82_FR_61140 82 FR 60894 - Confidentiality Determinations for Hazardous Waste Export and Import Documents

82 FR 60894 - Confidentiality Determinations for Hazardous Waste Export and Import Documents

ENVIRONMENTAL PROTECTION AGENCY

Federal Register Volume 82, Issue 246 (December 26, 2017)

Page Range60894-60901
FR Document2017-27525

The Environmental Protection Agency (EPA or the Agency) is amending existing regulations regarding the export and import of hazardous wastes from and into the United States. Specifically, this rule applies a confidentiality determination such that no person can assert confidential business information (CBI) claims for documents related to the export, import, and transit of hazardous waste and export of excluded cathode ray tubes (CRTs). EPA is making these changes to apply a consistent approach in addressing confidentiality claims for export and import documentation. The rule will result in cost-savings and greater efficiency for EPA and the regulated community as well as facilitate transparency with respect to the documents that are within the scope of this rulemaking. However, EPA is not finalizing the proposed internet posting requirement in the proposed rule.

Federal Register, Volume 82 Issue 246 (Tuesday, December 26, 2017)
[Federal Register Volume 82, Number 246 (Tuesday, December 26, 2017)]
[Rules and Regulations]
[Pages 60894-60901]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-27525]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 261, and 262

[EPA-HQ-OLEM-2016-0492; FRL-9971-49-OLEM]
RIN 2050-AG90


Confidentiality Determinations for Hazardous Waste Export and 
Import Documents

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA or the Agency) is 
amending existing regulations regarding the export and import of 
hazardous wastes from and into the United States. Specifically, this 
rule applies a confidentiality determination such that no person can 
assert confidential business information (CBI) claims for documents 
related to the export, import, and transit of hazardous waste and 
export of excluded cathode ray tubes (CRTs). EPA is making these 
changes to apply a consistent approach in addressing confidentiality 
claims for export and import documentation. The rule will result in 
cost-savings and greater efficiency for EPA and the regulated community 
as well as facilitate transparency with respect to the documents that 
are within the scope of this rulemaking. However, EPA is not finalizing 
the proposed internet posting requirement in the proposed rule.

DATES: The final rule is effective on June 26, 2018.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OLEM-2016-0492. All documents in the docket are listed at 
https://www.regulations.gov. Docket materials are also available in 
hard copy at the EPA Docket Center Reading Room. Please see https://www.epa.gov/dockets/epa-docket-center-reading-room or call (202) 566-
1744 for more information on the Docket Center Reading Room.

FOR FURTHER INFORMATION CONTACT: Lia Yohannes, Office of Resource 
Conservation and Recovery; telephone number: (703) 308-8413; email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. What is the Agency's authority for taking this action?

    EPA's authority to promulgate 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.

B. Does this action apply to me?

    The application of confidentiality determinations to RCRA export, 
import, and transit documents in this action generally affects three 
(3) groups: (1) All persons who export or import (or arrange for the 
export or import of) of 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; and (3) all persons who export (or arrange 
for the export of) conditionally excluded cathode ray tubes (CRTs) 
being shipped for recycling.
    Potentially affected entities may include, but are not limited to:

------------------------------------------------------------------------
            NAICS code                       NAICS description
------------------------------------------------------------------------
211..............................  Oil and Gas Extraction.
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.
522..............................  Credit Intermediation and Related
                                    Activities.
525..............................  Funds, Trusts, and Other Financial
                                    Vehicles.
531..............................  Real Estate.
541..............................  Professional, Scientific, and
                                    Technical Services.
561..............................  Administrative and Support Services.
562..............................  Waste Management and Remediation
                                    Services.
721..............................  Accommodation.
813..............................  Religious, Grantmaking, Civic,
                                    Professional, and Similar
                                    Organizations.
211..............................  Oil and Gas Extraction.
324..............................  Petroleum and Coal Products
                                    Manufacturing.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. If you have questions 
regarding the applicability of this rule to a particular entity, 
consult the person listed in the FOR FURTHER INFORMATION CONTACT 
section.

II. Background

    On November 28, 2016, EPA proposed revisions to the current RCRA 
regulations governing imports and exports of hazardous waste and 
certain other materials in parts 260, 262, 264, 265, and 267 in order 
to strengthen public accessibility and transparency of import and 
export-related documentation to better monitor proper compliance with 
EPA's hazardous waste regulations and help ensure that hazardous waste 
shipments are properly received and disposed (81 FR 85459). The 
internet Posting of and Confidentiality Determinations for Hazardous 
Waste Export and Import Documents Proposed Rule was a companion action 
to EPA's Hazardous

[[Page 60895]]

Waste Export-Import Revisions Final Rule (``Revisions Final Rule'') 
published on November 28, 2016 (81 FR 85696), which was one of the 
Agency's priority actions under its plan for periodic retrospective 
reviews of existing regulations, as required by Executive Order 13563. 
Under the Revisions Final Rule, export notices for hazardous waste and 
excluded CRTs exported for recycling are currently required to be 
submitted electronically to EPA using EPA's Waste Import Export 
Tracking System (WIETS) as of December 31, 2016. Export annual reports 
for hazardous waste and excluded CRTs exported for recycling will be 
required to be submitted electronically to EPA using WIETS on March 1, 
2019. Other import and export documents for hazardous waste and 
excluded CRTs exported for recycling are transitioning from paper 
submittal to electronic submittal, and will be required to be submitted 
electronically to EPA using WIETS on a future compliance date to be 
announced in a future, separate Federal Register notice.
    The proposed rulemaking for this final action consisted of two 
parts. First, EPA proposed requiring exporters and receiving facilities 
of hazardous waste from foreign sources to post confirmation of receipt 
and confirmation of recovery or disposal documents on publicly 
accessible websites when such documents are required for individual 
export and import shipments of hazardous wastes. EPA proposed that the 
documents be publicly accessible on company websites by the first of 
March of each year and that the websites include all of the 
confirmations of receipt and confirmations of recovery or disposal 
received by the exporter or sent out by the receiving facility related 
to exports or imports of hazardous waste made during the previous 
calendar year. Each document was to be made available for a period of 
at least three years following the date on which each document was 
first posted to the website. The proposed internet posting requirement 
was planned to be effective during the interim period prior to the 
electronic import-export reporting compliance date when electronic 
submittal to EPA of confirmations of receipt and confirmations of 
recovery or disposal for hazardous waste shipments will be required in 
EPA's WIETS system per the Revisions Final Rule. The second part of the 
proposed rule consisted of applying confidentiality determinations such 
that no person could assert CBI claims for individual documents and 
compiled data for required documents related to the export, import, and 
transit of hazardous waste and export of conditionally excluded cathode 
ray tubes (CRTs).

III. Detailed Discussion of the Final Rule

A. Summary of the Final Rule

    This section provides an overview of this final rule and describes 
the way in which it differs from the proposal. With this action, EPA 
finalizes the application of confidentiality determinations such that 
no CBI claims may be asserted by any person with respect to any of the 
following documents related to the export, import, and transit of 
hazardous waste and export of excluded CRTs:
    (1) Documents related to the export of Resource Conservation and 
Recovery Act (RCRA) hazardous waste under 40 CFR part 262, subpart H, 
including but not limited to the notifications of intent to export, 
contracts submitted in response to requests for supplemental 
information from countries of import or transit, RCRA manifests, annual 
reports, EPA acknowledgements of consent, any subsequent communication 
withdrawing a prior consent or objection, responses that neither 
consent nor object, exception reports, transit notifications, and 
renotifications;
    (2) Documents related to the import of hazardous waste, under 40 
CFR part 262, subpart H, including but not limited to contracts and 
notifications of intent to import hazardous waste into the U.S. from 
foreign countries or U.S. importers;
    (3) Documents related to the confirmation of receipt and 
confirmation of recovery or disposal of hazardous waste exports and 
imports, under 40 CFR part 262, subpart H;
    (4) Documents related to the transit of hazardous waste, under 40 
CFR part 262, subpart H, including notifications from U.S. exporters of 
intent to transit through foreign countries, or notifications from 
foreign countries of intent to transit through the U.S.;
    (5) Documents related to the export of cathode ray tubes (CRTs), 
under 40 CFR part 261, subpart E, including but not limited to 
notifications of intent to export CRTs;
    (6) Documents related to the export and import of non-crushed spent 
lead acid batteries (SLABs) with intact casings, under 40 CFR part 266 
subpart G, including but not limited to notifications of intent to 
export SLABs;
    (7) Submissions from transporters under 40 CFR part 263, or from 
treatment, storage or disposal facilities under 40 CFR parts 264 and 
265, related to exports or imports of hazardous waste, including but 
not limited to receiving facility notices of the need to arrange 
alternate management or return of an import shipment under 40 CFR 
264.12(a) and 265.12(a); and
    (8) Documents related to the export and import of RCRA universal 
waste under 40 CFR part 273, subparts B, C, D, and F.
    (9) Documents required under 40 CFR 262, subparts E, F, and H and 
submitted in accordance with consents issued prior to December 31, 
2016.
    Unless otherwise required by Federal law, EPA is not considering 
the documents described in items (1) through (9) in this preamble to be 
final until March 1 of the year after which the shipments occur.
    These changes will be reflected in revisions to 40 CFR part 260, as 
proposed, and in conforming revisions to 40 CFR parts 261 and 262.
    EPA is not finalizing the proposed internet posting requirement of 
confirmation of receipt and confirmation of recovery or disposal 
documents where they would have been required for individual export and 
import shipments of hazardous wastes. As required under the 
recordkeeping requirements for exports and imports of hazardous waste 
under 40 CFR part 262, subpart H, exporters and receiving facilities of 
hazardous waste from foreign sources are required to retain paper 
copies of such confirmations such that copies are available for viewing 
and production if requested by any EPA or authorized state inspector. 
Once electronic submittals of the confirmation documents are required 
after the electronic import-export reporting compliance date that EPA 
will establish in a separate Federal Register notice, electronically 
submitted confirmations can be retained in EPA's Waste Import Export 
Tracking System (WIETS), or its successor system, such that copies are 
available for viewing and production if requested by any EPA or 
authorized state inspector.

