does not 
comply with these requirements. Thus, if a person is considering 
exporting recyclable waste to an OECD country, that person should 
determine the status of the waste in question (under the national 
procedures of the importing and transit countries) well in advance of 
the proposed shipment date so that no unnecessary delays are 
encountered.
2. Exemptions From the Definition of Solid Waste
    Current RCRA regulations subject recyclable materials to controls 
under Subtitle C of RCRA if they meet the definition of solid waste 
15 and are identified or listed as hazardous. The determination of 
whether a recyclable material is a solid waste, and potentially a 
hazardous waste, depends on the secondary material and the recycling 
activity [see 50 FR 614 (Jan. 4, 1985) and 40 CFR 261.2 for further 
discussion and requirements].
---------------------------------------------------------------------------

    \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 Sec. 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)].
---------------------------------------------------------------------------

    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).
3. Applicability to Hazardous Waste Subject to Special Recycling 
Standards
    EPA's regulatory definition of ``hazardous waste'' includes solid 
wastes that are listed as hazardous waste or that exhibit a 
characteristic of ignitability, corrosivity, reactivity, or toxicity. 
However, there is a very small number of ``hazardous wastes'' that EPA, 
for various reasons, has conditionally exempted in part from domestic 
regulation. Because certain of these wastes are also not subject to 
Federal hazardous waste manifest controls, including but not limited to 
Federal manifest controls, EPA does not consider these wastes to be 
hazardous under U.S. national procedures; therefore, these wastes are 
not subject to the requirements set forth today. Such recyclable wastes 
are discussed briefly below. In order to determine whether a particular 
waste in fact qualifies for special recycling consideration, interested 
persons will need to consult the appropriate RCRA regulations.
    a. Scrap Metal. EPA has determined that scrap metal is exempt from 
regulation as a hazardous waste under Subtitle C when recycled [see 40 
CFR 261.6(a)(3)(iii); 50 FR 624 Jan. 4, 1985]. Because scrap metal is 
also exempt from Federal manifest requirements, it is not considered 
hazardous under U.S. national procedures. Additionally, scrap metal is 
on the OECD green list as a non-hazardous waste.
    b. Lead-Acid Batteries. Persons who generate, transport, or collect 
whole spent lead-acid batteries for reclamation are not subject to the 
Federal manifest requirements. Since spent lead-acid batteries being 
reclaimed are exempt from Federal manifest requirements, they are not 
considered hazardous under U.S. national procedures [see 40 CFR 266.80, 
261.6(a)(2)(iv)]. Thus, persons exporting whole spent lead-acid 
batteries for reclamation are not subject to today's export/import 
requirements. However, they may be required to notify the importing 
country of their intention to export lead-acid batteries, pursuant to 
contracts they execute with foreign consignees, because lead-acid 
batteries are found on the amber list and are considered to be 
hazardous under the national procedures of many OECD countries. 
Additional requirements may also apply per contracts with foreign 
consignees.
4. Wastes Excluded Under 40 CFR 261.4
    Many wastes listed in 40 CFR 261.4 are excluded from some or all 
hazardous waste controls. Because some of these wastes are not defined 
as solid waste [see 40 CFR 261.4(a)], they cannot be defined as 
hazardous waste in accordance with Subtitle C of RCRA. Additionally, 
some of the wastes are specifically excluded from the definition of 
hazardous waste [see 40 CFR 261.4(b)], and therefore, are not subject 
to the requirements of Subtitle C. Because these wastes are not defined 
as hazardous and are not subject to the Federal manifesting procedures, 
among other procedures, they are not covered under the RCRA export/
import requirements set forth today. These exempt wastes may, however, 
be subject to controls imposed by other OECD countries. EPA expects to 
bring additional solid wastes that are currently excluded from the 
definition of hazardous waste under export and import controls in the 
future.
    Below are examples of wastes that are currently identified at 40 
CFR 261.4(a) as excluded from the definition of solid waste. Persons 
interested in determining whether a particular waste is excluded from 
the definition of solid waste will need to consult 40 CFR 261.4(a) 
directly.

--Domestic sewage and any mixture of domestic sewage and other waste 
that passes through a sewer system to a publicly owned treatment works 
for treatment;
--Industrial point source wastewater discharges subject to Sec. 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.


