# Hazardous Waste Export-Import Revisions > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-25348 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** October 19, 2015 - **Citation:** 80 FR 63284 ## Text ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 260, 261, 262, 263, 264, 265, 266, 267, 271 and 273 [EPA-HQ-RCRA-2015-0147; FRL-9926-94-OSWER] RIN 2050-AG77 Hazardous Waste Export-Import Revisions AGENCY: Environmental Protection Agency. ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency (EPA) is proposing to amend our existing regulations in regards to the export and import of hazardous wastes from and into the United States. EPA is proposing these changes to: Provide greater protection to human health and the environment by making existing export and import related requirements more consistent with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD); enable electronic submittal of all export and import-related documents ( e.g., export notices, export annual reports); and enable electronic validation of consent in the Automated Export System (AES) for export shipments subject to RCRA export consent requirements prior to exit. DATES: Comments must be received on or before December 18, 2015. Under the Paperwork Reduction Act, comments on the information collection provisions are best assured of having full effect if the Office of Management and Budget (OMB) receives a copy of your comments on or before November 18, 2015. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-RCRA-2015-0147, to the Federal eRulemaking Portal: http://www.regulations.gov . Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets . FOR FURTHER INFORMATION CONTACT: Laura Coughlan, Materials Recovery and Waste Management Division, Office of Resource Conservation and Recovery (5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (703) 308-0005; email: coughlan.laura@epa.gov . SUPPLEMENTARY INFORMATION: The information presented in this preamble is organized as follows: I. General Information A. List of Acronyms Used in This Proposed Rule B. What are the statutory authorities for this proposed rule? C. Does this proposed rule apply to me? D. What is the purpose of this proposed rule? E. Incorporation by Reference (IBR) II. Background A. RCRA General Hazardous Waste Export and Import Requirements B. RCRA OECD Regulations C. RCRA Hazardous Waste Export Integration With ITDS D. RCRA Hazardous Waste Export and Import Regulations and Executive Order 13563 for the Retrospective Review of Existing Regulations III. Summary of This Proposed Rule A. Changes to Section 260.10 B. Changes to Section 260.11(g)(1) C. Changes to Sections 261.4(d) and 261.4(e) D. Changes to Section 261.6(a) E. Changes to Section 261.39(a)(5) F. Changes to Section 262.10(d) G. Changes to Section 262.12 H. Changes to Section 262.41(b) I. Changes to 40 CFR Part 262 Subpart E J. Changes to 40 CFR Part 262 Subpart F K. Changes to 40 CFR Part 262 Subpart H L. Changes to the Appendix to Part 262 M. Conforming Changes to Parts 263 Through 267, 271, and 273 IV. Costs and Benefits of the Proposed Rule A. Introduction B. Analytical Scope C. Cost Impacts D. Benefits V. State Authorization A. Applicability of Rules in Authorized States B. Effect on State Authorization VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Executive Order 13659: Streamlining the Export/Import Process for America's Businesses VII. 2013 CEC Report on Spent Lead Acid Batteries and Related Analysis I. General Information A. List of Acronyms Used in This Proposed Rule Acronym Meaning ACE Automated Commercial Environment. AES Automated Export System. AOC Acknowledgment of Consent (issued by EPA). CBI Confidential Business Information. CBP United States Customs and Border Protection. CDX Central Data Exchange. CEC Commission for Environmental Cooperation. CERCLA Comprehensive Environmental Response, Compensation, and Liability Act. CFR Code of Federal Regulations. CROMERR Cross-Media Electronic Reporting Regulation. CRT Cathode Ray Tube. CY Calendar Year. EPA United States Environmental Protection Agency. FR Federal Register. FTR U.S. Census Bureau's Foreign Trade Regulations. HSWA Hazardous and Solid Waste Amendments. ICR Information Collection Request. ITDS International Trade Data System. ITN Internal Transaction Number (issued by AES). LAB Lead-Acid Battery. NAICS North American Industrial Classification System. NCEDE Notice and Consent Electronic Data Exchange. NTTAA National Technology Transfer and Advancement Act. NAFTA North American Free Trade Agreement. OECD Organization for Economic Cooperation and Development. OMB Office of Management and Budget. OSWER Office of Solid Waste and Emergency Response. RCRA Resource Conservation and Recovery Act. RFA Regulatory Flexibility Act. SIC Standard Industrial Classification. SLAB Spent Lead-Acid Battery. SBREFA Small Business Regulatory Enforcement Fairness Act. TRI Toxics Release Inventory. UMRA Unfunded Mandates Reform Act. B. What are the statutory authorities for this proposed rule? The authority to propose this rule is found in sections 1002, 2002(a), 3001-3004, and 3017 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act (RCRA), and as amended by the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et. seq. , 6912, 6921-6924, and 6938. C. Does this proposed rule apply to me? The revisions to export and import requirements in this proposed rule generally affect four (4) groups: (1) All persons who export or import (or arrange for the export or import) hazardous waste for recycling or disposal, including those hazardous wastes subject to the alternate management standards for (a) universal waste for recycling or disposal, (b) spent lead-acid batteries (SLABs) being shipped for reclamation, (c) industrial ethyl alcohol being shipped for reclamation, (d) hazardous waste samples of more than 25 kilograms being shipped for waste characterization or treatability studies, and (e) hazardous recyclable materials being shipped for precious metal recovery; (2) all recycling and disposal facilities who receive imports of such hazardous wastes for recycling or disposal; (3) all persons who export or arrange for the export of conditionally excluded cathode ray tubes being shipped for recycling; and (4) all persons who transport any export and import shipments described above. Potentially affected entities may include, but are not limited to: NAICS code NAICS description 211 Oil and Gas Extraction. 212 Mining (except Oil and Gas). 213 Support Activities for Mining. 311 Food Manufacturing. 324 Petroleum and Coal Products Manufacturing. 325 Chemical Manufacturing. 326 Plastics and Rubber Products Manufacturing. 327 Nonmetallic Mineral Product Manufacturing. 331 Primary Metal Manufacturing. 332 Fabricated Metal Product Manufacturing. 333 Machinery Manufacturing. 334 Computer and Electronic Product Manufacturing. 335 Electrical Equipment, Appliance, and Component Manufacturing. 336 Transportation Equipment Manufacturing. 339 Miscellaneous Manufacturing. 423 Merchant Wholesalers, Durable Goods. 424 Merchant Wholesalers, Nondurable Goods. 441 Motor Vehicle and Parts Dealers. 482 Rail transportation. 483 Water transportation. 484 Truck transportation. 488 Support Activities for Transportation. 531 Real Estate. 541 Professional, Scientific, and Technical Services. 561 Administrative and Support Services. 562 Waste Management and Remediation Services. 721 Accommodation. 924 Administration of Environmental Quality Programs. The lists of potentially affected entities in the above tables may not be exhaustive. The Agency's aim is to provide a guide for readers regarding those entities that potentially could be affected by this action. However, this action may affect other entities not listed in these tables. If you have questions regarding the applicability of this proposed rule to a particular entity, consult the person listed in the preceding section entitled FOR FURTHER INFORMATION CONTACT . D. What is the purpose of this proposed rule? EPA is proposing certain amendments to the current RCRA regulations governing imports and exports of hazardous waste and certain other materials in part 262 in order improve protection of public health and the environment by achieving greater consistency in both procedures and documentation. Specifically, the proposed revisions of the existing regulations will consolidate and streamline some of the requirements and enhance the documentation of the movement and disposition of hazardous wastes and other materials, improving the Agency's ability to monitor compliance with applicable legal requirements; will enable regulated parties and the government to benefit from the electronic submission of data; and will consolidate the notification process with foreign governments for efficiency under a unified regulation, consistent with the requirements of the Organization for Economic Cooperation and Development Council Decision (OECD) controlling transboundary movements of hazardous waste. The proposed rule is one of the Agency's priority actions under its plan for periodic retrospective reviews of existing regulations, as called for by Executive Order 13563. Finally, certain other revisions to the regulations are needed in order to fulfill the direction set forth in Executive Order 13659 concerning the electronic management of international trade data by the U.S. Government as part of the International Trade Data System (ITDS). EPA's determination that some revisions to the import/export regulations are needed is bolstered by the 2013 Commission for Environmental Cooperation (CEC) report and its recommendations. The CEC report found that U.S. net exports of spent lead acid batteries (SLABs) to Mexico for recycling had increased by an estimated 449-525 percent, and that there were significant discrepancies between summary data on export shipments reported to the EPA annually and individual export shipment data collected under U.S. Census Bureau (Census) authority. Based on its findings, the CEC report recommended that the U.S. require the use of manifests for each international shipment of SLABs, require exporters to obtain a certificate of recovery from foreign recycling facilities, explore establishing an electronic export annual report, and better share import and export data between environmental and border agencies. For a more complete discussion of the report and EPA's related analysis, see Section VII. EPA is particularly interested in input on this proposed action from persons who import and export hazardous waste, including those persons importing or exporting hazardous wastes managed under the special management standards in 40 CFR part 266 ( e.g., spent lead acid batteries) and 40 CFR part 273 ( e.g., universal waste batteries, universal waste mercury lamps). E. Incorporation by Reference (IBR) This action is proposing to update the IBR source material in § 260.11(g)(1) for the OECD amber and green waste lists, and their associated waste codes, which are used to identify a waste. The OECD waste lists, entitled “List of Wastes Subject to the Green Control Procedures” and “List of Wastes Subject to Amber Control Procedures,” are set forth in Appendix 3 and Appendix 4, respectively, of the OECD Decision. The waste lists from the OECD Decision have been consolidated and incorporated in Annex B and C of the 2009 “Guidance Manual for the Implementation of Council Decision C(2001)107/FINAL, as Amended, on the Control of Transboundary Movements of Wastes Destined for Recovery Operations.” Section 260.11(g)(1) currently references material from an old 1992 OECD Council Decision, C(92)39/FINAL. We are proposing to update that reference to the most current listing, which is the 2009 “Guidance Manual for the Implementation of Council Decision C(2001)107/FINAL, as Amended, on the Control of Transboundary Movements of Wastes Destined for Recovery Operations.” Sections 262.82(a), 262.83(b)(1)(xi), 262.83(d)(2)(vi), 262.83(g)(4)(iii), 262.84(b)(1)(xi), and 262.84(d)(2)(vi) will reference the IBR material in the proposed § 260.11(g)(1). EPA does not believe this proposed change will impact the regulated community, since the regulated community was already using the most current listings from the OECD as this IBR material is currently in the regulations under Section 262.89(d), for which this action proposes to redirect the citations to 260.11(g)(1). The material is available for inspection at: The U.S. Environmental Protection Agency, Docket Center Public Reading Room, EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC 20004 (Docket # EPA-HQ-RCRA-2015-0147) and may be obtained from the Organization for Economic Cooperation and Development, Environment Directorate, 2 rue André Pascal, F-75775 Paris Cedex 16, France. The material is also available online (for free) at http://www.oecd.org/env/waste/42262259.pdf . To contact the EPA Docket Center Public Reading Room, call (202) 566-1744. To contact the OECD, call +33 (0) 1 45 24 81 67. II. Background A. RCRA General Hazardous Waste Export and Import Requirements EPA's general hazardous waste export and import regulations were originally promulgated in 1986 and are currently found in 40 CFR part 262 subparts E and F. 40 CFR part 262 subpart E established export requirements for manifested hazardous waste. These requirements include submitting an export notice to EPA, receiving EPA's Acknowledgement of Consent (AOC) letter documenting consent by the country of import and any countries of transit, RCRA manifest related requirements for export shipments, submittal of export annual reports summarizing export shipments made in the previous calendar year, and recordkeeping. 