B. Summary of Public Comments

    The Agency received seven unique comments in response to its 
November 28, 2016 proposed rule. Of the seven comments, two were 
submitted anonymously, two were submitted from individual companies, 
one was submitted by a trade association representing hazardous waste 
treatment, recycling and disposal companies, one was submitted by a 
coalition representing generators of hazardous waste, and one was 
submitted by a trade association representing fuel and petrochemical 
manufacturers.

[[Page 60896]]

    With respect to the proposed internet posting requirement, two 
anonymous commenters expressed their support, stating that it would 
improve transparency and environmental awareness of the potential 
environmental and health risks associated with exposure to hazardous 
waste, and potentially lead to reduced generation and improved 
management of hazardous waste. The remaining five commenters from 
industry expressed concern with the proposed internet posting 
requirement. These commenters stated that EPA underestimated the costs 
associated with posting information on company websites and were 
apprehensive about the burden of complying with a temporary requirement 
that would be in place for an unspecified amount of time. Two 
commenters suggested that the lag in time between when the 
confirmations of receipt and confirmations of recovery or disposal are 
required to be sent and when the documents would be posted on company 
websites would cause confusion and an incorrect perception by the 
general public of mismanagement. Two commenters also suggested that 
requiring industry to submit export and import documentation to EPA, 
rather than post on individual company websites, would provide better 
consistency to the regulated community and ensure greater compliance 
with export and import regulations. Finally, one commenter suggested 
that EPA develop its own website to post the documents to improve 
public access to the information. (See Section ``II.C. Changes to the 
Proposed Rule'' of this preamble for EPA's rationale for not finalizing 
the proposed internet posting requirement.)
    EPA received only one comment on the proposed confidentiality 
determination. The commenter expressed concerns about the application 
of a confidentiality determination to aggregate data related to exports 
and imports of hazardous waste. EPA considers aggregate data to be a 
list of consolidated information about shipments organized by company. 
According to the commenter, the application of a confidentiality 
determination to aggregate data poses different concerns from those 
raised by application of confidentiality determinations to individual 
documents. The commenter was specifically concerned about the potential 
for competitive harm from public release of customer lists and issues 
related to national security if aggregate data about shipments were 
available to individuals with the intent to do harm. Because of the 
substantial effort required to compile a customer list from individual 
export and import documents, the commenter did not have similar 
concerns with respect to the release of individual hazardous waste 
export and import documents. (See response to comments document and 
Section ``II.D. Rationale for Final Rule'' of this preamble for details 
on EPA's response to these comments.)

C. Changes to the Proposed Rule

    After considering all the submitted comments, EPA is finalizing, as 
proposed, the application of confidentiality determinations to 
documents related to the export, import and transit of hazardous waste 
and export of excluded CRTs. We provide our rationale in the following 
section. EPA is not finalizing the proposed internet posting 
requirement that exporters and receiving facilities of hazardous waste 
from foreign sources upload confirmations of receipt and confirmations 
of recovery or disposal on their websites. This internet posting 
requirement was intended to be in effect on a temporary basis while EPA 
develops its Waste Import Export Tracking System (WIETS) to be able to 
receive electronic submittals of the documents. Recognizing that the 
internet posting requirement would be superseded when exporters and 
receiving facilities are required to submit confirmations 
electronically, EPA has decided to avoid the potential confusion as 
described by some commenters, that may result from requiring internet 
posting of documents on a temporary basis on company websites and from 
the time lag between the receipt and posting of confirmations of 
receipt and confirmations of recovery or disposal.

D. Rationale for the Final Rule

    This final rule applies confidentiality determinations such that 
EPA will no longer accept future CBI claims for individual documents 
and/or aggregate data related to the export, import, and transit of 
hazardous waste and export of excluded CRTs. EPA is making these 
changes to apply a consistent approach in addressing confidentiality 
claims for export and import documentation which will result in cost-
savings and greater efficiency for EPA and the regulated community. 
Moreover, as described in the proposed rulemaking, EPA will no longer 
publish the annual Federal Register notice requesting comment from 
third party affected businesses (other than original submitters), as 
defined in 40 CFR 2.201(d), on their need to assert confidentiality 
claims for documents submitted to EPA related to hazardous waste 
exports and imports as well as data compiled from such documents, prior 
to EPA considering such documents releasable upon public request. The 
Federal Register notice covers documents related to the export, import 
and transit of RCRA hazardous waste, including those 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), and related to the 
export of CRTs under 40 CFR part 261, made during the previous calendar 
year. The annual Federal Register notices have not addressed CBI claims 
likely to be made by the original submitters, since RCRA regulations at 
40 CFR 260.2(b) already address the CBI requirements for original 
submitters.
    Our rationale for applying confidentiality determinations to these 
documents is summarized in the following paragraphs.
    As discussed in the proposed rulemaking, application of 
confidentiality determinations is consistent with the non-CBI treatment 
of hazardous waste manifests at the Federal and state level. Manifests 
contain similar information as that required by the documents related 
to the export, import and transit of hazardous waste and export of 
conditionally excluded CRTs within the scope of this action. On 
February 7, 2014, EPA published the Hazardous Waste Management System; 
Modification of the Hazardous Waste Manifest System; Electronic 
Manifests final rule (79 FR 7518) which made a categorical 
determination for individual RCRA hazardous waste manifest records and 
aggregate data. In that action, EPA concluded that information 
contained in individual manifested records and aggregate data are 
essentially public information and therefore is not eligible under 
Federal law for treatment as CBI. The effect of this decision was that 
EPA made a categorical determination that it will not accept any CBI 
claims that might be asserted in connection with processing, using, or 
retaining individual paper or electronic manifests or aggregate data 
(see 40 CFR 260.2(c)(1)). The decision in that action is consistent 
with how manifests are treated in many states that have policies that 
do not recognize CBI claims for manifests as individual documents or as 
aggregate data. Because the information contained in RCRA hazardous 
waste manifests is largely similar to the information contained in 
hazardous waste export and import documents,

[[Page 60897]]