[[Page 16306]]


    The solid wastes that are excluded under 40 CFR 261.4(b) from the 
definition of hazardous waste include the following wastes listed 
below. Persons interested in determining whether a particular waste is 
excluded from the definition of hazardous waste will need to consult 40 
CFR 261.4(b) directly.

--Household waste; 16
---------------------------------------------------------------------------

    \16\ Note 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.
---------------------------------------------------------------------------

--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
--Certain samples collected for the purposes of conducting treatability 
testing and analysis.
5. Hazardous Waste Exempted Under 40 CFR 261.5
    Under 40 CFR 261.5, hazardous wastes generated by conditionally 
exempt small quantity generators (CESQGs) (i.e., generators of no more 
than 100 kilograms per calendar month) are exempt from Subtitle C 
requirements, including manifesting, provided such generators comply 
with the requirements in 40 CFR 261.5. Thus, hazardous waste generated 
by a CESQG or collected from CESQGs is not subject to today's rule. 
These exempt wastes may, however, be subject to controls imposed by 
other OECD countries, if those countries consider the wastes to be 
hazardous.
6. Applicability to Universal Wastes
    Today's rule applies to universal wastes as defined in 40 CFR 273 
or by State requirements analogous to Part 273. Universal wastes are 
defined as hazardous wastes, but are subject to streamlined management 
requirements for collection, accumulation and transportation. For 
instance, universal wastes are not subject to Federal manifesting 
requirements. Universal wastes exported to non-OECD countries are, 
however, subject to certain existing export regulations found in 40 CFR 
part 262 Subpart E. Today's rule amends the export sections of 40 CFR 
part 273 to clarify that universal wastes exported to designated OECD 
countries for purposes of recovery are not subject to 40 CFR 273.20, 
273.40, 273.56, but are instead subject to 40 CFR part 262, Subpart H 
of today's rule. Furthermore, today's rule amends the import section of 
40 CFR part 273 to clarify that universal wastes imported from 
designated OECD countries for purposes of recovery are subject to 40 
CFR 273.70 in addition to 40 CFR part 262, Subpart H of today's rule.
7. Non-RCRA Wastes and Other Regulatory Regimes
    There are other wastes on the OECD lists that may or may not be 
regulated under RCRA in the U.S., but that are controlled under other 
statutes. Such wastes may include PCBs, asbestos, and some chlorinated 
dioxins and chlorinated furans.17 Because these materials 
themselves are not hazardous wastes as defined by RCRA, in most cases, 
they are not subject to today's requirements (although other OECD 
countries may subject them to controls). If, however, PCBs, asbestos, 
chlorinated dioxins, or chlorinated furans are constituents in a waste 
or waste mixture that is a RCRA listed or characteristic hazardous 
waste that is subject to Federal manifest requirements under RCRA, 
these wastes are subject to all applicable export and import 
requirements under RCRA, including today's regulations. (As previously 
noted, EPA may, in the future, identify wastes under other statutes 
that are subject to the OECD Decision).
---------------------------------------------------------------------------

    \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)].
---------------------------------------------------------------------------

    The Toxic Substances Control Act (TSCA) generally addresses the 
regulation of materials containing PCBs [see 15 U.S.C. 
Sec. 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).

[[Page 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.

VII. Relationship to Other Programs

    Under Section 13 of the Toxic Substances Control Act (TSCA), 
importers of ``chemical substances and mixtures'' must certify 
compliance with TSCA at the point of entry into the United States (see 
40 CFR 707.20). Some chemical substances or mixtures as defined by TSCA 
also can be hazardous wastes as defined by RCRA. Therefore, if a 
hazardous waste as defined by RCRA meets the definition of a chemical 
substance or mixture under TSCA, importers 18 must certify 
compliance with TSCA in accordance with 40 CFR 707.20. This TSCA 
compliance certification provision requires all importers of chemical 
substances and mixtures to certify that their shipments are in 
compliance with all applicable rules or orders under TSCA [see 40 CFR 
707.20(b)(2)(i)]. Compliance with TSCA may require, among other things, 
that the substances are not banned from importation, that they are 
listed in the TSCA Inventory of chemical substances, and that the 
substances are not being imported for a ``significant new use'' without 
first providing notice to EPA at least 90 days prior to the import. If 
the shipment (including a hazardous waste) contains no material covered 
by TSCA (e.g., pesticides), then the importer must certify that the 
substances in the shipment are not subject to TSCA [see 40 CFR 
707.20(b)(2)(ii)].
---------------------------------------------------------------------------