40 CFR part 262 Subpart F established manifest related requirements for hazardous waste import shipments. Conforming requirements related to the AOC letter and the RCRA manifest were added to Parts 263 ( i.e., for transporters), 264 and 265 ( i.e., for treatment, storage, and disposal facilities). While some limited changes have been made since 1986, the requirements related to individual shipment tracking remain solely based on RCRA manifest requirements. B. RCRA OECD Regulations 1. What is the OECD? The OECD is an international organization established in 1960 to assist Member countries in achieving sustainable economic growth, employment, and an increased standard of living, while simultaneously ensuring the protection of human health and the environment. OECD Member countries are concerned with a host of international socio-economic and political issues, including environmental issues. To address these issues, the OECD Council may negotiate Council Decisions, which, except as otherwise provided, are international agreements that create legally-binding commitments on the United States and other OECD member countries under the terms Article 5 of the Convention on the Organisation for Economic Co-operation and Development (OECD Convention). A series of Council decisions, collectively referred to here as the “Amended 2001 OECD Decision,” addresses the transboundary movement of wastes, which is the subject of this proposed rule. Of the thirty-four Member countries of the OECD, all but Chile participate in the Amended 2001 OECD Decision. These participating Member countries are as follows: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Slovenia, South Korea, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. The OECD country Web site for each Member country may be found at http://www.oecd.org/infobycountry/ . 2. What OECD Decisions formed the basis for the existing regulations in 40 CFR part 262, subpart H? On March 30, 1992, the OECD Council adopted the “Decision of the Council C(92)39/FINAL Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery” (hereinafter referred to as the 1992 Decision), which applied to the transboundary movements of wastes destined for recovery operations between OECD Member countries. The 1992 Decision provided a framework for OECD Member countries to control the transboundary movement of recoverable wastes in an environmentally sound and economically efficient manner. These revisions were implemented within RCRA in the April 12, 1996 direct final rule (61 FR 16290) that established 40 CFR part 262 subpart H (hereinafter referred to as OECD regulations or Subpart H regulations), and added a section to 40 CFR part 262 subpart E to detail when exporters and importers needed to comply with 40 CFR part 262 subpart H in lieu of complying with 40 CFR part 262 subpart E or F. As with the general RCRA export and import requirements, conforming requirements for exports and imports required to comply with 40 CFR part 262 subpart H were added to 40 CFR parts 263-265. On June 14, 2001, the OECD Council amended the 1992 Decision by adopting “Revision of Decision C(92)30/FINAL on the Control of Transboundary Movement of Wastes Destined for Recovery Operations”(hereafter referred to as the 2001 OECD Decision). The goal of the 2001 OECD Decision was to harmonize the procedures and requirements of the OECD with those of the Basel Convention 1 and to eliminate duplicative activities between the two international organizations as much as practical. These changes included significant revisions to the original established framework (such as reducing the levels of control from a three-tiered system to a two-tiered system), while also adding entirely new provisions (for example, the new confirmation of recovery requirement). Subsequent to the 2001 OECD Decision, an addendum, C(2001)107/ADD1 (hereafter referred to as the 2001 OECD Addendum), which consists of revised versions of the notification and movement documents and the instructions to complete them, was adopted by the OECD Council on February 28, 2002. The addendum was incorporated into the 2001 OECD Decision as section C of Appendix 8, and the combined version was issued in May 2002 as C(2001)107/FINAL. On March 30, 2004, the OECD Council adopted C(2004)20 (hereafter referred to as the 2004 OECD Amendment), which updated the OECD waste lists, entitled “Appendix 3: List of Wastes Subject to the Green Control Procedure” (hereafter referred to as the Green list) and “Appendix 4: List of Wastes Subject to the Amber Control Procedure” (hereafter referred to as the Amber List). To the extent possible, the Green and Amber Lists were revised based on the amendments made to Annexes II, VIII, and IX of the Basel Convention in November 2003. The 2001 OECD Decision was further amended in November 2005 and November 2008. The OECD Council decisions are collectively referred to as the Amended 2001 OECD Decision, and the consolidated text is in the guidance manual for the Amended 2001 OECD Decision, available online at http://www.oecd.org/environment/waste/42262259.pdf . 1 The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a comprehensive global environmental agreement on hazardous and other wastes. The Convention has 181 Member countries, also known as Parties, and aims to protect human health and the environment against the adverse effects that may result from the generation, management, transboundary movements and disposal of hazardous and other wastes. The United States is a signatory, but has not yet ratified the Convention. More information on the Basel Convention may be found at www.basel.int . EPA published a final rule in the Federal Register entitled, “Revisions to the Requirements for: Transboundary Shipments of Hazardous Wastes Between OECD Member Countries, Export Shipments of Spent Lead-Acid Batteries, Submitting Exception Reports for Export Shipments of Hazardous Wastes, and Imports of Hazardous Wastes” (75 FR 1236, January 8, 2010) amending 40 CFR part 262 subpart H and making conforming requirements in 40 CFR parts 263-266 and 271 to implement the specific provisions of the Amended 2001 OECD Decision. Under the OECD regulations, all export and import shipments for recycling of RCRA hazardous waste between the U.S. and an OECD member country other than Canada or Mexico are required to be shipped using notice and consent procedures, covered by contracts or equivalent arrangements that require the parties ( e.g., exporter, destination facility) to comply with all the applicable requirements in the OECD regulations, accompanied by an international tracking document or movement document from the shipment's starting point in the country of export to the destination facility in the country of import, and recycled within one year of shipment delivery. For example, the contract with the foreign destination facility must specify that it sends copies of the signed movement document back to the exporter and to the competent authorities of the countries of export, import and transit to confirm receipt of the waste shipment. Further, the contract must specify that the foreign destination facility will subsequently send confirmation back to the exporter and to the competent authorities of the countries of export, import and transit that it has completed recycling the shipment. 3. Why did EPA retain the general RCRA export and import requirements along with the OECD regulations? The OECD regulations apply to shipments of RCRA hazardous waste 2 sent for recovery between the United States and OECD member countries other than Canada and Mexico. Although Canada and Mexico are both OECD member countries, the U.S. has separate bilateral agreements with these countries that cover shipments for disposal in the U.S. and Canada, in addition to shipments for recycling in the U.S., Canada or Mexico. Because the bilateral agreements covered shipments for disposal and some import and export shipments occurred with non-OECD countries, EPA kept hazardous waste shipments with those countries subject to the general RCRA export and import requirements in 40 CFR part 262 Subparts E and F. 2 This includes import and export shipments of hazardous waste subject to the alternate management standards for universal waste, SLABs being shipped for reclamation, hazardous recyclable materials being shipped for precious metal recovery, industrial ethyl alcohol being shipped for reclamation, and hazardous waste samples of more than 25 kg being shipped for characterization or treatability studies. In its comments on the proposed revisions to the OECD regulations in 2008, the Basel Action Network (BAN) commented that the U.S. had not yet implemented the 1986 OECD Decision-Recommendation, 3 and should do so immediately. The 1986 OECD Decision-Recommendation stated that OECD member countries should regulate hazardous waste movements with non-OECD countries no differently from movements with OECD member countries. BAN's comment was outside of the scope of the proposed rulemaking, and was noted as such by EPA in the January 8, 2010, final rule and the related response to comments document. EPA, at that time, considered the regulatory requirements in 40 CFR part 262, subpart E to be sufficiently similar to those in 40 CFR part 262, subpart H to comply with the legally binding elements of the 1986 OECD Decision-Recommendation. EPA concluded that this approach was reasonable as EPA had no data indicating that there were significant exports of RCRA hazardous waste that proceeded without consent of any kind. 3 “Decision-Recommendation of the Council on Exports of Hazardous Wastes from the OECD area”, C(86)64/FINAL, issued June 5, 1986. 4. Why is EPA proposing to require that all exports and imports of hazardous waste comply with OECD-based requirements? While EPA has updated the RCRA OECD regulations and some limited changes have been made to the general RCRA export and import regulations since 1996, EPA has determined that a more complete revision is needed at this time for a number of reasons. First, the regulations are quite complex. Different procedures apply depending on whether the shipment is destined for recycling or disposal, whether the other country is a member of the OECD, and if so, whether the U.S. has a separate bilateral agreement with the OECD member country. In addition, the applicability of conforming requirements in 40 CFR parts 263, 264, 265, 266 and 273 related to the general RCRA export and import regulations and the OECD regulations are sometimes unclear. The complexity of having two sets of export and import requirements creates confusion for the regulated community and leads to decreased compliance with RCRA requirements. In general, over ninety percent of the quantity of hazardous waste that is shipped between the United States and other countries occurs between the U.S., Canada and Mexico. Canada and Mexico are both OECD countries and under the same obligation to implement the Amended 2001 OECD Decision. Additionally, hazardous waste shipments between the United States and OECD countries other than Canada and Mexico already follow the Amended 2001 OECD Decision. Only 137 of the 54,152 hazardous waste import and export shipments in 2011 were between the United States and non-OECD countries. Second, the general RCRA regulations in 40 CFR part 262 Subparts E and F do not provide for complete tracking of individual shipment transport and management. As stated previously, under the OECD regulations an international movement document must accompany the shipment from the starting site in the country of export to the destination site in the country of import, and copies of the signed movement document must be sent by the foreign destination facility to the exporter and to the countries of export, import, and transit to confirm receipt of the shipment. Such confirmation reduces the risk of shipments being misdirected to countries or facilities not approved to receive the shipments for disposal or recovery. It also highlights any incidents where the shipments are interrupted or misdirected, as the exporter and competent authorities will not receive the confirmation from the approved destination facility within expected timeframes. While shipments of RCRA hazardous waste are already required to be accompanied by a RCRA hazardous waste manifest under the general RCRA export and import regulations, the focus of the RCRA manifest is domestic cradle-to-grave tracking. As a result, while it requires listing the foreign generator and U.S. port of entry for imports, and the foreign destination facility and U.S. port of exit for exports, it does not capture all of the information needed to track international shipments moving across two or more countries. For example, the RCRA manifest does not have the capability to capture customs processing in the countries of export, transit and import, and the RCRA manifest requires solely listing RCRA hazardous waste codes and U.S. biennial report management codes rather than requiring listing the applicable domestic and internationally accepted OECD/Basel Convention waste codes and the internationally accepted OECD/Basel Convention disposal/recycling operation codes. Moreover, the RCRA manifest is only required to be initiated for import shipments upon the first act of transportation within the United States or its territories. Rather than try to further modify the RCRA manifest to capture all the required international items in addition to all the domestic items it already tracks (especially while EPA is in the midst of developing the e-manifest system) EPA is proposing to require the use of an international movement document for all export and import shipments of hazardous waste. This would include universal waste, SLABs being shipped for reclamation, hazardous recyclable materials being shipped for precious metal recovery, industrial ethyl alcohol being shipped for reclamation, and hazardous waste samples of more than 25 kg being shipped for characterization or treatability studies. Allowing the use of any international movement document, including but not limited to the widely accepted OECD/Basel Convention movement document or the Canadian movement document, will reduce the incremental burden of this requirement and prevent duplicative international tracking requirements. As when using the RCRA manifest, the movement document must list the name, address, telephone, fax numbers, and email of the location from which the export shipment initiates if it is different from that of the exporter. This is currently required in 40 CFR 262.84(b)(2). As listed above, management ( i.e., treatment and disposal, recovery) of each shipment will be required to be completed within one year of shipment delivery, and the destination facility will be required to send confirmation of completing such management back to the exporter and to the competent authorities of the countries of export and import. This requirement should minimize speculative accumulation or abandonment of the waste shipments, and decrease the potential for associated damage to human health and the environment. Destination facilities can easily confirm completing management by signing and dating Block 19 of the OECD/Basel movement document, but may also use another document for this purpose, including but not limited to the Canadian “Confirmation of Disposal or Recycling” form. 4 4 Available for free download at http://www.ec.gc.ca/gdd-mw/8BBB8B31-BFDD-49AA-872D-1C1E8C46CB15/Certificate%20of%20disposal-Recycling-July%202010.pdf . Taking these factors into consideration along with all the others discussed previously leads EPA to conclude that consolidating the RCRA import-export requirements under a unified regulation wholly consistent with the Amended 2001 OECD Decision is the best approach in this proposed rule. EPA is therefore proposing to make all imports and exports of hazardous waste, whether subject to manifest requirements or not ( e.g., universal waste, SLABs being shipped for reclamation, hazardous recyclable materials being shipped for precious metal recovery, industrial ethyl alcohol being shipped for reclamation, and hazardous waste samples of more than 25 kg being shipped for characterization or treatability studies) subject to the RCRA OECD regulations implementing the Amended 2001 OECD Decision. This will ensure that all RCRA hazardous wastes that were previously subject to different export and import requirements will now be subject to more uniform procedures consistent with the 1986 OECD Decision-Recommendation, the Amended 2001 OECD Decision, and the Basel Convention. Under the proposed revisions, all export and import shipments of RCRA hazardous waste will be required to be shipped using notice and consent procedures, covered by contracts or equivalent arrangements that require the parties ( e.g., exporter, destination facility) to comply with all the applicable requirements implementing the OECD procedures, accompanied by an international tracking document or movement document from the shipment's starting point in the country of export to the destination facility in the country of import, and recycled or disposed of within one year of shipment delivery. 