such as information about the waste being shipped (waste codes, type, 
quantity) and contact information for the generator, transporter, and 
destination or receiving facility, EPA concludes that application of 
confidentiality determinations in this action is consistent with the 
categorical determination that electronic manifests are not CBI.
    Furthermore, EPA believes that any CBI claim that might be asserted 
with respect to the hazardous waste documents within the scope of this 
action would be extremely difficult to sustain under the substantive 
CBI criteria set forth in the Agency's CBI regulations (40 CFR part 2, 
subpart B). For example, to make a CBI claim, a business must 
satisfactorily show that it has taken reasonable measures to protect 
the confidentiality of the information, and that it intends to continue 
to take such measures. The documents related to the export, import, and 
transit of hazardous waste and export of excluded CRTs submitted to EPA 
are also shared with several commercial entities while they are being 
processed and used. As a result, a business concerned with protecting 
its commercial information would find it exceedingly difficult to 
protect its records from disclosure by all the other persons who come 
into contact with the documents.
    Moreover, to substantiate a CBI claim, a business must also show 
that the information is not, and has not been, reasonably obtainable 
without the business's consent by other persons (other than 
governmental bodies) by use of legitimate means (other than discovery 
based on a showing of special need in a judicial or quasi-judicial 
proceeding). Since the documents are shared with several commercial 
entities throughout the chain of custody of a hazardous waste shipment, 
they are easily accessible to other parties without the business's 
explicit consent.
    For these reasons, EPA believes that any CBI claim that might be 
asserted with respect to hazardous waste export and import documents 
would be difficult to sustain under the substantive CBI criteria (40 
CFR part 2, subpart B).
    EPA has also established precedent in determining that the 
information contained in certain hazardous waste export documents is 
not entitled to confidential treatment. To date, our records indicate 
that EPA has received four assertions of confidentiality for documents 
within the scope of this action and for which EPA has made a CBI 
determination: One from Horizon Environment, Inc. in 2004, two from 
Johnson Controls Battery Group, Inc. in 2010 and 2011, and one from 
Waste Technologies Industries in 1994. In three of the four cases, the 
Agency determined that the information claimed as confidential was not 
entitled to confidential treatment.
    In the confidentiality claims presented by Horizon Environment, 
Inc. and Johnson Controls Battery Group, Inc., both companies asserted 
confidentiality for certain hazardous waste export documents that were 
responsive to Freedom of Information Act (FOIA) requests to EPA. The 
FOIA, 5 U.S.C. 552(a), section 3007(b) of RCRA, and EPA regulations 
implementing the FOIA and RCRA section 3007(b) generally mandate the 
disclosure to the public of information and records in the possession 
of government agencies. However, there are nine categories of 
information that may be exempt from disclosure, and one such category 
of information (Exemption 4) is for ``trade secrets and commercial 
information obtained from a person and privileged or confidential'' 
(see 5 U.S.C. 552(b)(4)). Under these statutes and regulations, 
``business information'' means information which pertains to the 
interests of a business, was acquired or developed by the business, and 
which is possessed by EPA in a recorded form (see 40 CFR 2.201(c)). 
Such business information may be claimed by an ``affected business'' to 
be entitled to treatment as CBI if the business information is a 
``trade secret'' or other type of proprietary information which 
produces business or competitive advantages for the business, such that 
the business has a legally protected right to limit the use of the 
information or its disclosure to others. See Sec.  2.201(e).
    In order for information to meet the requirements of Exemption 4, 
EPA must find that the information is either (1) a trade secret; or (2) 
commercial or financial information obtained from a person and 
privileged or confidential (commonly referred to as ``Confidential 
Business Information'' (CBI)). Horizon Environment's claims related to 
export notices, and Johnson Controls Battery Group's claims related to 
annual reports. Both companies claimed the information to be 
confidential, but did not claim that the information was privileged. 
Information that is required to be submitted to the Government is 
confidential if its ``disclosure would be likely either (1) to impair 
the Government' s ability to obtain necessary information in the 
future; or (2) to cause substantial harm to the competitive position of 
the person from whom the information was obtained.''' Critical Mass, 
975 F.2d at 878 (quoting National Parks and Conservation Association v. 
Morton, 498 F.2d 765, 770 (DC Cir. 1974)) (footnote omitted). In these 
cases, the Agency had the authority to require the submission of the 
information and exercised it. Therefore, EPA concluded that the 
information was a required submission and was not voluntary.
    EPA also found that the information the companies claimed as 
confidential did not meet EPA's CBI criteria. As set forth in EPA's 
regulations at 40 CFR 2.208, required business information is entitled 
to confidential treatment if: The business has satisfactorily shown 
that disclosure of the information is likely to cause substantial harm 
to the business's competitive position. After careful consideration of 
the arguments submitted by both companies, EPA concluded that neither 
claim explained specifically how disclosure of the information in the 
submissions would likely cause substantial competitive harm to the 
companies, and therefore did not support the claim of competitive harm. 
Accordingly, EPA concluded that release of this was not likely to cause 
substantial harm to the companies' competitive positions.
    As a result of these analyses, EPA found that the information the 
companies claimed as confidential was not within the scope of Exemption 
4 of the FOIA.
    For the fourth confidentiality claim submitted by Waste 
Technologies Industries in 1994, EPA determined that the identities and 
addresses of the foreign generators listed in its import notification 
letters were entitled to confidential treatment under EPA's criteria 
(40 CFR 2.208). Since that time, EPA promulgated the Electronic 
Manifest final rule in which it was determined that manifests and the 
data contained therein are not CBI (79 FR 7518). Because the contact 
information of foreign generators is a required data element on 
manifests, this information is no longer treated as confidential. EPA 
found the record pertaining to this case after the proposed rule was 
published.
    Based on EPA's analysis and decision in three of the four 
confidentiality claims asserted by companies for their hazardous waste 
export notices and annual reports, EPA expects to similarly conclude 
that these and the other documents within the scope of this rulemaking 
are not entitled to confidential treatment. As for the fourth decision 
in the Waste Technologies Industries' claim, EPA's more recent 
determination that manifests are no longer CBI supersedes the decision 
to withhold the information as confidential in 1994.

[[Page 60898]]

    Finally, EPA has never received a claim of confidentiality from a 
third-party business with respect to hazardous waste export and import 
documentation. As described previously, EPA issues a Federal Register 
notice each year requesting comment from affected businesses (other 
than original submitters), as defined in 40 CFR 2.201(d), on their need 
to assert confidentiality claims for documents submitted to EPA related 
to hazardous waste exports and imports as well as data compiled from 
such documents, prior to EPA considering such documents releasable upon 
public request. To date, EPA has never received a comment from any 
business not an original submitter as a result of the annual Federal 
Register notice.
    EPA received one comment in response to our request for input about 
applying confidentiality determinations to individual documents and 
aggregate data related to hazardous waste export and import shipments. 
In its comment, a trade association for the hazardous waste treatment 
industry expressed concern about the ability of competitors to gain an 
unfair advantage from access to aggregate export and import data. The 
commenter also indicated that access to aggregate data could pose 
national security concerns if sensitive shipment information were 
available to parties with malicious intent. The commenter stated that 
aggregate shipment data are a more efficient means to gain access to 
customer lists and export and import patterns compared to individual 
documents, which would require significant cost and labor to compile. 
However, as stated previously, at the Federal level and in many states, 
CBI claims are not accepted with respect to individual or aggregate 
manifest data. The main difference between the manifest and the export 
and import documents is that the manifest provides information on 
domestic management of hazardous waste shipments, while the export and 
import documents provide information related to both the domestic and 
the international part of those shipments. Because the information 
contained in hazardous waste export and import documents is so similar 
to that contained in manifests, EPA believes that it is appropriate to 
treat the domestic and international shipping documents the same.
    Nonetheless, while EPA is not accepting CBI claims for either 
individual documents or aggregate data related to exports and imports, 
EPA recognizes that the information in its possession may not be ready 
for general release to the public because it is not yet ``final.'' As 
with manifests, hazardous waste exporters, importers, receiving 
facilities and brokers acting on their behalf need sufficient time to 
address discrepancies or exceptions related to hazardous waste 
shipments and to verify and correct data recorded on their documents. 
Until such time as these corrections can be made and data can be 
verified and finalized, the data in these documents, just as in 
manifests, will be considered ``in process.'' To that end, unless 
otherwise required by Federal law, EPA is not considering such 
documents to be final until March 1 of the year after which the 
shipments occur. EPA believes this timeframe is responsive to the 
concerns about competitive harm and national security risk with respect 
to access to aggregate data. EPA believes that this relatively long 
timeframe also makes it more likely that the shipment will have been 
received and the waste recovered or disposed by the time the documents 
are considered final.
    Furthermore, in response to the national security concerns raised 
by commenters on the proposed rule and on the e-manifest user fee 
proposed rule (81 FR 49072, July 26, 2016), EPA has consulted with the 
Department of Homeland Security (DHS) to determine whether public 
access to certain shipment information in the e-Manifest system poses a 
significant chemical security risk and if so, the action the Agency 
should take to mitigate that risk. Because the export and import data 
are similar to the data collected on manifests, EPA will apply 
mitigating measures to manage export and import data in a manner 
consistent with those implemented by the e-Manifest system.

III. Costs and Benefits of the Final Rule

A. Cost Impacts

    The Agency conducted an economic assessment for the proposed rule 
to this action which evaluated costs, cost savings, benefits, and other 
impacts, such as environmental justice, children's health, unfunded 
mandates, regulatory takings, and small entity impacts. The costs 
incurred by the regulated community under the proposed rule were 
associated with the proposed internet posting requirement only. Because 
EPA is not finalizing the proposed internet posting requirement, there 
are no costs associated with this action and the economic assessment 
conducted for the proposed rule no longer applies. Rather, the final 
rule reduces burden and results in cost-savings.

B. Benefits

    There are a number of qualitative benefits associated with this 
final rule. By providing a consistent approach to addressing 
confidentiality claims with respect to the documents within the scope 
of this rulemaking, this action will result in cost-savings and greater 
efficiency to both the regulated community and EPA. The Agency will not 
incur the costs associated with developing and publishing the annual 
Federal Register notice requesting comment from affected businesses 
(other than original submitters), as defined in 40 CFR 2.201(d), on 
their need to assert confidentiality claims for documents submitted to 
EPA related to hazardous waste exports and imports. Industry cost-
savings result from the avoided costs associated with reading and 
responding to the Federal Register notice. Furthermore, this action 
will achieve greater transparency by excluding export and import 
documents from CBI claims.

IV. State Authorization

A. Applicability of Rules in Authorized States

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

[[Page 60899]]

the statute to implement these requirements and prohibitions in 
authorized States, including the issuance of permits, until the State 
is granted authorization to do so. While States must still adopt HSWA 
related provisions as State law to retain final authorization, EPA 
implements the HSWA provisions in authorized States until the States do 
so.
    Authorized States are required to modify their programs only when 
EPA enacts Federal requirements that are more stringent or broader in 
scope than existing Federal requirements. RCRA section 3009 allows the 
States to impose standards more stringent than those in the Federal 
program (see also 40 CFR 271.1). Therefore, authorized States may, but 
are not required to, adopt Federal regulations, both HSWA and non-HSWA, 
that are considered less stringent than previous Federal regulations.