    \18\ Under TSCA, an importer is considered the ``manufacturer.'' 
The term ``manufacture'' is defined in Sec. 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) * * *.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \19\ 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 
111.11(a)). For a partnership, association, or corporation to act as 
a Customs broker, at least one member or officer must be a licensed 
Customs broker, which requires U.S. citizenship [19 CFR 111.11(b) 
and (c)].
---------------------------------------------------------------------------

VIII. Future Rulemaking

    This Decision is a negotiated international agreement that provides 
nations with some limited flexibility to implement the Decision within 
their unique domestic waste management schemes. As such, certain 
definitions and procedures in the Decision are less explicit than 
current RCRA regulations. It may be appropriate in the future to revise 
today's regulations to address additional elements of the Decision. 
Some of the elements of the Decision that the Agency may address in 
future regulations include:

--Notification and tracking documents. The OECD/WMPG developed 
recommended, standardized notification and tracking documents for 
shipments of amber-list and red-list wastes. Once the notification and 
tracking documents have been in use, they may need to be modified 
according to experience by the member countries. When use of the forms 
becomes mandatory by the OECD, the Agency will amend its regulations to 
require their use.
--Pre-approval of recovery facilities. The Decision allows importing 
countries to pre-approve recovery facilities. The Agency has not yet 
decided whether to pre-approve recovery facilities and, if so, whether 
only RCRA permitted or interim status recovery facilities should 
qualify for pre-approval or whether pre-approval criteria can feasibly 
be established for recovery facilities currently exempt from RCRA 
permit or technical standards. The Agency has already received a 
proposal for such criteria from the International Precious Metals 
Institute (IPMI). IPMI's proposal is included in the public docket for 
today's rule.
--Recognized traders. Consistent with the Decision, today's regulations 
set forth certain responsibilities for

[[Page 16308]]

recognized traders of hazardous wastes destined for recovery within the 
OECD. The Agency will be further assessing the relationship of 
recognized traders, as defined in today's regulations, to waste brokers 
and whether additional regulations are needed to clarify the scope of 
coverage and associated responsibilities.

    As the Agency gains experience implementing today's regulations, it 
may identify additional issues requiring further regulatory action.

IX. Regulatory Impact Analysis

A. Executive Order 12866

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

B. Regulatory Flexibility Act

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

C. Paperwork Reduction Act

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

List of Subjects

40 CFR Part 9

    Environmental protection, Information collection, OMB approval, 
Paperwork reduction.

40 CFR Part 260

    Administrative practice and procedure, Confidential business 
information, Hazardous waste.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping.

40 CFR Part 262

    Exports, Hazardous waste, Imports, Incorporation by reference, 
International agreements, Labeling, Manifest,

[[Page 16309]]

Packaging and containers, Recycling, Reporting and recordkeeping 
requirements.

40 CFR Part 263

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

40 CFR Part 264

    Hazardous waste, Imports, Manifest, Recordkeeping, Recycling.

40 CFR Part 265

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

40 CFR Part 266

    Precious metals, Recycling.

40 CFR Part 273

    Hazardous waste, Recycling, Universal waste.

    Dated: November 29, 1995.

Carol M. Browner,
Administrator.

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

PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT

    1. In Part 9:
    a. The authority citation for part 9 continues to read as follows:

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

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


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                            OMB control 
                     40 CFR citation                            No.     
------------------------------------------------------------------------
Public Information:                                                     
  Part 2, subpart B.....................................       2050-0143
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

    2. In part 260:
    a. The authority citation continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

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


Sec. 260.2  Availability of information; confidentiality of 
information.