5. Why is EPA proposing to change the text of the OECD regulations in 40 CFR part 262 subpart H rather than propose to expand the applicability of the OECD regulations? EPA is proposing to reorganize the regulations in Subpart H of part 262 and clarify certain portions, such as the contract requirements, to articulate more explicitly EPA's original intent in those regulations and to eliminate any confusion on the part of the regulated community. We are also deleting older import and export requirements that are duplicative of or inconsistent with the OECD-based procedures (in the cases of exports to non-OECD countries), and clarifying certain definitions or requirements that are still needed. An example of a duplicative regulation is 40 CFR 264.12(a)(1) in which a U.S. treatment, storage and disposal facility must submit the one-time notice to the Regional Administrator four weeks before the anticipated delivery of the first shipment of a hazardous waste from a foreign source. This regulation will be deleted, as it is duplicative with the notice and consent requirements that will now be required. More fundamentally, under the regulations in Subpart H of part 262, notice and consent is always required, so EPA currently receives notice of the U.S. facility's intent to receive the hazardous waste import for recycling for those cases where the OECD member country listed in 40 CFR 262.58(a)(1) does not control the proposed shipments as hazardous waste exports under 40 CFR 262.82(a)(2)(ii)(B). Under the proposed rule, U.S. importers will be required to submit an export notice directly to EPA, requesting consent to the proposed shipments in place of the foreign exporter, in those instances when any country of export does not control the proposed shipments as hazardous waste exports subject to notice and consent requirements. Maquiladora 5 shipments of hazardous waste from Mexico are a good example of shipments that will be affected by this provision. Mexico considers them to be return shipments to the United States (and thus, not subject to any notice and consent requirements) while the U.S. regulates them as import shipments (and thus subject to notice and consent requirements). As with export notices, these import notices will be able to cover multiple shipments over a 12-month period. 5 In general, a maquiladora is a Mexican assembly or manufacturing operation that can be partly or wholly foreign-owned. Maquiladora facilities typically import raw materials and equipment under reduced or zero Mexican duties so long as the facilities comply with special requirements under Mexican law. One such requirement is that hazardous wastes generated during the production process must be returned to the country of origin. U.S.-owned maquiladoras must therefore ship hazardous wastes back to the United States for treatment and disposal or recycling. More information is available at http://www.bordercenter.org/mexico/mexgenreturn.htm and http://www.borderplexalliance.org/regional-data/ciudad-juarez/twin-plant/maquiladora-faq . Because under this proposed rule EPA will get notices for all import and export shipments subject to the regulations in Subpart H of part 262, the 264.12(a)(1) notice is no longer necessary. The requirement for the U.S. importer to submit a notice to EPA should only affect U.S. importers who intend to import shipments of hazardous wastes that are not controlled in Mexico or non-OECD countries as exports of hazardous waste. These countries do not currently submit notices to EPA for such exports. Canadian regulations 6 currently require submittal of export notices (including the intended U.S. destination facility) for all proposed exports even in cases when only the country of import regulates the waste as hazardous. Similarly, proposed import shipments for recycling from OECD countries other than Canada and Mexico that are not controlled as exports of hazardous waste by those countries are already subject to the regulations under 40 CFR 262.82(a)(2)(ii)(B) and, in those cases, the U.S. importers are already sending notices to EPA. Based on the RCRA manifests for import shipments from Mexico and non-OECD countries that could not be matched to an EPA consent to a foreign notice, we estimate that U.S. importers will need to submit roughly 28 notices per year due to this change. We ask for comment on the accuracy of this estimate. 6 See item (1)(g) in the Canadian definition of hazardous waste and item 2(g) in the Canadian definition of hazardous recyclable material, “Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations,” Canada Gazette Part II, Vol. 139, No. 11, June 1, 2005. More information on the Canadian regulations are available at http://ec.gc.ca/lcpe-cepa/eng/regulations/detailReg.cfm?intReg=84 . Another proposed change is to delete the requirement for an exporter providing a copy of EPA's Acknowledgment of Consent (AOC) letter for the transporter to carry with each shipment in 40 CFR 262.52(c). Instead, under this proposed rule the movement document will list the notification/consent number under which the shipment is covered and include a signed certification statement that all contracts are in place and all necessary consents have been obtained. The information in the movement document will therefore include all the necessary information for the countries of export, transit and import to match the movement documents for the individual shipments with the relevant notification and consent documents. Because RCRA manifests track certain domestic items ( e.g., biennial reporting management codes) that are not captured by the OECD movement document, we are not proposing to delete the RCRA manifest requirements for import and export shipments. However, we are proposing to replace the requirement to attach copies of the relevant EPA import consent documentation to RCRA manifests for import shipments in 40 CFR 264.71(a)(3) and 265.71(a)(3), with a requirement that the U.S. importer list the relevant consent number for each waste stream in the RCRA manifest section titled “Special Handling Instructions and Additional Information”. EPA should have consented in all cases, either to a notice forwarded by the country of export or a notice submitted by the U.S. importer/receiving facility; therefore, requiring the receiving facility to list the consent numbers will provide the needed information to enable EPA to match the RCRA manifest for the import shipment with the relevant consent information. While EPA will continue to send copies of its consent to the listed U.S. destination facility for imports, these facilities will no longer be required to make copies of the documentation and attach a copy to the RCRA manifest for each import shipment. EPA considered proposing to limit the number of RCRA waste codes that can be listed in an export or import notice or an export annual report for a specific hazardous waste. Currently, the regulations do not limit the number of RCRA hazardous waste codes that can be submitted on a notice of intent to export or import or on an export annual report, which means an exporter can submit an export or import notice or an export annual report listing every RCRA hazardous waste code for each specific hazardous waste. Of the 1,684 export notices received by EPA in calendar year 2013, at least 200 notices were submitted with hundreds of RCRA hazardous waste codes listed for each of the hazardous wastes in the notice. EPA does not believe that all (or close to all) of the RCRA hazardous waste codes could actually apply to a single waste stream. Listing more (or all) hazardous waste codes for a waste stream does not appreciably increase the quality of the waste stream data or prevent the destination facility from rejecting a poorly characterized hazardous waste. This practice does impair EPA's oversight and tracking accuracy of exported hazardous wastes. The export notices and export annual reports where EPA has observed all (or close to all) of the RCRA waste codes have been listed for each waste stream are associated with proposed or actual hazardous waste export shipments to Canada. Canadian import and export regulations require Canadian importers and exporters to list the applicable RCRA hazardous waste code, 7 but do not explicitly limit the number of waste codes to list per waste stream. As already stated, EPA has concerns over the practice of listing more (or all) hazardous waste codes for a waste stream where the waste codes may not be applicable. EPA asks for feedback from exporters on what waste streams would actually require listing all (or close to all) RCRA hazardous waste codes and why. EPA also seeks to learn what steps those exporters are taking to review their practices in this regard in order to produce a more limited and accurate listing of the RCRA hazardous waste codes that actually pertain to the shipments they propose to make, for the purposes of reducing the burden on their own operations as well as on the operations of the governments involved in the transboundary control process in order for the process to operate more efficiently. Based on the feedback received, EPA may consider limiting the number of RCRA hazardous waste codes listed for a specific hazardous waste, for example, to a maximum of six codes consistent with the current waste code limit for the RCRA hazardous waste manifest in the instructions for Item 13 in the Appendix to 40 CFR part 262, or may consider requiring the conditional submittal of information justifying the listing of all (or close to all) RCRA hazardous waste codes for a waste stream at the time the export notice, import notice, or export annual report is submitted. 7 See item 8(j)(v) under Part 1 of the Canadian regulations, “Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations,” Canada Gazette Part II, Vol. 139, No. 11, June 1, 2005. More information on the Canadian regulations are available at http://ec.gc.ca/lcpe-cepa/eng/regulations/detailReg.cfm?intReg=84 . EPA also considered proposing to limit the number of notice amendments that an exporter could submit within the one-year period of consent established by EPA's AOC letter. Under the existing notice requirements in 40 CFR 262.53, exporters are required to submit a notice amendment and obtain an amended consent concerning any changes to information listed in the notice other than changes to the exporter's contact phone number, changes to the means of transportation, or decreases to the planned export quantity. Under existing notice requirements in 40 CFR part 262 subpart H and the proposed revisions, the ports of exit and transporter companies the exporter plans to use during the consent period are required to be listed in the export notice, and exporters will have to submit a notice amendment requesting consent before using any additional ports or transporters not listed in the original notice and EPA AOC letter. Because amendments may be necessary, and even multiple amendments may be unavoidable, EPA decided not to propose limiting the number of amendments that an exporter can submit to request changes to the terms of an issued AOC letter during the one-year consent period. However, it is important to note that EPA must prioritize export documents it receives to help ensure that the system continues to operate efficiently and avoid delays in shipments. Because having consent to ship is most critical, processing by EPA of initial export notices to obtain consent to ship is the highest priority, and processing amendments to add ports or transporters to an issued AOC is a much lower priority. EPA therefore encourages exporters to submit notices that contain all potential ports and transporters reasonably expected to be used, to avoid the need to request amendments to add ports or transporters, particularly because there is no limit to the number of transporters or ports that can be listed in the export notice. EPA is not proposing to expand the applicability of the revised regulations in subpart H of part 262 beyond those RCRA hazardous wastes already subject to the current export requirements in 40 CFR part 262. Under RCRA Section 3017, EPA's authority to prohibit exports and establish regulatory requirements to implement international waste agreements is limited to waste regulated as hazardous under RCRA. This proposed rule does not affect wastes that are not regulated as RCRA hazardous waste ( i.e., not subject to 40 CFR part 262), but that may still be considered amber wastes ( i.e., internationally hazardous) under the Amended 2001 OECD Decision, such as municipal solid waste or medical waste. The 1992 OECD Decision and the Amended 2001 OECD Decision both include provisions that make allowances for individual member countries controlling various OECD amber wastes as green ( i.e., internationally non-hazardous) wastes. This was discussed in more detail in the April 12, 1996, preamble to the original rule implementing the 1992 OECD Decision (61 FR 16290-16316). EPA is also not proposing to address requirements for shipments that transit through the United States beyond what is currently required for return of shipments transiting the United States in 40 CFR part 262 subpart H. The OECD Decision (see Chapter II, Section (D)(2)(Case 1)(j)) and the Basel Convention (see Article 4, Section (7)(c)) both require movement documents from the starting point in the country of export to the recycling or disposal facility in the country of import. Shipments that transit the United States may therefore be accompanied by an international movement document while in transit in the United States under requirements established by the country of export and/or the country of import if those countries are OECD countries or party to the Basel Convention. However, the EPA does not require such transits to be accompanied by an international movement document. Lastly, EPA would like to note that the existing U.S.