B. Effect on State Authorization

    Because of the Federal government's special role in matters of 
foreign policy, EPA does not authorize States to administer Federal 
import/export functions in any section of the RCRA hazardous waste 
regulations. This approach of having Federal, rather than State, 
administering of the import/export functions promotes national 
coordination, uniformity and the expeditious transmission of 
information between the United States and foreign countries.
    Although States do not receive authorization to administer the 
Federal government's import/export functions in 40 CFR part 262, 
subpart H, or the import/export relation functions in any other section 
of the RCRA hazardous waste regulations, State programs are still 
required to adopt the provisions in this rule to maintain their 
equivalency with the Federal program (see 40 CFR 271.10(e)).
    This final rule contains amendments to 40 CFR 260.2 such that no 
claim of business confidentiality may be asserted by any person with 
respect to information from cathode ray tube export documents prepared, 
used and submitted under Sec. Sec.  261.39(a)(5) and 261.41(a) and 
hazardous waste export, import, and transit documents prepared, used 
and submitted under Sec. Sec.  262.82, 262.83, 262.84, 263.20, 264.12, 
264.71, 265.12, 265.71, and 267.71.
    The States that have previously adopted 40 CFR part 262, subparts 
E, F and H, 40 CFR part 263, 40 CFR part 264, 40 CFR part 265, and any 
other import/export related regulations, and that will be adopting the 
revisions in the Hazardous Waste Export-Import Revisions Final Rule (81 
FR 85696) must adopt the revisions to those provisions in this final 
rule. But only States that have previously adopted the optional CRT 
conditional exclusion in 40 CFR 261.39 are required to adopt the 
revisions related to that exclusion in this final rule.
    When a State adopts the import/export provisions in this rule, they 
must not replace Federal or international references or terms with 
State references or terms.
    The provisions of this rule will take effect in all States on the 
effective date of the rule, since these export and import requirements 
will be administered by the Federal government as a foreign policy 
matter, and will not be administered by States.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This final rule is a non-significant regulatory action because it 
does not have a significant economic impact nor does it raise novel 
legal or policy issues. The Office of Management and Budget (OMB) 
waived review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. This final rule provides burden reduction by providing a 
consistent approach to addressing confidentiality claims with respect 
to the documents within the scope of this rulemaking. As a result, this 
action will result in cost-savings and greater efficiency for industry 
and EPA. EPA will no longer expend resources to publish an annual 
Federal Register notice related to confidential business information 
and industry will avoid the costs and burden associated with reading 
and responding to the annual Federal Register notice.

C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the PRA because it does not contain any information collection 
activities.

D. Regulatory Flexibility Act (RFA)

    EPA certifies that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. The small entities subject to the 
requirements of this action are hazardous waste exporters, importers, 
receiving facilities and brokers acting on their behalf. There are no 
costs associated with this action; rather, the final rule results in 
cost-savings. We have therefore concluded that this action will relieve 
regulatory burden for all directly regulated small entities.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. Thus, it is not 
subject to Sections 202, 203, and 205 of the Unfunded Mandates Reform 
Act of 1995 (Pub. L. 104-4).

F. Executive Order 13132: Federalism

    This action does not have federalism implications because the state 
and local governments do not administer the export and import 
requirements under RCRA. It will not have substantial direct effects on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government.

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

    This action does not have tribal implications as specified in 
Executive Order 13175. No exporters, importers or transporters affected 
by this action are known to be owned by Tribal governments or located 
within or adjacent to Tribal lands. Thus, Executive Order 13175 does 
not apply to this action.

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

    This action is not subject to Executive Order 13045 because it is 
not economically significant as defined in Executive Order 12866, and 
because EPA does not believe the environmental health or safety risks 
addressed by this action present a disproportionate risk to children.

[[Page 60900]]

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

    This action is not subject to Executive Order 13211 because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations, and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994), 
because this action only applies a confidentiality determination such 
that no person can assert confidential business information (CBI) 
claims for documents related to the export, import, and transit of 
hazardous waste and export of excluded cathode ray tubes (CRTs).

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects

40 CFR Part 260

    Environmental protection, Cathode ray tubes (CRTs), Confidential 
business information, Exports, Hazardous waste, Imports, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Cathode ray tubes (CRTs), Confidential 
business information, Hazardous waste, Reporting and recordkeeping 
requirements.

40 CFR Part 262

    Environmental protection, Confidential business information, 
Exports, Hazardous waste, Imports, Reporting and recordkeeping 
requirements.

    Dated: December 11, 2017.
E. Scott Pruitt,
Administrator.

    For the reasons stated in the preamble, EPA amends 40 CFR parts 
260, 261, and 262 as follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

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


0
2. Amend Sec.  260.2 by revising paragraph (b) and adding paragraph (d) 
to read as follows:


Sec.  260.2  Availability of information; confidentiality of 
information.

* * * * *
    (b) Except as provided under paragraphs (c) and (d) of this 
section, any person who submits information to EPA in accordance with 
parts 260 through 266 and 268 of this chapter may assert a claim of 
business confidentiality covering part or all of that information by 
following the procedures set forth in Sec.  2.203(b) of this chapter. 
Information covered by such a claim will be disclosed by EPA only to 
the extent, and by means of the procedures, set forth in part 2, 
subpart B, of this chapter.
* * * * *
    (d)(1) After June 26, 2018, no claim of business confidentiality 
may be asserted by any person with respect to information contained in 
cathode ray tube export documents prepared, used and submitted under 
Sec. Sec.  261.39(a)(5) and 261.41(a) of this chapter, and with respect 
to information contained in hazardous waste export, import, and transit 
documents prepared, used and submitted under Sec. Sec.  262.82, 262.83, 
262.84, 263.20, 264.12, 264.71, 265.12, 265.71, and 267.71 of this 
chapter, whether submitted electronically into EPA's Waste Import 
Export Tracking System or in paper format.
    (2) EPA will make any cathode ray tube export documents prepared, 
used and submitted under Sec. Sec.  261.39(a)(5) and 261.41(a) of this 
chapter, and any hazardous waste export, import, and transit documents 
prepared, used and submitted under Sec. Sec.  262.82, 262.83, 262.84, 
263.20, 264.12, 264.71, 265.12, 265.71, and 267.71 of this chapter 
available to the public under this section when these electronic or 
paper documents are considered by EPA to be final documents. These 
submitted electronic and paper documents related to hazardous waste 
exports, imports and transits and cathode ray tube exports are 
considered by EPA to be final documents on March 1 of the calendar year 
after the related cathode ray tube exports or hazardous waste exports, 
imports, or transits occur.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
3. The authority citation for part 261 continues to read as follows:

    Authority:  42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and 
6938.


0
4. Amend Sec.  261.39 by revising paragraph (a)(5)(iv) to read as 
follows:


Sec.  261.39  Conditional Exclusion for Used, Broken Cathode Ray Tubes 
(CRTs) and Processed CRT Glass Undergoing Recycling.

* * * * *
    (a) * * *
    (5) * * *
    (iv) EPA will provide a complete notification to the receiving 
country and any transit countries. A notification is complete when EPA 
receives a notification which EPA determines satisfies the requirements 
of paragraph (a)(5)(i) of this section.
* * * * *

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
5. The authority citation for part 262 continues to read as follows:

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


0
6. Amend Sec.  262.83 by revising paragraphs (b)(5) and (f)(9) to read 
as follows:


Sec.  262.83   Exports of hazardous waste.

* * * * *
    (b) * * *
    (5) For cases where the proposed country of import and recovery or 
disposal operations are not covered under an international agreement to 
which both the United States and the country of import are parties, EPA 
will coordinate with the Department of State to provide the complete 
notification to country of import and any countries of transit. In all 
other cases, EPA will provide the notification directly to the country 
of import and any countries of transit. A notification is complete when 
EPA receives a notification which EPA determines satisfies the 
requirements of paragraphs (b)(1)(i) through (xiii) of this section.
* * * * *
    (f) * * *
    (9) Upon request by EPA, U.S. exporters, importers, or recovery 
facilities must submit to EPA copies of

[[Page 60901]]

contracts, chain of contracts, or equivalent arrangements (when the 
movement occurs between parties controlled by the same corporate or 
legal entity).
* * * * *


0
7. Amend Sec.  262.84 by revising paragraphs (b)(4) and (f)(8) to read 
as follows:


Sec.  262.84  Imports of hazardous waste.

* * * * *
    (b) * * *
    (4) A notification is complete when EPA determines the notification 
satisfies the requirements of paragraphs (b)(1)(i) through (xiii) of 
this section.
* * * * *
    (f) * * *
    (8) Upon request by EPA, importers or disposal or recovery 
facilities must submit to EPA copies of contracts, chain of contracts, 
or equivalent arrangements (when the movement occurs between parties 
controlled by the same corporate or legal entity).
* * * * *
[FR Doc. 2017-27525 Filed 12-22-17; 8:45 am]
 BILLING CODE 6560-50-P



                                             60894            Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations

                                                                                                                  Polymer                                                                      CAS No.