* * * * *
     (b) Any person who submits information to EPA in accordance with 
parts 260 through 266 and 268 of this chapter may assert a claim of 
business confidentiality covering part or all of that information by 
following the procedures set forth in Sec. 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 
Sec. 262.53(a) and Sec. 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:


Sec. 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 Sec. 262.58(a)(1)) for purpose of 
recovery is subject to the requirements of 40 CFR part 262, subpart H, 
if it is subject to either the Federal manifesting requirements of 40 
CFR Part 262, to the universal waste management standards of 40 CFR 
Part 273, or to State requirements analogous to 40 CFR Part 273.
* * * * *

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    4. The authority citation for part 262 is revised to read as 
follows:

    Authority: 42 U.S.C 6906, 6912, 6922, 6923, 6925, 6937, and 
6938.

    5. Section 262.10 is amended by redesignating paragraphs (d), (e), 
(f), and (g) as (e), (f), (g), and (h) respectively and adding a new 
paragraph (d) to read as follows:


Sec. 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 Sec. 262.58(a)(1) for recovery must comply with 
subpart H of this part.
* * * * *
    6. Section 262.53(b) is revised to read as follows:


Sec. 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:


Sec. 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

[[Page 16310]]

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:


Sec. 262.58  International agreements.

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


Sec. 262.80  Applicability.

    (a) The requirements of this subpart apply to imports and exports 
of wastes that are considered hazardous under U.S. national procedures 
and are destined for recovery operations in the countries listed in 
Sec. 262.58(a)(1). A waste is considered hazardous under U.S. national 
procedures if it meets the Federal definition of hazardous waste in 40 
CFR 261.3 and it is subject to either the Federal manifesting 
requirements at 40 CFR Part 262, Subpart B, to the universal waste 
management standards of 40 CFR Part 273, or to State requirements 
analogous to 40 CFR Part 273.
    (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.


Sec. 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 
Sec. 262.58(a)(1) and (a)(2) other than the exporting or importing 
country across which a transfrontier movement of wastes is planned or 
takes place.
    (e) Exporting country means any designated OECD member country in 
Sec. 262.58(a)(1) from which a transfrontier movement of wastes is 
planned or has commenced.
    (f) Importing country means any designated OECD country in 
Sec. 262.58(a)(1) to which a transfrontier movement of wastes is 
planned or takes place for the purpose of submitting the wastes to 
recovery operations therein.
    (g) Notifier means the person under the jurisdiction of the 
exporting country who has, or will have at the time the planned 
transfrontier movement commences, possession or other forms of legal 
control of the wastes and who proposes their transfrontier movement for 
the ultimate purpose of submitting them to recovery operations. When 
the United States (U.S.) is the exporting country, notifier is 
interpreted to mean a person domiciled in the U.S.
    (h) OECD area means all land or marine areas under the national 
jurisdiction of any designated OECD member country in Sec. 262.58. When 
the regulations refer to shipments to or from an OECD country, this 
means OECD area.
    (i) Recognized trader means a person who, with appropriate 
authorization of concerned countries, acts in the role of principal to 
purchase and subsequently sell wastes; this person has legal control of 
such wastes from time of purchase to time of sale; such a person may 
act to arrange and facilitate transfrontier movements of wastes 
destined for recovery operations.
    (j) Recovery facility means an entity which, under applicable 
domestic law, is operating or is authorized to operate in the importing 
country to receive wastes and to perform recovery operations on them.
    (k) Recovery operations means activities leading to resource 
recovery, recycling, reclamation, direct re-use or alternative uses as 
listed in Table 2.B of the Annex of OECD Council Decision 
C(88)90(Final) of 27 May 1988, (available from the Environmental 
Protection Agency, RCRA Information Center (RIC), 1235 Jefferson-Davis 
Highway, first floor, Arlington, VA 22203 (Docket # F-94-IEHF-FFFFF) 
and the Organisation for Economic Co-operation and Development, 
Environment Direcorate, 2 rue Andre Pascal, 75775 Paris Cedex 16, 
France) which include:

R1  Use as a fuel (other than in direct incineration) or other means to 
generate energy
R2  Solvent reclamation/regeneration
R3  Recycling/reclamation of organic substances which are not used as 
solvents
R4  Recycling/reclamation of metals and metal compounds
R5  Recycling/reclamation of other inorganic materials
R6  Regeneration of acids or bases
R7  Recovery of components used for pollution control
R8  Recovery of components from catalysts
R9  Used oil re-refining or other reuses of previously used oil