-Canada bilateral agreement, the U.S.-Mexico bilateral agreement, and the three import-only bilateral agreements between the United States and Malaysia, Costa Rica, and the Philippines remain in place and are not affected by these proposed revisions. While the proposed revisions, if finalized, would change the applicable requirements for hazardous waste shipments with these countries, the additional requirements being proposed are fully consistent with the bilateral agreements. 6. Why is EPA proposing to require electronic submittal of nine major export and import documents? Currently all import and export submittals to EPA are paper-based. As part of EPA's Next Generation Compliance initiative and electronic reporting policy, 8 EPA is working to convert paper submittals to EPA with electronic submittals that comply with the applicable requirements in EPA's Cross-Media Electronic Reporting Regulation (CROMERR). 9 Under 40 CFR parts 261, 262, 264 through 266, and 273, the following paper documents are required to be submitted to EPA related to imports and exports: 8 http://www2.epa.gov/compliance/next-generation-compliance-delivering-benefits-environmental-laws. 9 http://www.epa.gov/cromerr/epa.html. (a) Export notices for hazardous waste (40 CFR 262.53 and 262.83) or CRTs being shipped for recycling (40 CFR 261.39(a)(5)); (b) Import notices for cases where country of export does not control as hazardous waste export and EPA has not received notice from country of export (40 CFR 262.82(a)(2)(ii)(B)); (c) Export annual reports for hazardous waste (40 CFR 262.56 and 262.87(a)) or CRTs being shipped for recycling (40 CFR 261.39(a)(5)(x)); (d) Export exception reports (40 CFR 262.55 and 262.87(b), in lieu of exception reporting required under 40 CFR 262.42); (e) Export confirmations of receipt (submittal by foreign recycling facility required in 40 CFR 262.54(f), 262. 84(e), and required implicitly by 40 CFR 262.85); (f) Export confirmations of completing recovery (submittal by foreign recycling facility required implicitly by 40 CFR 262.85); (g) Import confirmations of receipt (40 CFR 262.60(e), 262.84(e), 264.12(a)(2), 265.12(a)(2), 264.71(a)(3), 265.71(a)(3), 264.71(d), 265.71(d)); (h) Import confirmations of completing recovery (40 CFR 262.83, 264.12(a)(2), 265.12(a)(2)); (i) Import notifications regarding need to make alternate arrangements or need to return waste shipment (40 CFR 262.82(d)(1), 262.85(c)(1)); (j) Import notifications of expected initial import shipment of a specific hazardous waste from a specific foreign source (40 CFR 264.12(a)(1)); and (k) Transporter notifications regarding need to return shipment transiting U.S. to country of export (40 CFR 262.83(e)(1)). Not all of the items listed above occur in sufficient numbers to justify converting to electronic submittal. For example, EPA has never received a transporter notification listed in item (k) regarding the need to return a shipment transiting the United States to the country of export, likely because there are so few transboundary shipments that solely transit the United States. Additionally, EPA is proposing to delete the one-time import notification requirement listed in item (j). We are therefore not proposing to require electronic submittal of items (j) and (k). But the remaining nine submittals do occur regularly, and for these nine existing submittals EPA is proposing a mandatory requirement that submittal be made electronically on or after the effective date of the final rule. As part of this proposal, EPA will consider exemptions to this requirement if most regulated entities impacted by this rule are expected to be located in areas with limited broadband access as defined by the Federal Communications Commission (FCC) or there are unique circumstances that make paper submittals more efficient. EPA's waste import/export database is currently used to process and track all import notices annually transmitted to EPA by foreign governments or U.S. importers (when the country of export does not regulate as hazardous waste export subject to notice and consent requirements), and all export notices submitted annually to EPA by U.S. exporters. EPA received 769 import notices and 1,684 export notices in Calendar Year (CY) 2013. When EPA receives a paper export or import notice, an EPA notice officer must first review it for completeness, and then once it is deemed complete, manually enter the data from the notice into the tracking system. The 718 import notices transmitted by Canada and Mexico in CY2013 were received electronically through the Notice and Consent Electronic Data Exchange (NCEDE) using EPA's Central Data Exchange (CDX), 10 but all other import notices and all export notices must be manually entered by an EPA notice officer. Export notices often are missing required information, and require lengthy communications with the exporter via phone, email or fax to correct missing or invalid entries. Converting to an electronic web-based notice entry will enable automating checks for all required information and the use of drop down lists ( i.e., a list of valid entries from which the submitter will be able to choose one or more entries) to reduce invalid entries. Assuming a web-based notice entry process, EPA estimates that the submitter will need to enter the following: 10 http://www.epa.gov/cdx/about/index.htm. (a) Three initial fields for receiving country, disposal or recovery, and general waste material type, using radio buttons and drop down lists, to determine the required fields for the notice; (b) Eight required fields on the notice page: First departure date (calendar); last departure date (calendar); technology employed (open text); name of notice signer (open text); signature date (calendar); import, exporter, and receiving facility (drop down list from type ahead feature or open text for facilities not already in the system—open text has roughly nine required fields for each: Company name, address, EPA ID number, zip code, country, city, phone, fax, email); (c) Six required fields on the transportation page: Mode of transport (drop down list); packaging type (drop down list), shipment frequency (number field); ports of entry (drop down list), ports of exit (drop down list); transporter (drop down list—but allows for manual entry of the nine required fields for transporters not already in the system); (d) Nine fields (eight required) for each waste stream: Waste material type (drop down list); management method code (drop down list); DOT/UN ID, shipping name, and hazard class (drop down list—one entry selected populates all three); EPA waste codes (drop down list); Basel Convention codes (optional entry, uses drop down list); OECD codes (drop down list); waste description (open text); waste quantity (number); unit of measure for waste quantity (drop down list); and (e) Three required fields on the transit country page: Transit country (drop down list); port of entry (drop down list); and port of exit (drop down list). Reduced errors and electronic submittal of notice data will substantially decrease the time needed for EPA to review and process the notices, and the time needed for the U.S. submitter to correct the notice deficiencies, which will make the notice process more efficient for the U.S. exporter and U.S. importer submitting notices to EPA. Additionally, U.S. exporters and importers submitting notices electronically will be able to duplicate previous notices when seeking to renew consent to export with a minimum of changes, and then simply edit the fields which would change. EPA estimates that as many as 60 percent of submitted export notices would benefit from the duplication feature, which would reduce the required data entry down to editing roughly 2 to 14 fields. Additional benefits to the U.S. submitter will be the elimination of mailing or courier fees needed to submit the notices, the elimination of the risk of losing the submittal in the mail, and the ability for the U.S. submitter to log in and obtain information on the status of all submitted notices without needing to request the information from EPA via phone or email. Lastly, electronic export notices will enable the transmittal of all EPA reference data needed to validate consent for each shipment under ITDS (see Section II.C. for more information on ITDS). EPA requests comment on this potential notice entry process, and further requests comment on how many exporters currently use an automated system to generate notices and the estimated burden reduction if EPA developed an option to submit notices electronically using a system-to-system based approach using XML through EPA's CDX. Export annual reports must be submitted to EPA by March 1 of each year and detail all export shipments made under consent during the previous calendar year. Currently, exporters must generate these reports and submit them in paper form. In order to conduct any meaningful analysis of the quantity and types of waste exported, EPA must review the export annual reports submitted each year for completeness and manually enter the data from the export annual reports. EPA received 378 export annual reports concerning shipments made in CY2011. Converting to electronic submittal of the data will again reduce EPA's review time and manual entry time, and will reduce the time needed for U.S. exporters to correct any export annual report deficiencies. An additional benefit to converting to electronic submittal of the export annual report would be that the tracking system could build a draft report listing the required information regarding all wastes under consent that were approved to ship during the previous calendar year. The exporter could then simply enter the total quantities for each waste using the same reporting units of measurement listed in the notice. The tracking system could potentially also build a draft report listing the total quantities exported for each waste based on the data EPA will receive from the AES on successfully validated export shipments that were cleared for departure during the previous calendar year. The exporter would still need to review the draft report, and either edit it to reflect any returns or corrections needed, or electronically confirm that the generated draft report was accurate and complete. Either approach would also require the exporter to enter a description of the efforts undertaken during the year to reduce the volume and toxicity of the waste generated in an open text field, and 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) in an open text field, consistent with the biennial reporting requirements in 40 CFR 262.41(a)(6) and (7), and required for export annual reports in 40 CFR 262.56(a)(5) and 262.87(a)(5). The electronic process should save the exporter considerable time by creating the draft report for the exporter, and should additionally eliminate the cost of sending the report via U.S. mail or courier service and the risk of losing the report in the mail. With respect to EPA, electronic reporting will reduce the time currently needed to review and manually enter the export annual report data. EPA asks for feedback from exporters on the hours and costs they currently incur to prepare paper export annual reports. Export exception reports occur less frequently, but the roughly 20 reports submitted to EPA each year must still be matched to the relevant consent and filed by EPA. Converting this submittal to electronic assuming a web-based entry would require entry of the following data fields: (i) Manifest tracking number, (ii) EPA consent number, (iii) check box for one of the three exception report types (see 40 CFR 262.87(b)(1) through (3)), and (iv) an open text field for the exporter to describe the situation. Electronic submittal should save EPA the time needed to match the exception report to the relevant consent and file the paper report, and for the exporter would again save at a minimum the costs of mailing the exception report to EPA, and eliminate the risk of losing the exception report in the mail. EPA asks for comment on the accuracy of the estimated number of exception reports submitted annually, and the expected benefits. Under the Amended 2001 OECD Decision and the current contract provisions of subpart H in 40 CFR 262.85, the exporter is required to have contract terms with all other parties involved in the transaction to ensure that the OECD procedures are carried out. With respect to export shipments, the contract should therefore require the foreign facility to submit copies of export confirmations of receipt and confirmations of completing recycling to EPA and the U.S. exporter. The foreign facility is supposed to submit the confirmation of receipt within three days of shipment delivery, and submit the confirmation of completing recycling as soon as possible, but no later than thirty (30) days after the completion of recovery and no later than one (1) calendar year following shipment delivery. Based on export annual reports on 2011 export shipments, 2,466 export shipments were subject to part 262 subpart H requirements, and 48,752 export shipments were subject to part 262 subpart E requirements. Under this proposal, EPA expects to receive one confirmation of receipt and one confirmation of completing disposal or recycling for each of the 48,752 shipments that would now be subject to the OECD regulations. Converting submittals to electronic, and assuming a web-based approach, foreign facilities would simply enter the EPA consent number and then upload a PDF copy of