                                                       *                       *                       *                      *                       *                      *                  *



                                             [FR Doc. 2017–27805 Filed 12–22–17; 8:45 am]            number: (703) 308–8413; email:                         NAICS                NAICS description
                                             BILLING CODE 6560–50–P                                  yohannes.lia@epa.gov.                                   code
                                                                                                     SUPPLEMENTARY INFORMATION:
                                                                                                                                                           334 ......   Computer and Electronic Product
                                             ENVIRONMENTAL PROTECTION                                I. General Information                                               Manufacturing.
                                                                                                                                                           335 ......   Electrical Equipment, Appliance,
                                             AGENCY                                                  A. What is the Agency’s authority for                                and Component Manufacturing.
                                                                                                     taking this action?                                   336 ......   Transportation Equipment Manufac-
                                             40 CFR Parts 260, 261, and 262
                                                                                                                                                                          turing.
                                                                                                       EPA’s authority to promulgate this                  339 ......   Miscellaneous Manufacturing.
                                             [EPA–HQ–OLEM–2016–0492; FRL–9971–                       rule is found in sections 1002, 2002(a),              423 ......   Merchant Wholesalers, Durable
                                             49–OLEM]                                                3001–3004, and 3017 of the Solid Waste                               Goods.
                                             RIN 2050–AG90
                                                                                                     Disposal Act, as amended by the                       424 ......   Merchant Wholesalers, Nondurable
                                                                                                     Resource Conservation and Recovery                                   Goods.
                                                                                                     Act (RCRA), and as amended by the                     522 ......   Credit Intermediation and Related
                                             Confidentiality Determinations for
                                                                                                     Hazardous and Solid Waste                                            Activities.
                                             Hazardous Waste Export and Import                                                                             525 ......   Funds, Trusts, and Other Financial
                                             Documents                                               Amendments, 42 U.S.C. 6901 et seq.,
                                                                                                                                                                          Vehicles.
                                                                                                     6912, 6921–6924, and 6938.                            531 ......   Real Estate.
                                             AGENCY:  Environmental Protection                                                                             541 ......   Professional, Scientific, and Tech-
                                             Agency (EPA).                                           B. Does this action apply to me?
                                                                                                                                                                          nical Services.
                                             ACTION: Final rule.                                        The application of confidentiality                 561 ......   Administrative and Support Serv-
                                                                                                     determinations to RCRA export, import,                               ices.
                                             SUMMARY:    The Environmental Protection                and transit documents in this action                  562 ......   Waste Management and Remedi-
                                             Agency (EPA or the Agency) is                           generally affects three (3) groups: (1) All                          ation Services.
                                             amending existing regulations regarding                 persons who export or import (or                      721 ......   Accommodation.
                                             the export and import of hazardous                                                                            813 ......   Religious, Grantmaking, Civic, Pro-
                                                                                                     arrange for the export or import of) of                              fessional, and Similar Organiza-
                                             wastes from and into the United States.                 hazardous waste for recycling or                                     tions.
                                             Specifically, this rule applies a                       disposal, including those hazardous                   211 ......   Oil and Gas Extraction.
                                             confidentiality determination such that                 wastes subject to the alternate                       324 ......   Petroleum and Coal Products Man-
                                             no person can assert confidential                       management standards for (a) universal                               ufacturing.
                                             business information (CBI) claims for                   waste for recycling or disposal, (b) spent
                                             documents related to the export, import,                lead-acid batteries (SLABs) being                        This table is not intended to be
                                             and transit of hazardous waste and                      shipped for reclamation, (c) industrial               exhaustive, but rather provides a guide
                                             export of excluded cathode ray tubes                    ethyl alcohol being shipped for                       for readers regarding entities likely to be
                                             (CRTs). EPA is making these changes to                  reclamation, (d) hazardous waste                      regulated by this action. This table lists
                                             apply a consistent approach in                          samples of more than 25 kilograms                     the types of entities that EPA is now
                                             addressing confidentiality claims for                   being shipped for waste characterization              aware could potentially be regulated by
                                             export and import documentation. The                    or treatability studies, and (e) hazardous            this action. Other types of entities not
                                             rule will result in cost-savings and                    recyclable materials being shipped for                listed in the table could also be
                                             greater efficiency for EPA and the                      precious metal recovery; (2) all                      regulated. If you have questions
                                             regulated community as well as                          recycling and disposal facilities who                 regarding the applicability of this rule to
                                             facilitate transparency with respect to                 receive imports of such hazardous                     a particular entity, consult the person
                                             the documents that are within the scope                 wastes for recycling or disposal; and (3)             listed in the FOR FURTHER INFORMATION
                                             of this rulemaking. However, EPA is not                 all persons who export (or arrange for                CONTACT section.
                                             finalizing the proposed internet posting                the export of) conditionally excluded                 II. Background
                                             requirement in the proposed rule.                       cathode ray tubes (CRTs) being shipped
                                                                                                                                                              On November 28, 2016, EPA proposed
                                             DATES: The final rule is effective on June              for recycling.
                                                                                                                                                           revisions to the current RCRA
                                             26, 2018.                                                  Potentially affected entities may                  regulations governing imports and
                                             ADDRESSES: EPA has established a                        include, but are not limited to:                      exports of hazardous waste and certain
                                             docket for this action under Docket ID                                                                        other materials in parts 260, 262, 264,
                                             No. EPA–HQ–OLEM–2016–0492. All                           NAICS                 NAICS description              265, and 267 in order to strengthen
                                                                                                       code
                                             documents in the docket are listed at                                                                         public accessibility and transparency of
                                             https://www.regulations.gov. Docket                     211 ......   Oil and Gas Extraction.                  import and export-related
                                             materials are also available in hard copy               324 ......   Petroleum and Coal Products Man-         documentation to better monitor proper
                                             at the EPA Docket Center Reading                                       ufacturing.                            compliance with EPA’s hazardous waste
                                             Room. Please see https://www.epa.gov/                   325 ......   Chemical Manufacturing.                  regulations and help ensure that
                                             dockets/epa-docket-center-reading-room                  326 ......   Plastics and Rubber Products Man-        hazardous waste shipments are properly
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                                             or call (202) 566–1744 for more                                        ufacturing.
                                                                                                                                                           received and disposed (81 FR 85459).
                                             information on the Docket Center                        327 ......   Nonmetallic Mineral Product Manu-
                                                                                                                    facturing.                             The internet Posting of and
                                             Reading Room.                                                                                                 Confidentiality Determinations for
                                                                                                     331 ......   Primary Metal Manufacturing.
                                             FOR FURTHER INFORMATION CONTACT: Lia                    332 ......   Fabricated Metal Product Manufac-        Hazardous Waste Export and Import
                                             Yohannes, Office of Resource                                           turing.                                Documents Proposed Rule was a
                                             Conservation and Recovery; telephone                    333 ......   Machinery Manufacturing.                 companion action to EPA’s Hazardous


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                                                              Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations                                      60895

                                             Waste Export-Import Revisions Final                     the export, import, and transit of                    to exports or imports of hazardous
                                             Rule (‘‘Revisions Final Rule’’) published               hazardous waste and export of                         waste, including but not limited to
                                             on November 28, 2016 (81 FR 85696),                     conditionally excluded cathode ray                    receiving facility notices of the need to
                                             which was one of the Agency’s priority                  tubes (CRTs).                                         arrange alternate management or return
                                             actions under its plan for periodic                                                                           of an import shipment under 40 CFR
                                                                                                     III. Detailed Discussion of the Final                 264.12(a) and 265.12(a); and
                                             retrospective reviews of existing
                                                                                                     Rule                                                     (8) Documents related to the export
                                             regulations, as required by Executive
                                             Order 13563. Under the Revisions Final                  A. Summary of the Final Rule                          and import of RCRA universal waste
                                             Rule, export notices for hazardous waste                                                                      under 40 CFR part 273, subparts B, C,
                                                                                                        This section provides an overview of
                                             and excluded CRTs exported for                                                                                D, and F.
                                                                                                     this final rule and describes the way in                 (9) Documents required under 40 CFR
                                             recycling are currently required to be                  which it differs from the proposal. With
                                             submitted electronically to EPA using                                                                         262, subparts E, F, and H and submitted
                                                                                                     this action, EPA finalizes the                        in accordance with consents issued
                                             EPA’s Waste Import Export Tracking                      application of confidentiality
                                             System (WIETS) as of December 31,                                                                             prior to December 31, 2016.
                                                                                                     determinations such that no CBI claims                   Unless otherwise required by Federal
                                             2016. Export annual reports for                         may be asserted by any person with
                                             hazardous waste and excluded CRTs                                                                             law, EPA is not considering the
                                                                                                     respect to any of the following                       documents described in items (1)
                                             exported for recycling will be required                 documents related to the export, import,
                                             to be submitted electronically to EPA                                                                         through (9) in this preamble to be final
                                                                                                     and transit of hazardous waste and                    until March 1 of the year after which the
                                             using WIETS on March 1, 2019. Other                     export of excluded CRTs:
                                             import and export documents for                                                                               shipments occur.
                                                                                                        (1) Documents related to the export of                These changes will be reflected in
                                             hazardous waste and excluded CRTs                       Resource Conservation and Recovery                    revisions to 40 CFR part 260, as
                                             exported for recycling are transitioning                Act (RCRA) hazardous waste under 40                   proposed, and in conforming revisions
                                             from paper submittal to electronic                      CFR part 262, subpart H, including but                to 40 CFR parts 261 and 262.
                                             submittal, and will be required to be                   not limited to the notifications of intent               EPA is not finalizing the proposed
                                             submitted electronically to EPA using                   to export, contracts submitted in                     internet posting requirement of
                                             WIETS on a future compliance date to                    response to requests for supplemental                 confirmation of receipt and
                                             be announced in a future, separate                      information from countries of import or               confirmation of recovery or disposal
                                             Federal Register notice.                                transit, RCRA manifests, annual reports,              documents where they would have been
                                                The proposed rulemaking for this                     EPA acknowledgements of consent, any                  required for individual export and
                                             final action consisted of two parts. First,             subsequent communication                              import shipments of hazardous wastes.
                                             EPA proposed requiring exporters and                    withdrawing a prior consent or                        As required under the recordkeeping
                                             receiving facilities of hazardous waste                 objection, responses that neither                     requirements for exports and imports of
                                             from foreign sources to post                            consent nor object, exception reports,                hazardous waste under 40 CFR part 262,
                                             confirmation of receipt and                             transit notifications, and renotifications;           subpart H, exporters and receiving
                                             confirmation of recovery or disposal                       (2) Documents related to the import of             facilities of hazardous waste from
                                             documents on publicly accessible                        hazardous waste, under 40 CFR part                    foreign sources are required to retain
                                             websites when such documents are                        262, subpart H, including but not                     paper copies of such confirmations such
                                             required for individual export and                      limited to contracts and notifications of             that copies are available for viewing and
                                             import shipments of hazardous wastes.                   intent to import hazardous waste into                 production if requested by any EPA or
                                             EPA proposed that the documents be                      the U.S. from foreign countries or U.S.               authorized state inspector. Once
                                             publicly accessible on company                          importers;                                            electronic submittals of the
                                             websites by the first of March of each                     (3) Documents related to the                       confirmation documents are required
                                             year and that the websites include all of               confirmation of receipt and                           after the electronic import-export
                                             the confirmations of receipt and                        confirmation of recovery or disposal of               reporting compliance date that EPA will
                                             confirmations of recovery or disposal                   hazardous waste exports and imports,                  establish in a separate Federal Register
                                             received by the exporter or sent out by                 under 40 CFR part 262, subpart H;                     notice, electronically submitted
                                             the receiving facility related to exports                  (4) Documents related to the transit of            confirmations can be retained in EPA’s
                                             or imports of hazardous waste made                      hazardous waste, under 40 CFR part                    Waste Import Export Tracking System
                                             during the previous calendar year. Each                 262, subpart H, including notifications               (WIETS), or its successor system, such
                                             document was to be made available for                   from U.S. exporters of intent to transit              that copies are available for viewing and
                                             a period of at least three years following              through foreign countries, or                         production if requested by any EPA or
                                             the date on which each document was                     notifications from foreign countries of               authorized state inspector.
                                             first posted to the website. The                        intent to transit through the U.S.;
                                             proposed internet posting requirement                      (5) Documents related to the export of             B. Summary of Public Comments
                                             was planned to be effective during the                  cathode ray tubes (CRTs), under 40 CFR                  The Agency received seven unique
                                             interim period prior to the electronic                  part 261, subpart E, including but not                comments in response to its November
                                             import-export reporting compliance                      limited to notifications of intent to                 28, 2016 proposed rule. Of the seven
                                             date when electronic submittal to EPA                   export CRTs;                                          comments, two were submitted
                                             of confirmations of receipt and                            (6) Documents related to the export                anonymously, two were submitted from
                                             confirmations of recovery or disposal for               and import of non-crushed spent lead                  individual companies, one was
                                             hazardous waste shipments will be                       acid batteries (SLABs) with intact                    submitted by a trade association
                                             required in EPA’s WIETS system per the                                                                        representing hazardous waste treatment,
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                                                                                                     casings, under 40 CFR part 266 subpart
                                             Revisions Final Rule. The second part of                G, including but not limited to                       recycling and disposal companies, one
                                             the proposed rule consisted of applying                 notifications of intent to export SLABs;              was submitted by a coalition
                                             confidentiality determinations such that                   (7) Submissions from transporters                  representing generators of hazardous
                                             no person could assert CBI claims for                   under 40 CFR part 263, or from                        waste, and one was submitted by a trade
                                             individual documents and compiled                       treatment, storage or disposal facilities             association representing fuel and
                                             data for required documents related to                  under 40 CFR parts 264 and 265, related               petrochemical manufacturers.