[[Page 16311]]

R10  Land treatment resulting in benefit to agriculture or ecological 
improvement
R11  Uses of residual materials obtained from any of the operations 
numbered R1-R10
R12  Exchange of wastes for submission to any of the operations 
numbered R1-R11
R13  Accumulation of material intended for any operation in Table 2.B

    (l) Transfrontier movement means any shipment of wastes destined 
for recovery operations from an area under the national jurisdiction of 
one OECD member country to an area under the national jurisdiction of 
another OECD member country.


Sec. 262.82  General conditions.

    (a) Scope. The level of control for exports and imports of waste is 
indicated by assignment of the waste to a green, amber, or red list and 
by U.S. national procedures as defined in Sec. 262.80(a). The green, 
amber, and red lists are incorporated by reference in Sec. 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 Sec. 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 Sec. 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 defined in Sec. 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 Sec. 262.80(a), such wastes may move 
as though they appeared on the green list.
    (b) General conditions applicable to transfrontier movements of 
hazardous waste.
    (1) The waste must be destined for recovery operations at a 
facility that, under applicable domestic law, is operating or is 
authorized to operate in the importing country;
    (2) The transfrontier movement must be in compliance with 
applicable international transport agreements; and

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

    (3) Any transit of waste through a non-OECD member country must be 
conducted in compliance with all applicable international and national 
laws and regulations.
    (c) Provisions relating to re-export for recovery to a third 
country.
    (1) Re-export of wastes subject to the amber-list control system 
from the U.S., as the importing country, to a third country listed in 
Sec. 262.58(a)(1) may occur only after a notifier in the U.S. provides 
notification to and obtains consent of the competent authorities in the 
third country, the original exporting country, and new transit 
countries. The notification must comply with the notice and consent 
procedures in Sec. 262.83 for all concerned countries and the original 
exporting country. The competent authorities of the original exporting 
country as well as the competent authorities of all other concerned 
countries have 30 days to object to the proposed movement.
    (i) The 30-day period begins once the competent authorities of both 
the initial exporting country and new importing country issue 
Acknowledgements of Receipt of the notification.
    (ii) The transfrontier movement may commence if no objection has 
been lodged after the 30-day period has passed or immediately after 
written consent is received from all relevant OECD importing and 
transit countries.
    (2) Re-export of waste subject to the red-list control system from 
the original importing country to a third country listed in 
Sec. 262.58(a)(1) may occur only following notification of the 
competent authorities of the third country, the original exporting 
country, and new transit countries by a notifier in the original 
importing country in accordance with Sec. 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 Sec. 262.58(a)(1), notification to and 
consent of the competent authorities of the original OECD member 
country of export and any OECD member countries of transit is required 
as specified in paragraphs (c)(1) and (c)(2) of this section in 
addition to compliance with all international agreements and 
arrangements to which the first importing OECD member country is a 
party and all applicable regulatory requirements for exports from the 
first importing country.


Sec. 262.83  Notification and consent.

    (a) Applicability. Consent must be obtained from the competent 
authorities of the relevant OECD importing and transit countries prior 
to exporting hazardous waste destined for recovery operations subject 
to this Subpart. Hazardous wastes subject to amber-list controls are 
subject to the requirements of paragraph (b) of this section; hazardous 
wastes subject to red-list controls are subject to the requirements of 
paragraph (c) of this section; and wastes not identified on any list 
are subject to the requirements of paragraph (d) of this section.
    (b) Amber-list wastes. The export from the U.S. of hazardous wastes 
as described in Sec. 262.80(a) that appear on the amber list is 
prohibited unless the notification and consent requirements of 
paragraph (b)(1) or paragraph (b)(2) of this section are met.
    (1) Transactions requiring specific consent:
    (i) Notification. At least 45 days prior to commencement of the 
transfrontier