the confirmation of receipt or confirmation of completing recycling/disposal. Given that the likelihood that the facility would wish to submit multiple confirmations at a single time, the planned design would include the option to upload multiple confirmations of receipt and multiple confirmations of completing recycling/disposal in one action. Benefits to electronic submittal for EPA would be the reduced time needed to match incoming paper confirmations with the relevant consents and file the paper documents. Benefits to the foreign facility would be more timely submittals to EPA, elimination of the costs for mailing the confirmations to EPA, and elimination of the risk of losing the exception report in the international mail. Importantly, exporters would be able to view all submitted confirmations submitted under their consents, improving their oversight of the foreign facility's compliance with the terms of the contract or equivalent arrangements. EPA asks for comment on the planned approach and expected benefits, and on foreign facilities submitting these confirmations system-to-system using XML through EPA's CDX. U.S. importers/recycling facilities are similarly required to submit confirmations of receipt and completing recycling to EPA under the current OECD regulations. Based on the RCRA manifests submitted to EPA for import shipments received in CY2011, 62 import shipments were subject to part 262 subpart H requirements, and 2,872 import shipments were subject to part 262 subpart F requirements. Under this proposal, U.S. importers/receiving facilities for all hazardous waste import shipments would become subject to these requirements, resulting in the submittal of confirmations of receipt and completing recycling or disposal for an additional 2,872 shipments. Converting these submittals to electronic would use the same data entry-upload approach as for the export confirmations. Expected benefits to EPA of electronic submittal would be the reduced time needed to match the incoming paper confirmations with the relevant consent and file the documents. Expected benefits to the importer/receiving facility would be more timely submittals to EPA, elimination of the costs for mailing the confirmations to EPA via U.S. mail or courier service, and elimination of the risk of losing the exception report in the mail. EPA asks for comment on the accuracy of the estimated increase in confirmations, the expected benefits, and the possibility of the facilities submitting these confirmations system-to-system using XML through EPA's CDX. U.S. importers/recycling facilities are required under current subpart H regulations to notify EPA in writing of the need to make alternate arrangements to manage a given shipment of waste or to return the shipment to the country of export when it cannot be managed per the terms of the notice and consent. Based on the three notifications submitted to EPA between 2011 and 2013 concerning the need to make alternate arrangements for a shipment, and the lack of such notifications concerning the need to return a shipment to the country of export, EPA estimates that one such notification will be made each year. Converting this submittal to electronic means would, assuming a web-based approach, require the entry of the following data fields: (i) Manifest tracking number, (ii) EPA consent number, (iii) check box for one of the two notification types ( i.e., need for return or alternate arrangements), and (iv) an open text field for the importer/receiving facility to describe the situation. Electronic submittal should enable sharing of the notification with the relevant EPA regional office import-export personnel, and would enable forwarding to the relevant state agency contacts. Expected benefits for the importer/receiving facility would again be eliminating the costs of mailing the import notification to EPA, and eliminating the risk of losing the notification in the mail. EPA asks for comment on the accuracy of the estimated number of notifications submitted annually, and the expected benefits. Electronic submittal would require that all submitters register within EPA's CDX system. Doing so would then register them for any subsequent electronic submittal under any EPA program office's e-reporting requirement. The registration is done for the individual submitting the electronic documents, so any change in the employee submitting the information would require CDX registration for the new submitting employee. But any employee already registered in CDX to submit other program office's e-reporting ( e.g., Toxics Release Inventory (TRI) e-reporting) would not need to re-register to submit RCRA export and import documents electronically. When contact information for U.S. RCRA exporters and importers was compared with contact information for current CDX registrants, 84 out of the total 423 current exporters and importers appeared to be already registered in CDX. All others would need to become registered within CDX, which can be done via a fully online registration and identity verification process, or via a paper process if/when the online process is unable to verify identity (according to the Office of Environmental Information, roughly 80% of U.S. submitters successfully registered via the online process). In order to be able to submit confirmations electronically per their contract requirements with the U.S. exporter, foreign submitters might also need to register in CDX, probably using the paper process. EPA asks for comment on the number of exporter and importer submitters that are currently registered in CDX due to e-reporting for another EPA program office ( e.g., TRI e-reporting, Chemical Data Reporting under Section 8(a) of the Toxic Substances Control Act). EPA is proposing to require electronic submittal of the nine major import and export documents on or after the effective date of the final rule. This assumes that the necessary system changes will be able to be completed in 2015 and tested by volunteer companies before the issuance of the final rule. Electronic submittals established in the final rule will be compliant with CROMERR to the extent that it applies. Other EPA e-reporting rulemakings, such as the July 30, 2013, proposed rule concerning e-reporting under the National Pollutant Discharge Elimination System (NPDES) 11 proposed a two-year transition period, and EPA requests comment on the need for any transition period, and the appropriate length of such a transition period. 11 http://www2.epa.gov/compliance/proposed-national-pollutant-discharge-elimination-system-npdes-electronic-reporting-rule. EPA estimates that all exporters and almost all importers have broadband Internet access, given that exporters or U.S. authorized agents currently file data electronically into the AES, and many exporters and importers currently file electronic data under another EPA program such as TRI. But in case there are RCRA exporters or importers that do not have broadband Internet access, or have other unique circumstances that would prevent them from being able to submit RCRA import and export data electronically, or would experience an unreasonable burden or economic impact to their company if required to submit the data electronically after the transition period, EPA is proposing to allow these companies to request a temporary waiver from the electronic reporting requirements being proposed. Similar to the process established by the Securities and Exchange Commission (SEC) [17 CFR 232.202(a)] to its (rare) granting of continued hardship exemptions for electronic filing, EPA could grant temporary waivers from e-reporting for each exporter or importer that meets criteria demonstrating that such electronic reporting of RCRA export or import information would pose an unreasonable burden or expense to the exporter or importer. The SEC process requires the submission of a written request made at least ten business days before the required due date of the submission. As identified in 17 CFR 232.202(b), this written request shall include, but not be limited to: (i) The reason(s) that the necessary hardware and software are not available without unreasonable burden and expense; (ii) the burden and expense associated with using alternative means to make the electronic submission or posting, as applicable; and/or (iii) the reasons for not submitting the document, group of documents or Interactive Data File electronically, or not posting the Interactive Data File, as well as the justification for the requested time period. Under the SEC process, the temporary exemption is not deemed granted until the SEC notifies the applicant. Although the SEC has successfully required electronic reporting from various sized companies for the majority of its reports since 1993, it is still possible that a small number of RCRA exporters or importers might claim that they either do not have computers on-site, do not have computer-savvy individuals available, or are a considerable distance away from a location where they could get computer access. EPA is therefore considering the possible use of temporary waivers from electronic reporting of RCRA import and export information for such entities, although technological advances and computer access are such that there may be few valid instances of such situations. EPA may consider establishing a similar procedure for such temporary waivers if the criteria for such temporary waivers are broadened, in response to comments, beyond that in the proposed rule. In addition to these possible temporary “continued hardship” waivers for RCRA exporters and importers from electronic reporting, EPA also recognizes that there may be a need for incident-specific one-time waivers or other adjustments for situations that are beyond the control of the reporting facility ( e.g., tornados, floods, EPA or state data system disruptions). In 17 CFR 232.201, the possibility of a temporary hardship exemption from electronic reporting to the SEC is described. In the SEC regulations, under this temporary hardship exemption, the electronic filer may instead file a written copy of the report or, preferably, be granted the use of a one-time change to the filing due date rather than rely upon a temporary hardship exemption where the situation is beyond the control of the filer. EPA proposes to utilize one-time changes to due dates rather than waivers from electronic reporting in these types of emergency situations. EPA requests comment on the need for such temporary waivers or exemptions, as well as which criteria should apply for the granting of such temporary exemptions. For comparison, while EPA's August 13, 2010 proposed rule (75 FR 49656) regarding Toxic Substance Control Act (TSCA) Inventory Update Reporting Modifications requested comment on whether there were any circumstances in which a company may not have Internet access to report the required data electronically, the August 16, 2011 final rule (76 FR 50815) required electronic reporting with no exceptions or process for requesting a waiver from electronic reporting. 7. Why is EPA proposing to require that recognized traders obtain EPA ID Numbers before arranging for import or export? Recognized traders are those persons that only arrange for the import or export of RCRA waste subject to notice and consent requirements and do not otherwise physically generate, transport, store, treat or dispose of the waste. As such, a recognized trader is not required or even typically able to obtain EPA ID numbers under current RCRA regulations, even though he or she is subject to existing RCRA export and import requirements and plays a central role in the transboundary movement of the waste. EPA is proposing to require that such persons notify EPA of their hazardous waste activity as recognized traders and obtain EPA ID numbers to better track recognized trader activities and their compliance with the hazardous waste import and export process. EPA ID numbers are issued by authorized state agencies and EPA Regional Offices, and provide a consistent, reliable way for state agencies and EPA to track companies or individuals based on their site (or business) address and activities declared in EPA's Notification of Regulated Waste Activity (EPA Form 8700-12). Matching company names and addresses in an electronic system is difficult due to the multiple ways a given company's name or address can be entered ( e.g., “INC” vs. “Inc.”) or address ( e.g., “123 Main ST” vs “123 Main Street”). EPA proposes to require that all such persons, known as “recognized traders” under the Amended 2001 OECD Decision, obtain an EPA ID number before arranging for the export or import of hazardous waste. Exporters and importers that otherwise physically handle ( e.g., generate, transport, recycle) hazardous wastes should already have an EPA ID number issued by their authorized state agency or EPA Regional Office. We have estimated that roughly one percent of all exporters and importers are recognized traders as defined under the Amended 2001 OECD Decision, and that four of the current exporters and importers will need to request an EPA ID number using EPA Form 8700-12 under this proposed change; EPA requests comment on the accuracy of this estimate. EPA Form 8700-12 and its associated instructions and information collection request (ICR) 12 will have to be revised to enable recognized traders to request an EPA ID number based solely on arranging for export or import. 12 http://www.epa.gov/osw/inforesources/data/form8700/8700-12.pdf . C. RCRA Hazardous Waste Export Integration With ITDS 1. What is ITDS and how does it impact RCRA hazardous waste imports and exports? In 2006, U.S. Customs and Border Protection (CBP) began automating processes for the import and export of goods to improve the control of what enters and leaves the US, as well as to become much more efficient. Launched under the Security and Accountability for Every Port Act of 2006 (SAFE Port Act, Pub. L. 109-347) and the 2007 Import Safety Executive Order 13439, the multi-agency program called the International Trade Data System (ITDS) 13 assists the 48 Federal agencies with import/export responsibilities in their efforts to integrate import and export cargo processing with CBP's Automated Commercial Environment (ACE) for imports, and the Automated Export System 14 (AES) for exports. 13 http://www.itds.gov/xp/itds/home.html . 