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                                             60896            Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations

                                                With respect to the proposed internet                to do harm. Because of the substantial                confidentiality claims for documents
                                             posting requirement, two anonymous                      effort required to compile a customer                 submitted to EPA related to hazardous
                                             commenters expressed their support,                     list from individual export and import                waste exports and imports as well as
                                             stating that it would improve                           documents, the commenter did not have                 data compiled from such documents,
                                             transparency and environmental                          similar concerns with respect to the                  prior to EPA considering such
                                             awareness of the potential                              release of individual hazardous waste                 documents releasable upon public
                                             environmental and health risks                          export and import documents. (See                     request. The Federal Register notice
                                             associated with exposure to hazardous                   response to comments document and                     covers documents related to the export,
                                             waste, and potentially lead to reduced                  Section ‘‘II.D. Rationale for Final Rule’’            import and transit of RCRA hazardous
                                             generation and improved management                      of this preamble for details on EPA’s                 waste, including those hazardous wastes
                                             of hazardous waste. The remaining five                  response to these comments.)                          managed under the special management
                                             commenters from industry expressed                                                                            standards in 40 CFR part 266 (e.g., spent
                                                                                                     C. Changes to the Proposed Rule
                                             concern with the proposed internet                                                                            lead acid batteries) and 40 CFR part 273
                                             posting requirement. These commenters                     After considering all the submitted                 (e.g., universal waste batteries, universal
                                             stated that EPA underestimated the                      comments, EPA is finalizing, as                       waste mercury lamps), and related to
                                             costs associated with posting                           proposed, the application of                          the export of CRTs under 40 CFR part
                                             information on company websites and                     confidentiality determinations to                     261, made during the previous calendar
                                             were apprehensive about the burden of                   documents related to the export, import               year. The annual Federal Register
                                             complying with a temporary                              and transit of hazardous waste and                    notices have not addressed CBI claims
                                             requirement that would be in place for                  export of excluded CRTs. We provide                   likely to be made by the original
                                             an unspecified amount of time. Two                      our rationale in the following section.               submitters, since RCRA regulations at
                                             commenters suggested that the lag in                    EPA is not finalizing the proposed                    40 CFR 260.2(b) already address the CBI
                                             time between when the confirmations of                  internet posting requirement that                     requirements for original submitters.
                                             receipt and confirmations of recovery or                exporters and receiving facilities of                    Our rationale for applying
                                             disposal are required to be sent and                    hazardous waste from foreign sources                  confidentiality determinations to these
                                             when the documents would be posted                      upload confirmations of receipt and                   documents is summarized in the
                                             on company websites would cause                         confirmations of recovery or disposal on              following paragraphs.
                                             confusion and an incorrect perception                   their websites. This internet posting                    As discussed in the proposed
                                                                                                     requirement was intended to be in effect              rulemaking, application of
                                             by the general public of
                                                                                                     on a temporary basis while EPA                        confidentiality determinations is
                                             mismanagement. Two commenters also
                                                                                                     develops its Waste Import Export                      consistent with the non-CBI treatment of
                                             suggested that requiring industry to
                                                                                                     Tracking System (WIETS) to be able to                 hazardous waste manifests at the
                                             submit export and import
                                                                                                     receive electronic submittals of the                  Federal and state level. Manifests
                                             documentation to EPA, rather than post
                                                                                                     documents. Recognizing that the                       contain similar information as that
                                             on individual company websites, would
                                                                                                     internet posting requirement would be                 required by the documents related to the
                                             provide better consistency to the
                                                                                                     superseded when exporters and                         export, import and transit of hazardous
                                             regulated community and ensure greater
                                                                                                     receiving facilities are required to                  waste and export of conditionally
                                             compliance with export and import
                                                                                                     submit confirmations electronically,                  excluded CRTs within the scope of this
                                             regulations. Finally, one commenter                     EPA has decided to avoid the potential                action. On February 7, 2014, EPA
                                             suggested that EPA develop its own                      confusion as described by some                        published the Hazardous Waste
                                             website to post the documents to                        commenters, that may result from                      Management System; Modification of
                                             improve public access to the                            requiring internet posting of documents               the Hazardous Waste Manifest System;
                                             information. (See Section ‘‘II.C. Changes               on a temporary basis on company                       Electronic Manifests final rule (79 FR
                                             to the Proposed Rule’’ of this preamble                 websites and from the time lag between                7518) which made a categorical
                                             for EPA’s rationale for not finalizing the              the receipt and posting of confirmations              determination for individual RCRA
                                             proposed internet posting requirement.)                 of receipt and confirmations of recovery              hazardous waste manifest records and
                                                EPA received only one comment on                     or disposal.                                          aggregate data. In that action, EPA
                                             the proposed confidentiality                                                                                  concluded that information contained in
                                             determination. The commenter                            D. Rationale for the Final Rule
                                                                                                                                                           individual manifested records and
                                             expressed concerns about the                               This final rule applies confidentiality            aggregate data are essentially public
                                             application of a confidentiality                        determinations such that EPA will no                  information and therefore is not eligible
                                             determination to aggregate data related                 longer accept future CBI claims for                   under Federal law for treatment as CBI.
                                             to exports and imports of hazardous                     individual documents and/or aggregate                 The effect of this decision was that EPA
                                             waste. EPA considers aggregate data to                  data related to the export, import, and               made a categorical determination that it
                                             be a list of consolidated information                   transit of hazardous waste and export of              will not accept any CBI claims that
                                             about shipments organized by company.                   excluded CRTs. EPA is making these                    might be asserted in connection with
                                             According to the commenter, the                         changes to apply a consistent approach                processing, using, or retaining
                                             application of a confidentiality                        in addressing confidentiality claims for              individual paper or electronic manifests
                                             determination to aggregate data poses                   export and import documentation                       or aggregate data (see 40 CFR
                                             different concerns from those raised by                 which will result in cost-savings and                 260.2(c)(1)). The decision in that action
                                             application of confidentiality                          greater efficiency for EPA and the                    is consistent with how manifests are
                                             determinations to individual                            regulated community. Moreover, as                     treated in many states that have policies
                                             documents. The commenter was                            described in the proposed rulemaking,
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                                                                                                                                                           that do not recognize CBI claims for
                                             specifically concerned about the                        EPA will no longer publish the annual                 manifests as individual documents or as
                                             potential for competitive harm from                     Federal Register notice requesting                    aggregate data. Because the information
                                             public release of customer lists and                    comment from third party affected                     contained in RCRA hazardous waste
                                             issues related to national security if                  businesses (other than original                       manifests is largely similar to the
                                             aggregate data about shipments were                     submitters), as defined in 40 CFR                     information contained in hazardous
                                             available to individuals with the intent                2.201(d), on their need to assert                     waste export and import documents,