[[Page 16312]]

movement, the notifier must provide written notification in English of 
the proposed transfrontier movement to the Office of Enforcement and 
Compliance Assurance, Office of Compliance, Enforcement Planning, 
Targeting and Data Division (2222A), Environmental Protection Agency, 
401 M St., SW., Washington, DC 20460, with the words ``Attention: OECD 
Export Notification'' prominently displayed on the envelope. This 
notification must include all of the information identified in 
paragraph (e) of this section. In cases where wastes having similar 
physical and chemical characteristics, the same United Nations 
classification, and the same RCRA waste codes are to be sent 
periodically to the same recovery facility by the same notifier, the 
notifier may submit one notification of intent to export these wastes 
in multiple shipments during a period of up to one year.
    (ii) Tacit consent. If no objection has been lodged by any 
concerned country (i.e., exporting, importing, or transit countries) to 
a notification provided pursuant to paragraph (b)(1)(i) of this section 
within 30 days after the date of issuance of the Acknowledgment of 
Receipt of notification by the competent authority of the importing 
country, the transfrontier movement may commence. Tacit consent expires 
one calendar year after the close of the 30 day period; renotification 
and renewal of all consents is required for exports after that date.
    (iii) Written consent. If the competent authorities of all the 
relevant OECD importing and transit countries provide written consent 
in a period less than 30 days, the transfrontier movement may commence 
immediately after all necessary consents are received. Written consent 
expires for each relevant OECD importing and transit country one 
calendar year after the date of that country's consent unless otherwise 
specified; renotification and renewal of each expired consent is 
required for exports after that date.
    (2) Shipments to facilities 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)(1)(i) of this section. This information must 
be sent to the Office of Enforcement and Compliance Assurance, Office 
of Compliance, Enforcement Planning, Targeting and Data Division 
(2222A), Environmental Protection Agency, 401 M St., SW., Washington, 
DC 20460, with the words ``OECD Export Notification--Pre-approved 
Facility'' prominently displayed on the envelope.
    (ii) Shipments may commence after the notification required in 
paragraph (b)(1)(i) of this section has been received by the competent 
authorities of all concerned countries, unless the notifier has 
received information indicating that the competent authorities of one 
or more concerned countries objects to the shipment.
    (c) Red-list wastes. The export from the U.S. of hazardous wastes 
as described in Sec. 262.80(a) that appear on the red list is 
prohibited unless notice is given pursuant to paragraph (b)(1)(i) of 
this section and the notifier receives written consent from the 
importing country and any transit countries prior to commencement of 
the transfrontier movement.
    (d) Unlisted wastes. Wastes not assigned to the green, amber, or 
red list that are considered hazardous under U.S. national procedures 
as defined in Sec. 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 Sec. 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.


Sec. 262.84  Tracking document.

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

[[Page 16313]]

    (b) The tracking document must include all information required 
under Sec. 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:
    1. All necessary consents have been received; OR
    2. The shipment is directed at a recovery facility within the 
OECD area and no objection has been received from any of the 
concerned countries within the 30 day tacit consent period; OR
    3. The shipment is directed at a recovery facility pre-
authorized for that type of waste within the OECD area; such an 
authorization has not been revoked, and no objection has been 
received from any of the concerned countries.

(delete sentences that are not applicable)

Name:------------------------------------------------------------------
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.


Sec. 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 Sec. 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.


Sec. 262.86  Provisions relating to recognized traders.

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


Sec. 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

[[Page 16314]]

primary exporter in Sec. 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 
Sec. 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 Sec. 262.51 must file an exception report in lieu 
of the requirements of Sec. 262.42 with the Administrator if any of the 
following occurs:
    (1) He has not received a copy of the tracking documentation signed 
by the transporter stating point of departure of the waste from the 
United States, within forty-five (45) days from the date it was 
accepted by the initial transporter;
    (2) Within ninety (90) days from the date the waste was accepted by 
the initial transporter, the notifier has not received written 
confirmation from the recovery facility that the hazardous waste was 
received;
    (3) The waste is returned to the United States.
    (c) Recordkeeping. (1) Persons who meet the definition of primary 
exporter in Sec. 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.


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


Sec. 262.89  OECD Waste Lists.