14 On April 5, 2014, the Automated Export System (AES) was re-engineered under the umbrella of the Automated Commercial Environment (ACE) trade processing system, but is still referred to as AES. Under ITDS, agencies with existing paper-based import and export clearance procedures at the port of exit or entry are working with CBP to enable electronic filing and processing of the export or import shipments based on one set of submitted data that can then be checked against all relevant U.S. agency requirements. While RCRA regulates hazardous waste imports, there is no analogous provision in RCRA explicitly prohibiting import of hazardous waste absent consent that would enable EPA to stop entry of possible hazardous waste shipments at the port unless there is an imminent and substantial risk of damage to human health and the environment. As a result, EPA does not currently have paper-based entry procedures for hazardous waste import shipments. Because there are no entry procedures to automate, EPA's import-related ITDS work does not include automating entry procedures for hazardous waste import shipments. However, EPA does have clear authority under RCRA Section 3017 to stop export shipments of RCRA waste subject to notice and consent requirements at the port and we are working with CBP to establish automated checks in the Automated Export System (AES) against EPA consent-based reference data for all shipments declared by the exporter to be subject to RCRA notice and consent requirements. On February 19, 2014, the White House issued Executive Order 13659 titled “Streamlining the Export/Import Process for America's Businesses”. Under Executive Order 13659, participating agencies must have all requirements in place and in effect to utilize the ITDS and supporting systems like the ACE and the AES for receiving documentation required for the release of imported cargo and the clearance of cargo for export no later than December 31, 2016. 2. How is EPA proposing to integrate RCRA hazardous waste export requirements with ITDS? First, EPA proposes to require that exporters or U.S. authorized agents additionally file key export consent data into the Automated Export System (AES) to validate EPA's consent covering each export shipment before each shipment exits the country. (The term “EPA's consent,” in the context of these proposed requirements for exporters to validate key data in the AES, means EPA's AOC letter.) Second, EPA proposes to require that exporters submit electronic export notices into EPA's waste import/export database to enable transmittal of all reference data needed for validation from EPA to AES (for more information on electronic export notices, see Section II.B.6). As discussed previously, the CEC recommended that the U.S. border and environmental agencies coordinate more closely on export shipments. Part of the difficulty in sharing data with U.S. Customs and Border Protection (CBP) has been that CBP has typically based any export filing errors or flags on information linked to the Commodity classification number, while EPA's authority to prohibit export absent consent under Section 3017 of RCRA is based on RCRA waste type ( e.g., RCRA hazardous waste codes) and intended management. In addition to the differing basis for prohibiting or flagging export shipments, rail cars, truckloads, or shipping containers of hazardous waste do not typically look like containers of hazardous waste needing EPA's consent from the outside. Absent some obvious hazard ( e.g., fire, leaking contents), CBP has not had an express basis to check shipments for EPA consent. Under current RCRA transporter regulations in 40 CFR 263.20(g), the transporter carrying a RCRA manifested hazardous waste export shipment to the port of exit must sign and date the RCRA manifest to indicate the date the shipment is leaving the country, keep one copy, send one copy back to the generator, and give one copy to the CBP official at the “. . . point of departure from the United States.” But this requirement has not enabled meaningful checks for EPA consent at the border. Per the Census Bureau's Foreign Trade Regulations (FTR) in 15 CFR part 30, all exporters (or their authorized filers) that ship goods subject to an export license, defined in FTR section 30.1, 15 are currently required to file Electronic Export Information (EEI) in the AES for each export shipment regardless of value or country of ultimate destination. EPA's AOC letter meets the FTR definition of an export license, 16 so all exporters shipping waste subject to RCRA notice and consent conditions ( i.e., cathode ray tubes being shipped for recycling) or requirements ( e.g., RCRA manifested hazardous waste, SLABs being shipped for recovery of lead) are already required to file export data in the AES. The AES has over 100 elements 17 that potentially apply to an export shipment. In place of the transporter requirement in 40 CFR 263.20(g)(4), EPA is proposing to require exporters or U.S. authorized agent to file the following EPA data in the AES: 15 Export license. A controlling agency's document authorizing export of particular goods in specific quantities or values to a particular destination. Issuing agencies include, but are not limited to, the U.S. Department of State; the U.S. Department of Commerce's Bureau of Industry and Security; the Bureau of Alcohol, Tobacco, and Firearms; and the Drug Enforcement Administration permit to export. 16 Per email dated April 11, 2014 from Joe Cortez, chief of regulations outreach and education branch in the Foreign Trade Division of the U.S. Census Bureau, EPA's AOC letter meets the regulatory definition of an export license in 15 CFR 30.1. 17 https://www.census.gov/foreign-trade/aes/documentlibrary/aesparticipantsdata.html . (a) EPA license code (to declare shipment is subject to RCRA export notice and consent requirements). (b) Commodity classification code (10 digit, numeric description of the commodity). (c) EPA consent number (specific to waste). (d) Country of ultimate destination. (e) Date of export. (f) RCRA hazardous waste manifest tracking number (if required; universal waste, CRTs being shipped for recycling, industrial ethyl alcohol being shipped for reclamation, and SLABs being shipped for recovery of lead are exempt from RCRA manifest requirements under existing RCRA regulations). (g) Quantity of waste in shipment and units for reported quantity (units established by commodity classification number). (h) EPA net quantity and units for reported quantity (if required, must be reported in kilograms if solid waste, and in liters if liquid waste; only required if commodity classification number does not require quantity to be reported in weight or volume units). Of the items listed above, only the “EPA license code”, “EPA consent number”, “RCRA hazardous waste manifest tracking number”, “EPA net quantity”, and “EPA net quantity units of measurement” are not already required to be filed in the AES under the FTR. Of these five items, one item is only required if the waste is subject to RCRA manifesting requirements and the remaining two items are only required in cases where the commodity classification number-based quantity reporting does not require that the quantity of the commodity in the shipment be reported in weight or volumetric units ( e.g., kg or L). Because an EPA license, or an EPA consent number, is required, AES will require the five additional items to be filed, and will validate the import country code and expected date of shipment departure against EPA-supplied reference data for the entered EPA consent number. If the consent number is not in the correct format, AES will provide a fatal error message for the filer that specifies the error in the filing. The filer will then need to correct and resubmit the filing to correct it. If the import country does not match the country of import for the consent number, AES will provide a fatal error message for the filer that specifies the error in the filing. The filer will then need to correct and resubmit the filing. If the expected date of shipment departure does not fall within the start date and end date for the consent number, AES will provide a fatal error message for the filer that specifies the error in the filing. The filer will then need to correct and resubmit the filing. If a RCRA manifest is required for the consent number and the filer does not enter a correctly formatted RCRA manifest number ( i.e., nine digits followed by three letters), AES will provide a fatal error message for the filer that specifies the error in the filing. The filer will then need to correct and resubmit the filing. Lastly, if the EPA net shipping quantity is required to be entered based on the commodity classification number entered and the filer does not enter that quantity, the AES will provide a fatal error message for the filer that specifies the error in the filing. The filer will then need to correct and resubmit the filing. AES will not issue an Internal Transaction Number (ITN) to indicate successful completion until the filing passes all validations. The exporter and transporter will be in violation of the FTR if the shipment is exported without a valid ITN. When the shipment is validated and the ITN issued, the shipment will be cleared to leave the port of exit. The AES will transmit the EPA data listed above to EPA's hazardous waste import/export database, so that EPA will get shipment data for each consent number and will be able to track total quantity exported against the approved total quantity for that waste stream level consent number. In addition, EPA will be able to use the shipment data from AES to build draft export annual reports that are required in Section 3017 of the statute (for more information on electronic export annual reports, see Section II.B.6). Exporters with valid consents will be able to efficiently validate their EPA consent with CBP as part of their regular AES filing, and any typographical errors should be able to be quickly corrected and the entry resubmitted. Exporters with expiring or expired consent numbers, or exporters that have already met or exceeded their approved total export quantity for the consent number, will need to submit an export notice or export notice amendment to EPA to renew their consent under a new consent number or increase their approved total export quantity for the current consent number. EPA plans to modify its AOC letter to include guidance on how to enter the EPA-only items in the AES once the regulations are effective to reduce inadvertent AES filing errors. CBP and EPA have already made changes to the AES that reflect this validation, changes that were reflected in the AES instructions updated on October 3, 2014. 18 However, these changes will remain optional until the AES changes have been fully tested, and EPA's proposed regulations become final and are effective. Two SLAB exporters are working with EPA and CBP to pilot test the validation process. 18 http://www.cbp.gov/trade/aes/aestir/introduction-and-guidelines. EPA considered attempting to validate exporter names and addresses, but ultimately decided against doing so because of the previously discussed problem of trying to match highly variable text fields for exporter name and address from EPA export notice data with data filed in AES. EPA also considered validating against the commodity classification number expected for the waste stream linked to the consent number, but decided against it due to the difficulty in uniquely mapping the one waste to one commodity classification number in all cases. As discussed in Section VII, the commodity classification numbers may not contain sufficient detail to match with the RCRA waste codes and intended management. If commenters know of ways to reliably match commodity classification numbers with the combination of EPA waste type and intended management, please provide this information, and EPA may consider this in the final rule. Requiring electronic export notices and filing the additional items in the AES will ensure that export shipments of declared RCRA wastes subject to RCRA notice and consent requirements only depart the country when going to the approved country within the approved window of export, with a minimum of additional burden to the exporter. It should therefore further reduce illegal exports of hazardous waste and the potential risk to human health and the environment that may result. It will also ensure compliance with Executive Order 13659 that requires implementation of all ITDS requirements by December 31, 2016. D. RCRA Hazardous Waste Export and Import Regulations and Executive Order 13563 for the Retrospective Review of Existing Regulations On January 18, 2011, President Obama issued Executive Order 13563, which directed all federal agencies to perform periodic retrospective reviews of existing regulations to determine whether any should be modified, streamlined, expanded, or repealed. 19 EPA made its preliminary plan available for public review and comment during the spring of 2011 and released the final version of the plan in August 2011. 20 Though EPA and its partners have made great progress in protecting the environment, the Agency is committed to continual improvement. EPA has a long history of thoughtfully examining its existing regulations to make sure they are effectively and efficiently meeting the needs of the American people. Both statutory and judicial obligations have compelled some of our reviews. Others arise from independent EPA decisions to improve upon existing regulations. Just as EPA intends to apply the principles and directives of Executive Order 13563 to the priority actions listed in the plan, we intend to likewise apply the Executive Order's principles and directives to the regulatory reviews that appear in the Regulatory Agenda. This proposed rule is one of the priority actions included in EPA's July 2015 progress report to OMB. 21 19 For a copy of Executive Order 13563, please see: http://www.gpo.gov/fdsys/pkg/FR-2011-01-21/pdf/2011-1385.pdf . 20 U.S. EPA. Improving Our Regulations: Final Plan for Periodic Retrospective Reviews of Existing Regulations. http://www.epa.gov/regdarrt/retrospective/documents/eparetroreviewplan-aug2011.pdf. 21 https://www.whitehouse.gov/sites/default/files/omb/inforeg/regreform/retroplans/july-2015/epa-retrospective-review.pdf. III. Summary of This Proposed Rule A. Changes to Section 260.10 In order to require that anyone acting as an exporter or importer, who does not otherwise physically handle hazardous waste, obtain an EPA ID number prior to arranging for export or import, it is necessary to add a definition that EPA Form 8700-12 can then reference. EPA is therefore proposing to define such persons as recognized traders, specifically as “a person domiciled in the United States, by site of business, who acts to arrange and facilitate transboundary movements of wastes destined for recovery or disposal operations, either by purchasing from and subsequently selling to U.S. and foreign facilities or by acting under arrangements with a U.S. waste facility to arrange for the export or import of the wastes.” EPA believes that this definition is consistent with the Amended 2001 OECD Decision's recognized trader definition of “a person who, with appropriate authorization of countries concerned, acts in the role of principal to purchase and subsequently sell wastes; this person has legal control of such wastes from time of purchase to time of sale; such a person may act to arrange and facilitate transboundary movements of wastes.” EPA had originally considered establishing a definition for “brokers,” but decided to use “recognized trader” to minimize confusion as there are brokers who make manifest-related arrangements for wholly domestic shipments of hazardous waste. EPA requests comment on these changes and what definitions would be clearest to U.S. stakeholders. B. Changes to Section 260.11(g)(1) EPA is proposing to replace the obsolete reference to the 1992 OECD Decision waste lists with the correct reference to the Amended 2001 OECD Decision waste lists. This is a necessary technical correction. C. Changes to Sections 261.4(d) and 261.4(e) EPA is proposing to add an additional condition for samples being exported to a foreign laboratory or imported from a foreign source that the exporter or importer wishes to manage under the waste characterization exclusion of § 261.4(d) or the treatability study exclusion of § 261.4(e). Specifically, EPA is proposing to require that any such samples being exported or imported be limited to a maximum quantity of 25 kilograms in addition to the other conditions already required. This change is being proposed to match the 25 kg limit for samples being excluded from the export and import requirements currently in § 262.82(g) of the OECD regulations, and is thus a clarification and not a new requirement for sample export and import shipments currently subject to 40 CFR part 262 subpart H. It will be a new requirement for sample export and import shipments being exchanged with Canada, Mexico, and any non-OECD country under RCRA regulations. While Canada currently reflects the 25 kg sample exclusion in its exclusion to the definition for hazardous waste recyclables in Section 2(2)(d) of the Canadian regulations 22 when being shipped between Canada and a country that is party to the Amended 2001 OECD Decision “. . . for the purpose of conducting measurements, tests or research with respect to the recycling of that material,” it is unclear to what extent the Canadian limits have impacted U.S. exporters and importers of such samples. EPA requests comments on the number of such samples that were exchanged with Canada, Mexico, or a non-OECD country for such testing in the last three years, and how many were over 25 kg and thus would be required to comply with the OECD regulations for exports or imports. 22 “Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations (SOR/2005-149),” issued in Canada Gazette on June 5, 2005, available online at http://ec.gc.ca/lcpe-cepa/eng/regulations/detailReg.cfm?intReg=84 . D. Changes to Section 261.6(a) EPA is proposing to revise the text in § 261.6(a)(3)(i) concerning imports and exports of industrial ethyl alcohol being shipped for reclamation to reflect the proposed removal of regulations in 40 CFR part 262 subpart E, and the proposal to require all export and import shipments of RCRA hazardous waste and recyclable materials currently subject to export and import requirements to comply with regulations in 40 CFR part 262 subpart H. This is a conforming amendment. Similarly, EPA is proposing conforming changes to the text in § 261.6(a)(5) concerning the applicability of 40 CFR part 262 subpart H requirements to all exports and imports of hazardous wastes being shipped for recycling. E. Changes to Section 261.39(a)(5) EPA is proposing changes to § 261.39(a)(5)(ii), (vi) and (xi) to reflect that export notifications, export renotifications and export annual reports concerning CRTs being shipped for recycling being submitted to EPA must be submitted electronically using EPA's hazardous waste import/export database on or after the effective date of the final rule. This proposed requirement assumes that the system changes can be completed in 2015 and tested by volunteer companies before issuance of the final rule. EPA requests comments on whether any transition period for electronic submittal into EPA's system is needed, an appropriate length for a transition period if one is needed, and whether any exporter would need a waiver from electronic filing requirements due to lack of broadband access or other unique circumstances that would make electronic filing an undue financial burden. Additionally, EPA is proposing to add the requirement in § 261.39(a)(5)(v) that exporters or U.S. authorized agents must file EPA-required information into the AES prior to departure in accordance with the deadlines specified in 15 CFR 30.4 ( e.g., for truck shipments, no less than one hour prior to the arrival of the truck at the U.S. border to go foreign) and provide the ITN documenting the successful filing to the outgoing transporter. The same U.S. authorized agents that currently file in the AES are intended to be allowed to continue such filings, but the RCRA exporter is ultimately responsible for ensuring that such filing occurs and that the ITN is provided to the outgoing transporter. AES system changes were made and posted in October 2014 and testing should be completed in 2015. Exporters or U.S. authorized agents using the AES will need to modify their filing software to incorporate the filing changes that will remain optional until EPA's final regulations become effective, but should be able to do so in the months between issuance of the final rule and the effective date of December 31, 2016 required to comply with Executive Order 13659. EPA is therefore proposing to require filing of EPA-specific information into the AES from the effective date of the final rule without any transition period. EPA requests comment on whether exporters currently file shipment data into the AES prior to departure, whether they or their U.S. authorized agents use the AES or AESDirect to file their shipment data, and whether a transition period would still be appropriate. F. Changes to Section 262.10(d) EPA is proposing conforming amendments to § 262.10(d) concerning the applicability of 40 CFR part 262 subpart H requirements to all exports and imports of hazardous wastes. Additionally, EPA is proposing to add the requirement that all such importers and exporters comply with the EPA ID number requirements in § 262.12. Currently importers and exporters who also generate, transport, treat, store or dispose of hazardous wastes are already required to obtain an EPA ID number because they generate, transport, treat, store or dispose of hazardous wastes. All importers, even those who do not also generate, transport, treat, store or dispose of hazardous wastes, are required to obtain EPA ID numbers because § 262.10(e) explicitly requires all importers to comply with the generator requirements. But it is unclear how many recognized traders arranging for import actually obtain an EPA ID number from the authorized state or EPA Regional office where their place of business is located. Moreover, recognized traders arranging for export that do not otherwise generate, transport, treat, store or dispose of hazardous wastes have no way to obtain an EPA ID number, as EPA Form 8700-12 does not cover such persons. This requirement will therefore impact such persons. EPA requests comment on how many persons arranging for import or export of hazardous wastes, including those wastes under the management standards of 40 CFR parts 266 and 273, do not currently have EPA ID numbers issued by their authorized state or EPA Regional office. G. Changes to Section 262.12 EPA is proposing to add new paragraph (d) to § 262.12 to require that recognized traders arranging for export and import obtain an EPA ID number from their authorized state or EPA Regional office before arranging for export or import. As discussed above, it is unclear how many persons will be affected by this requirement. EPA has assumed 1% of all current exporters and importers are recognized traders, and requests comment on the number of recognized traders that do not currently have EPA ID numbers. EPA further requests comment on how best to include such recognized traders in EPA Form 8700-12 and its associated instructions, and how or whether to reflect the recognized trader role in the EPA ID number itself ( e.g., disposal facility numbers typically have a “D” in the EPA ID number). H. Changes to Section 262.41(b) EPA is proposing conforming amendments to § 262.41(b) replacing the current citation to export annual report requirements in § 262.56 with the new location for export annual report requirements in § 262.83(g). I. Changes to 40 CFR Part 262 Subpart E EPA is proposing to remove 40 CFR part 262 subpart E and reserve for future use. The export requirements that are currently in 40 CFR part 262 subpart E that are still needed but not already covered under the current 40 CFR part 262 subpart H regulations are proposed to be moved to, and integrated in, the new 40 CFR part 262 subpart H regulations. For example, the definition in § 262.51 for EPA's AOC letter has been revised to more accurately reflect that the letter documents the consent of the importing country and any transit countries and moved to § 262.81 definitions. While the text of the Amended OECD 2001 Decision and the OECD regulations established in 1996 and amended in 2010 included exporters potentially receiving responses directly back from the countries of import and transit, in practice the notice and consent process under both 40 CFR part 262 subpart E and 40 CFR part 262 subpart H is solely a government to government process and all country responses are sent to EPA, which then documents those consents in the EPA AOC letter to the exporter. To more accurately reflect the actual process currently followed for both 40 CFR part 262 subparts E and H, Sections 262.53(e) and (f) detailing how EPA will forward complete notifications in conjunction with the Department of State as appropriate, address any claims of confidentiality made concerning any of the information listed in the notification, send the AOC letter to the exporter, and similarly send any country's objection or withdrawal of previous consent have been moved to § 262.83(b)(5) and (6). The text was modified slightly to reflect that the Amended 2001 OECD Decision requires that the country of import and the countries of transit all consent to the notification before shipment occurs. The older 40 CFR part 262 subpart E procedures technically allowed for issuance of the AOC letter based solely on the country of import's consent (see Section III.B.1 51 FR 28664 issued August 8, 1986). These changes reflect the actual process that currently takes place and should have no impact on exporters. In addition, the list of OECD member countries that are party to the Amended 2001 OECD Decision in § 262.58(a)(1) has been moved to a new definition for “OECD Member countries” in § 262.81. The implicit requirement in § 262.52(c) that the exporter obtain an EPA AOC letter prior to shipment has been made explicit and moved to § 262.83(a)(3). Renotification requirements originally listed in § 262.53(c) have been modified and moved to § 262.83(b)(4) to reflect that OECD notification procedures under the Amended 2001 OECD Decision do not exempt any changes to the original notification from needing consent to the changes. Under 40 CFR part 262 subpart E, changes to the exporter's phone number, decreases to the maximum requested export quantity and changes to the means of transport for the shipment were exempted from requiring renotification so long as nothing else in the notification changed. It is unclear how many such changes would be impacted by this requirement ( i.e., would be required to renotify and obtain consent to the renotification before shipping). EPA assumed zero additional renotifications due to this change and requests comment on the number of such exempted changes under 40 CFR part 262 subpart E that have occurred in the last three years and would be subject to renotification requirements under the proposed revisions. Currently, § 262.84(c) requires exporters to comply with § 262.54(a), (b), (c), (e) and (i) of the 40 CFR part 262 subpart E manifest requirements. Section § 262.54 has been moved to § 262.83(c) with some modifications to reflect that (1) the requirement to attach a copy of the EPA AOC letter has been replaced with the requirement to list the consent number specified in the EPA AOC letter for each waste listed on the RCRA manifest; (2) in cases where the exporter must instruct the transporter to return the waste to a facility in the United States and modify the manifest, such instructions must be made via email, fax or mail so that a written record of the instructions exist; and (3) the exporter needs to supply an extra copy of the RCRA manifest to the transporter only for cases where the exporter has chosen to use paper manifests rather than use the e-manifest system, as the requirement for the transporter to give a copy of the paper RCRA manifest to the CBP officer at the port of exit is being replaced with a requirement for the exporter to electronically file EPA-specific data in the AES to validate consent data prior to exit. The extra copy of the paper manifest is needed so that the transporter can send a copy of the manifest to the e-Manifest system using the allowable methods listed in 40 CFR 264.71(a)(2)(v), thus ensuring that the data from the paper manifest is captured in the e-manifest system. The exception reporting, annual reporting and recordkeeping sections of 40 CFR part 262 subpart E are duplicative of current 40 CFR part 262 subpart H requirements, and so did not additionally need to be moved to the new 40 CFR part 262 subpart H requirements. EPA requests comments on these proposed changes. J. Changes to 40 CFR Part 262 Subpart F EPA is proposing to remove 40 CFR part 262 subpart F and reserve for future use. The import RCRA manifest requirements in 40 CFR part 262 subpart F are required under the