    (a) General. For the purposes of this Subpart, a waste is 
considered hazardous under U.S. national procedures, and hence subject 
to this Subpart, if the waste:
    (1) Meets the Federal definition of hazardous waste in 40 CFR 
261.3; and
    (2) Is subject to either the Federal RCRA manifesting requirements 
at 40 CFR part 262, subpart B, to the universal waste management 
standards of 40 CFR part 273, 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 Sec. 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:


Sec. 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

[[Page 16315]]

to State requirements analogous to 40 CFR part 273, that is being 
imported from or exported to any of the countries listed in 40 CFR 
262.58(a)(1) for purposes of recovery is subject to this Subpart and to 
all other relevant requirements of subpart H of 40 CFR part 262, 
including, but not limited to, 40 CFR 262.84 for tracking documents.
    12. Section 263.20(a) is revised to read as follows:


Sec. 263.20  The manifest system.

    (a) A transporter may not accept hazardous waste from a generator 
unless it is accompanied by a manifest signed in accordance with the 
provisions of 40 CFR 262.20. In the case of exports other than those 
subject to subpart H of 40 CFR part 262, a transporter may not accept 
such waste from a primary exporter or other person if he knows the 
shipment does not conform to the EPA Acknowledgement of Consent; and 
unless, in addition to a manifest signed in accordance with the 
provisions of 40 CFR 262.20, such waste is also accompanied by an EPA 
Acknowledgement of Consent which, except for shipment by rail, is 
attached to the manifest (or shipping paper for exports by water (bulk 
shipment)). For exports of hazardous waste subject to the requirements 
of subpart H of 40 CFR part 262, a transporter may not accept hazardous 
waste without a tracking document that includes all information 
required by 40 CFR 262.84.
* * * * *

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

    13a. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a) 6924, and 6925, 13b. Section 
264.12 is amended by redesignating paragraph (a) as paragraph (a)(1) 
and by adding a paragraph (a)(2) to read as follows:


Sec. 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:


Sec. 264.71  Use of manifest system.

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

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

    15. The authority citation for part 265 is revised to read as 
follows:

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

    16. Section 265.12 is amended by redesignating paragraph (a) as 
paragraph (a)(1) and by adding paragraph (a)(2) to read as follows:


Sec. 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:


Sec. 265.71  Use of the manifest system.

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

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

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

    Authority: 42 U.S.C 1006, 2002(a), 3004, 3014, 6905, 6906, 6912, 
6922, 6923, 6924, 6925, 6934, and 6937.

    19. Section 266.70 is amended by adding paragraph (b)(3) and by 
adding the word ``and'' at the end of paragraph (b)(2) to read as 
follows:


Sec. 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 
Sec. 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 Sec. 273.20 is revised to read as 
follows:


Sec. 273.20  Exports.

    A small quantity handler of universal waste who sends universal 
waste to a foreign destination other than to those OECD countries 
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject 
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
    21. The introductory text for Sec. 273.40 is revised to read as 
follows:

[[Page 16316]]

Sec. 273.40  Exports.

    A large quantity handler of universal waste who sends universal 
waste to a foreign destination other than to those OECD countries 
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject 
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
    22. The introductory text for Sec. 273.56 is revised to read as 
follows:


Sec. 273.56  Exports.

    A universal waste transporter transporting a shipment of universal 
waste to a foreign destination other than to those OECD countries 
specified in 40 CFR 262.58(a)(1) (in which case the transporter is 
subject to the requirements of 40 CFR part 262, subpart H) may not 
accept a shipment if the transporter knows the shipment does not 
conform to the EPA Acknowledgment of Consent. In addition the 
transporter must ensure that:
* * * * *
    23. Section 273.70 is amended by revising the introductory text and 
by adding a new paragraph (d) to read as follows:


Sec. 273.70  Imports.

    Persons managing universal waste that is imported from a foreign 
country into the United States are subject to the applicable 
requirements of this part, immediately after the waste enters the 
United States, as indicated in paragraphs (a) through (c) of this 
section:
* * * * *
    (d) Persons managing universal waste that is imported from an OECD 
country as specified in 40 CFR 262.58(a)(1) are subject to paragraphs 
(a) through (c) of this section, in addition to the requirements of 40 
CFR part 262, subpart H.

[FR Doc. 96-8087 Filed 4-11-96; 8:45 am]
BILLING CODE 6560-50-P