current 40 CFR part 262 subpart H requirements, and are therefore proposed to be moved to § 262.84(c) in the new 40 CFR part 262 subpart H requirements, with the added requirement for the importer to note that the shipment is an import and the shipment's point of entry ( i.e., port of entry and state) into the United States. While this requirement was not listed in 40 CFR part 262 subpart F, this is an existing requirement listed in the manifest instructions in the Appendix to Part 262 for item 16 of the RCRA manifest, and therefore should not result in any new burden. It has been added to the manifest requirements for import shipments in the new 40 CFR part 262 subpart H for clarity. EPA requests comments on these proposed changes. K. Changes to 40 CFR Part 262 Subpart H In general, EPA has reorganized and clarified exporter, importer, transporter and receiving facility requirements under 40 CFR part 262 subpart H. EPA's intent was to more accurately reflect the current procedures, expand applicability to all exports and imports of RCRA hazardous waste, and clearly spell out existing requirements for exports and imports. When the OECD procedures were originally incorporated into RCRA in 1996 and then updated in 2008, EPA largely used the text from the OECD Decision in the 40 CFR part 262 subpart H regulations. While this ensured that OECD procedures required under the 1992 OECD Decision and the Amended 2001 OECD Decision were fully reflected in the 40 CFR part 262 subpart H regulations, the resulting regulatory text made very generic references to country of export and country of import, without always clearly spelling out U.S. exporter and U.S. importer obligations and procedures. For example, under the current § 262.82(a)(2)(ii)(B), U.S. importers are required to assume the duties of the foreign exporter if the proposed waste shipment is RCRA hazardous waste but the country of export does not control the shipment as an export of hazardous waste. But the current 40 CFR part 262 subpart H requirements do not explicitly spell out what the U.S. importer would be required to comply with in such cases. Renotifications are not explicitly prohibited but neither are they explicitly allowed in the current 40 CFR part 262 subpart H, unlike the current 40 CFR part 262 subpart E. In practice, such renotifications have been done for exports subject to 40 CFR part 262 subpart H. EPA's intent in these changes and the others previously discussed is to clarify existing responsibilities for exports and imports, and not to increase requirements beyond that which is currently required in 40 CFR part 262 subpart H. In the new 40 CFR part 262 subpart H, retitled to reflect covering all transboundary shipments of hazardous waste for recovery or disposal, the sections for general applicability, definitions, and general conditions not specific to exports or imports remain in § 262.80, § 262.81, and § 262.82 respectively. But EPA proposes to amend § 262.83 from covering generic notification and consent to covering exports of hazardous waste, and to amend § 262.84 from covering generic movement document requirements to covering imports of hazardous waste. Within the new § 262.83 are subsections for (a) general export requirements, (b) notification requirements, including renotifications and notifications for re-export to a third country, (c) RCRA manifest instructions for export shipments, (d) OECD movement document requirements for export shipments, (e) the exporter's duty to return or re-export (to a third country) export shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be managed at an alternate facility in the country of import, (f) contract requirements, (g) annual reporting requirements, (h) exception reporting requirements, and (i) recordkeeping requirements. Within the new § 262.84 are subsections for (a) general import requirements, (b) notification requirements that apply only when the country of export does not control the proposed shipment as an export of hazardous waste, (c) RCRA manifest instructions for import shipments, (d) OECD movement document requirements for import shipments, (e) duty to return or re-export (to a third country) import shipments of waste that cannot be managed in accordance with the terms of the contract or consent and cannot be managed at an alternate facility in the United States, (f) contract requirements, (g) requirements for U.S. recycling or disposal facilities to issue confirmations of recovery or disposal for each import shipment, and (h) recordkeeping requirements for import shipments. Sections 262.85, 262.86, 262.87 and 262.88 are reserved for future use. Section 262.89 is amended from covering the OECD waste lists and the incorporation by reference of the OECD waste lists to also being reserved for future use. The incorporation by reference of the OECD waste lists will be covered under § 260.11(g). Under the revised definitions section, the older 40 CFR part 262 subpart H “exporter” definition has been broken into [U.S.] “exporter” and “foreign exporter”. Similarly, the “importer” definition has been split into [U.S.] importer and foreign importer, as has receiving facility. As under the current 40 CFR part 262 subpart H, exporters must be domiciled in the United States. To reflect that Canadian regulations uses wording for several recovery and disposal operation codes that differ from the description used in the OECD recovery and disposal codes, the list of operation codes included in the definitions for recovery and disposal codes have been revised to reflect that such Canada-only codes will start with a “RC” or a “DC”. For export and import notifications, the use of (1) the ISO standard 3166 country name 2-digit code and (2) OECD/Basel competent authority code are required to be listed for the relevant country of import or export and their respective competent authorities. Use of these codes is widely accepted internationally and the ISO standard 3166 country name 2-digit code is consistent with the country codes required in the AES. In cases where shipments cannot be delivered to the foreign receiving facility for any reason, the exporter is currently required to submit an exception report to EPA. Under the proposed revisions, the exporter is now required to submit the exception report to EPA within 30 days of the transporter missing the 45-day deadline to confirm the departure of the shipment from the United States or the foreign receiving facility missing the 90-day deadline to confirm receipt of the shipment, and required to submit the exception report to EPA within 30 days of being notified of the need to return the shipment, or one day prior to the initiation of the return shipment, whichever is sooner. EPA requests comments on whether the 30-day period is sufficient to ascertain what has happened to the export shipment. EPA requests comments on the reorganization and text changes, and whether additional revisions are needed to further clarify requirements for exports and imports while still ensuring compliance with procedures equivalent to those required for shipments currently subject to 40 CFR part 262 subpart H. As with the proposed changes to part 261 sections, EPA is proposing changes to export and import requirements in 40 CFR part 262 subpart H to reflect that export notifications, export renotifications, export annual reports, export exception reports, export confirmations of receipt, export certifications of recovery or disposal, import notifications, import confirmations of receipt, and import certifications of recovery or disposal being submitted to EPA must be submitted electronically using EPA's hazardous waste import/export database on or after the effective date of the final rule. EPA requests comments on whether any transition period for electronic submittal into EPA's system is needed, an appropriate length for a transition period if one is needed, and whether any exporter would need a waiver from electronic filing requirements due to lack of broadband access or other unique circumstances that would make electronic filing an undue financial burden. Additionally, EPA is similarly proposing to add the requirement in § 262.83(a)(6) that exporters or U.S. authorized agents must file EPA-required information into the AES prior to departure in accordance with the deadlines specified in 15 CFR 30.4 ( e.g., for truck shipments, no less than one hour prior to the arrival of the truck at the U.S. border to go foreign) and provide the ITN documenting the successful filing to the outgoing transporter. The same U.S. authorized agents that currently file in AES are intended to be allowed to continue such filings, but the RCRA exporter is ultimately responsible for ensuring that such filing occurs and that the ITN is provided to the outgoing transporter. AES system changes were made and posted in October 2014 and testing should be completed in 2015. Exporters or U.S. authorized agents using the AES will need to modify their filing software to incorporate the filing changes that will remain optional until EPA's final regulations become effective, but should be able to do so in the months between issuance of the final rule and the effective date of December 31, 2016 required to comply with Executive Order 13659. EPA is therefore proposing to require filing of EPA-specific information into the AES from the effective date of the final rule without any transition period. EPA requests comment on whether exporters currently file shipment data in the AES prior to departure, whether they or their U.S. authorized filing agents use the AES or AESDirect to file their shipment data, and whether a transition period would still be appropriate. L. Changes to the Appendix to Part 262 EPA is proposing conforming amendments to revise the instructions for Item 16 of the RCRA manifest instructions to reflect that transporters carrying export shipments will no longer be required to deliver a signed and dated copy of the RCRA manifest to CBP at the port of exit. This requirement is being replaced with the exporter requirement to file EPA consent-specific information as part of their Electronic Export Information filing in the AES so that the consent can be validated within the AES prior to departure. M. Conforming Changes to Parts 263 Through 267, 271, and 273 1. Conforming Changes to Standards Applicable to Transporters of Hazardous Waste in Part 263 EPA proposes to delete the last paragraph in the note to § 263.10(a). The last paragraph was included as part of the note in the original 1980 RCRA rulemaking to ease compliance, but was not removed or revised during the 1986 regulation amendments to reflect additional requirements in part 263, such as the export provisions in § 263.20(a). Additionally, the last paragraph cites obsolete regulatory sections in U.S Department of Transportation regulations. EPA consulted with U.S. Department of Transportation (DOT), and DOT approves deleting the last paragraph in the note. 23 EPA does not anticipate any change in burden due to this change, and requests comment on this change. 23 April 22, 2014 email from Dirk DerKinderen of U.S. Department of Transportation to Bryan Groce of EPA's Office of Resource Conservation and Recovery. Additionally, EPA proposes conforming amendments to § 263.10(d) to reflect the expanded and clarified applicability of 40 CFR part 262 subpart H requirements and the new 40 CFR part 262 subpart H sections for OECD movement document requirements for export and import shipments. EPA also proposes conforming amendments to § 263.20(a)(2), (c), (e)(2), (f)(2), and (g) to reflect that transporters will only be required to carry the OECD movement document and RCRA manifest for export and import shipments, will not be required to carry the EPA AOC letter with export shipments, and will not be required to give a copy of the RCRA manifest to CBP at the port of exit prior to departure. Transporters carrying a paper RCRA manifest for an export shipment will however be required to send a copy of the paper manifest to the e-manifest system using the allowable methods listed in 40 CFR 264.71(a)(2)(v) to ensure that data from export shipments using paper RCRA manifests are captured in the e-manifest system. EPA requests comments on these changes and whether any additional clarification is needed. 2. Conforming Changes to Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities in Part 264 EPA proposes conforming amendments to § 264.12 to reflect the expanded and clarified applicability of 40 CFR part 262 subpart H requirements, and the importer requirements in § 262.84. Additionally, EPA proposes deleting the requirement in § 264.12(a)(1) as it will be duplicative of notifications submitted by either the foreign exporter or the U.S. importer in cases where the country of export does not control the shipment as a hazardous waste export as this requirement would now, in this rule, apply to hazardous waste imports and exports with all foreign countries (including Canada and Mexico), and not just with OECD countries. Under the manifest requirements in § 264.71, EPA proposes conforming amendments to reflect the expanded applicability of 40 CFR part 262 subpart H, and further proposes replacing the current requirement (to attach a copy of the relevant EPA documentation of consent to the RCRA manifest) with the new requirement (to list the consent number for each waste from the relevant EPA documentation of consent in Item 14 of the RCRA manifest followed by the relevant list number for the waste from block 9b in parentheses) before submitting the manifest within thirty (30) days of shipment delivery to confirm receipt. This conforming amendment should enable compliance even when using the e-manifest system in the future, as the consent numbers could be typed into the text field for Item 14. Facilities using the e-manifest system to submit the RCRA manifest to confirm receipt would not need to send a separate copy to EPA's International Compliance Assurance Division. As under current 40 CFR part 262 subpart H procedures, facilities would need to submit copies of the signed movement document to confirm tracking from the shipment initiation in the country of export to the arrival at the U.S. facility, using the allowable submittal methods listed in 40 CFR part 262 subpart H. EPA requests comments on these changes and whether any additional clarification is needed. 3. Conforming Changes to Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facil [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-25348. Public record. Not legal advice.