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                                                              Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations                                       60897

                                             such as information about the waste                     2010 and 2011, and one from Waste                     National Parks and Conservation
                                             being shipped (waste codes, type,                       Technologies Industries in 1994. In                   Association v. Morton, 498 F.2d 765,
                                             quantity) and contact information for                   three of the four cases, the Agency                   770 (DC Cir. 1974)) (footnote omitted).
                                             the generator, transporter, and                         determined that the information                       In these cases, the Agency had the
                                             destination or receiving facility, EPA                  claimed as confidential was not entitled              authority to require the submission of
                                             concludes that application of                           to confidential treatment.                            the information and exercised it.
                                             confidentiality determinations in this                     In the confidentiality claims                      Therefore, EPA concluded that the
                                             action is consistent with the categorical               presented by Horizon Environment, Inc.                information was a required submission
                                             determination that electronic manifests                 and Johnson Controls Battery Group,                   and was not voluntary.
                                             are not CBI.                                            Inc., both companies asserted                            EPA also found that the information
                                               Furthermore, EPA believes that any                    confidentiality for certain hazardous                 the companies claimed as confidential
                                             CBI claim that might be asserted with                   waste export documents that were                      did not meet EPA’s CBI criteria. As set
                                             respect to the hazardous waste                          responsive to Freedom of Information                  forth in EPA’s regulations at 40 CFR
                                             documents within the scope of this                      Act (FOIA) requests to EPA. The FOIA,                 2.208, required business information is
                                             action would be extremely difficult to                  5 U.S.C. 552(a), section 3007(b) of                   entitled to confidential treatment if: The
                                             sustain under the substantive CBI                       RCRA, and EPA regulations                             business has satisfactorily shown that
                                             criteria set forth in the Agency’s CBI                  implementing the FOIA and RCRA                        disclosure of the information is likely to
                                             regulations (40 CFR part 2, subpart B).                 section 3007(b) generally mandate the                 cause substantial harm to the business’s
                                             For example, to make a CBI claim, a                     disclosure to the public of information               competitive position. After careful
                                             business must satisfactorily show that it               and records in the possession of                      consideration of the arguments
                                             has taken reasonable measures to                        government agencies. However, there                   submitted by both companies, EPA
                                             protect the confidentiality of the                      are nine categories of information that               concluded that neither claim explained
                                             information, and that it intends to                     may be exempt from disclosure, and one                specifically how disclosure of the
                                             continue to take such measures. The                     such category of information                          information in the submissions would
                                             documents related to the export, import,                (Exemption 4) is for ‘‘trade secrets and              likely cause substantial competitive
                                             and transit of hazardous waste and                      commercial information obtained from a                harm to the companies, and therefore
                                             export of excluded CRTs submitted to                    person and privileged or confidential’’               did not support the claim of competitive
                                             EPA are also shared with several                        (see 5 U.S.C. 552(b)(4)). Under these                 harm. Accordingly, EPA concluded that
                                             commercial entities while they are being                statutes and regulations, ‘‘business                  release of this was not likely to cause
                                             processed and used. As a result, a                      information’’ means information which                 substantial harm to the companies’
                                             business concerned with protecting its                  pertains to the interests of a business,              competitive positions.
                                             commercial information would find it                    was acquired or developed by the                         As a result of these analyses, EPA
                                             exceedingly difficult to protect its                    business, and which is possessed by                   found that the information the
                                             records from disclosure by all the other                EPA in a recorded form (see 40 CFR                    companies claimed as confidential was
                                             persons who come into contact with the                  2.201(c)). Such business information                  not within the scope of Exemption 4 of
                                             documents.                                              may be claimed by an ‘‘affected                       the FOIA.
                                               Moreover, to substantiate a CBI claim,                business’’ to be entitled to treatment as                For the fourth confidentiality claim
                                             a business must also show that the                      CBI if the business information is a                  submitted by Waste Technologies
                                             information is not, and has not been,                   ‘‘trade secret’’ or other type of                     Industries in 1994, EPA determined that
                                             reasonably obtainable without the                       proprietary information which produces                the identities and addresses of the
                                             business’s consent by other persons                     business or competitive advantages for                foreign generators listed in its import
                                             (other than governmental bodies) by use                 the business, such that the business has              notification letters were entitled to
                                             of legitimate means (other than                         a legally protected right to limit the use            confidential treatment under EPA’s
                                             discovery based on a showing of special                 of the information or its disclosure to               criteria (40 CFR 2.208). Since that time,
                                             need in a judicial or quasi-judicial                    others. See § 2.201(e).                               EPA promulgated the Electronic
                                             proceeding). Since the documents are                       In order for information to meet the               Manifest final rule in which it was
                                             shared with several commercial entities                 requirements of Exemption 4, EPA must                 determined that manifests and the data
                                             throughout the chain of custody of a                    find that the information is either (1) a             contained therein are not CBI (79 FR
                                             hazardous waste shipment, they are                      trade secret; or (2) commercial or                    7518). Because the contact information
                                             easily accessible to other parties without              financial information obtained from a                 of foreign generators is a required data
                                             the business’s explicit consent.                        person and privileged or confidential                 element on manifests, this information
                                               For these reasons, EPA believes that                  (commonly referred to as ‘‘Confidential               is no longer treated as confidential. EPA
                                             any CBI claim that might be asserted                    Business Information’’ (CBI)). Horizon                found the record pertaining to this case
                                             with respect to hazardous waste export                  Environment’s claims related to export                after the proposed rule was published.
                                             and import documents would be                           notices, and Johnson Controls Battery                    Based on EPA’s analysis and decision
                                             difficult to sustain under the substantive              Group’s claims related to annual                      in three of the four confidentiality
                                             CBI criteria (40 CFR part 2, subpart B).                reports. Both companies claimed the                   claims asserted by companies for their
                                               EPA has also established precedent in                 information to be confidential, but did               hazardous waste export notices and
                                             determining that the information                        not claim that the information was                    annual reports, EPA expects to similarly
                                             contained in certain hazardous waste                    privileged. Information that is required              conclude that these and the other
                                             export documents is not entitled to                     to be submitted to the Government is                  documents within the scope of this
                                             confidential treatment. To date, our                    confidential if its ‘‘disclosure would be             rulemaking are not entitled to
                                             records indicate that EPA has received                                                                        confidential treatment. As for the fourth
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                                                                                                     likely either (1) to impair the
                                             four assertions of confidentiality for                  Government’ s ability to obtain                       decision in the Waste Technologies
                                             documents within the scope of this                      necessary information in the future; or               Industries’ claim, EPA’s more recent
                                             action and for which EPA has made a                     (2) to cause substantial harm to the                  determination that manifests are no
                                             CBI determination: One from Horizon                     competitive position of the person from               longer CBI supersedes the decision to
                                             Environment, Inc. in 2004, two from                     whom the information was obtained.’’’                 withhold the information as
                                             Johnson Controls Battery Group, Inc. in                 Critical Mass, 975 F.2d at 878 (quoting               confidential in 1994.


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                                             60898            Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations

                                                Finally, EPA has never received a                    waste exporters, importers, receiving                 B. Benefits
                                             claim of confidentiality from a third-                  facilities and brokers acting on their                   There are a number of qualitative
                                             party business with respect to                          behalf need sufficient time to address                benefits associated with this final rule.
                                             hazardous waste export and import                       discrepancies or exceptions related to                By providing a consistent approach to
                                             documentation. As described                             hazardous waste shipments and to                      addressing confidentiality claims with
                                             previously, EPA issues a Federal                        verify and correct data recorded on their             respect to the documents within the
                                             Register notice each year requesting                    documents. Until such time as these                   scope of this rulemaking, this action
                                             comment from affected businesses                        corrections can be made and data can be               will result in cost-savings and greater
                                             (other than original submitters), as                    verified and finalized, the data in these             efficiency to both the regulated
                                             defined in 40 CFR 2.201(d), on their                                                                          community and EPA. The Agency will
                                                                                                     documents, just as in manifests, will be
                                             need to assert confidentiality claims for                                                                     not incur the costs associated with
                                                                                                     considered ‘‘in process.’’ To that end,
                                             documents submitted to EPA related to                                                                         developing and publishing the annual
                                             hazardous waste exports and imports as                  unless otherwise required by Federal
                                                                                                     law, EPA is not considering such                      Federal Register notice requesting
                                             well as data compiled from such                                                                               comment from affected businesses
                                             documents, prior to EPA considering                     documents to be final until March 1 of
                                                                                                     the year after which the shipments                    (other than original submitters), as
                                             such documents releasable upon public                                                                         defined in 40 CFR 2.201(d), on their
                                             request. To date, EPA has never                         occur. EPA believes this timeframe is
                                                                                                                                                           need to assert confidentiality claims for
                                             received a comment from any business                    responsive to the concerns about
                                                                                                                                                           documents submitted to EPA related to
                                             not an original submitter as a result of                competitive harm and national security
                                                                                                                                                           hazardous waste exports and imports.
                                             the annual Federal Register notice.                     risk with respect to access to aggregate              Industry cost-savings result from the
                                                EPA received one comment in                          data. EPA believes that this relatively               avoided costs associated with reading
                                             response to our request for input about                 long timeframe also makes it more likely              and responding to the Federal Register
                                             applying confidentiality determinations                 that the shipment will have been                      notice. Furthermore, this action will
                                             to individual documents and aggregate                   received and the waste recovered or                   achieve greater transparency by
                                             data related to hazardous waste export                  disposed by the time the documents are                excluding export and import documents
                                             and import shipments. In its comment,                   considered final.                                     from CBI claims.
                                             a trade association for the hazardous
                                             waste treatment industry expressed                         Furthermore, in response to the                    IV. State Authorization
                                             concern about the ability of competitors                national security concerns raised by
                                                                                                     commenters on the proposed rule and                   A. Applicability of Rules in Authorized
                                             to gain an unfair advantage from access                                                                       States
                                             to aggregate export and import data. The                on the e-manifest user fee proposed rule
                                             commenter also indicated that access to                 (81 FR 49072, July 26, 2016), EPA has                    Under section 3006 of RCRA, EPA
                                             aggregate data could pose national                      consulted with the Department of                      may authorize qualified States to
                                             security concerns if sensitive shipment                 Homeland Security (DHS) to determine                  administer their own hazardous waste
                                             information were available to parties                   whether public access to certain                      programs in lieu of the Federal program
                                             with malicious intent. The commenter                    shipment information in the e-Manifest                within the State. Following
                                             stated that aggregate shipment data are                 system poses a significant chemical                   authorization, EPA retains enforcement
                                             a more efficient means to gain access to                security risk and if so, the action the               authority under sections 3008, 3013,
                                             customer lists and export and import                    Agency should take to mitigate that risk.             and 7003 of RCRA, although authorized
                                             patterns compared to individual                         Because the export and import data are                States have primary enforcement
                                             documents, which would require                          similar to the data collected on                      responsibility. The standards and
                                             significant cost and labor to compile.                  manifests, EPA will apply mitigating                  requirements for State authorization are
                                             However, as stated previously, at the                   measures to manage export and import                  found at 40 CFR part 271. Prior to
                                             Federal level and in many states, CBI                                                                         enactment of the Hazardous and Solid
                                                                                                     data in a manner consistent with those
                                             claims are not accepted with respect to                                                                       Waste Amendments of 1984 (HSWA), a
                                                                                                     implemented by the e-Manifest system.
                                             individual or aggregate manifest data.                                                                        State with final RCRA authorization
                                             The main difference between the                         III. Costs and Benefits of the Final Rule             administered its hazardous waste
                                             manifest and the export and import                                                                            program entirely in lieu of EPA
                                                                                                     A. Cost Impacts                                       administering the Federal program in
                                             documents is that the manifest provides
                                             information on domestic management of                     The Agency conducted an economic                    that State. The Federal requirements no
                                             hazardous waste shipments, while the                    assessment for the proposed rule to this              longer applied in the authorized State,
                                             export and import documents provide                     action which evaluated costs, cost                    and EPA could not issue permits for any
                                             information related to both the domestic                                                                      facilities in that State, since only the
                                                                                                     savings, benefits, and other impacts,
                                             and the international part of those                                                                           State was authorized to issue RCRA
                                                                                                     such as environmental justice,
                                             shipments. Because the information                                                                            permits. When new, more stringent
                                                                                                     children’s health, unfunded mandates,
                                             contained in hazardous waste export                                                                           Federal requirements were promulgated,
                                                                                                     regulatory takings, and small entity                  the State was obligated to enact
                                             and import documents is so similar to
                                                                                                     impacts. The costs incurred by the                    equivalent authorities within specified
                                             that contained in manifests, EPA
                                                                                                     regulated community under the                         time frames. However, the new Federal
                                             believes that it is appropriate to treat the
                                             domestic and international shipping                     proposed rule were associated with the                requirements did not take effect in an
                                             documents the same.                                     proposed internet posting requirement                 authorized State until the State adopted
                                                Nonetheless, while EPA is not                        only. Because EPA is not finalizing the               the Federal requirements as State law.
                                                                                                     proposed internet posting requirement,                   In contrast, under RCRA section
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                                             accepting CBI claims for either
                                             individual documents or aggregate data                  there are no costs associated with this               3006(g) (42 U.S.C. 6926(g)), which was
                                             related to exports and imports, EPA                     action and the economic assessment                    added by HSWA, new requirements and
                                             recognizes that the information in its                  conducted for the proposed rule no                    prohibitions imposed under HSWA
                                             possession may not be ready for general                 longer applies. Rather, the final rule                authority take effect in authorized States
                                             release to the public because it is not yet             reduces burden and results in cost-                   at the same time that they take effect in
                                             ‘‘final.’’ As with manifests, hazardous                 savings.                                              unauthorized States. EPA is directed by


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                                                              Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations                                       60899

                                             the statute to implement these                          Revisions Final Rule (81 FR 85696)                    under the RFA. In making this
                                             requirements and prohibitions in                        must adopt the revisions to those                     determination, the impact of concern is
                                             authorized States, including the                        provisions in this final rule. But only               any significant adverse economic
                                             issuance of permits, until the State is                 States that have previously adopted the               impact on small entities. An agency may
                                             granted authorization to do so. While                   optional CRT conditional exclusion in                 certify that a rule will not have a
                                             States must still adopt HSWA related                    40 CFR 261.39 are required to adopt the               significant economic impact on a
                                             provisions as State law to retain final                 revisions related to that exclusion in                substantial number of small entities if
                                             authorization, EPA implements the                       this final rule.                                      the rule relieves regulatory burden, has
                                             HSWA provisions in authorized States                       When a State adopts the import/                    no net burden or otherwise has a
                                             until the States do so.                                 export provisions in this rule, they must             positive economic effect on the small
                                                Authorized States are required to                    not replace Federal or international                  entities subject to the rule. The small
                                             modify their programs only when EPA                     references or terms with State references             entities subject to the requirements of
                                             enacts Federal requirements that are                    or terms.                                             this action are hazardous waste
                                             more stringent or broader in scope than                    The provisions of this rule will take              exporters, importers, receiving facilities
                                             existing Federal requirements. RCRA                     effect in all States on the effective date            and brokers acting on their behalf. There
                                             section 3009 allows the States to impose                of the rule, since these export and                   are no costs associated with this action;
                                             standards more stringent than those in                  import requirements will be                           rather, the final rule results in cost-
                                             the Federal program (see also 40 CFR                    administered by the Federal government                savings. We have therefore concluded
                                             271.1). Therefore, authorized States                    as a foreign policy matter, and will not              that this action will relieve regulatory
                                             may, but are not required to, adopt                     be administered by States.                            burden for all directly regulated small
                                             Federal regulations, both HSWA and                                                                            entities.
                                             non-HSWA, that are considered less                      V. Statutory and Executive Order
                                             stringent than previous Federal                         Reviews                                               E. Unfunded Mandates Reform Act
                                             regulations.                                              Additional information about these                  (UMRA)
                                             B. Effect on State Authorization                        statutes and Executive Orders can be                    This action does not contain an
                                                                                                     found at https://www.epa.gov/laws-                    unfunded mandate of $100 million or
                                                Because of the Federal government’s                  regulations/laws-and-executive-orders.                more as described in UMRA, 2 U.S.C.
                                             special role in matters of foreign policy,                                                                    1531–1538, and does not significantly or
                                             EPA does not authorize States to                        A. Executive Order 12866: Regulatory
                                                                                                                                                           uniquely affect small governments.
                                             administer Federal import/export                        Planning and Review and Executive
                                                                                                                                                           Thus, it is not subject to Sections 202,
                                             functions in any section of the RCRA                    Order 13563: Improving Regulation and
                                                                                                                                                           203, and 205 of the Unfunded Mandates
                                             hazardous waste regulations. This                       Regulatory Review
                                                                                                                                                           Reform Act of 1995 (Pub. L. 104–4).
                                             approach of having Federal, rather than                   This final rule is a non-significant
                                             State, administering of the import/                     regulatory action because it does not                 F. Executive Order 13132: Federalism
                                             export functions promotes national                      have a significant economic impact nor                   This action does not have federalism
                                             coordination, uniformity and the                        does it raise novel legal or policy issues.           implications because the state and local
                                             expeditious transmission of information                 The Office of Management and Budget                   governments do not administer the
                                             between the United States and foreign                   (OMB) waived review.                                  export and import requirements under
                                             countries.                                                                                                    RCRA. It will not have substantial direct
                                                Although States do not receive                       B. Executive Order 13771: Reducing
                                                                                                                                                           effects on the states, on the relationship
                                             authorization to administer the Federal                 Regulations and Controlling Regulatory
                                                                                                                                                           between the national government and
                                             government’s import/export functions                    Costs
                                                                                                                                                           the states, or on the distribution of
                                             in 40 CFR part 262, subpart H, or the                      This action is considered an                       power and responsibilities among the
                                             import/export relation functions in any                 Executive Order 13771 deregulatory                    various levels of government.
                                             other section of the RCRA hazardous                     action. This final rule provides burden
                                             waste regulations, State programs are                   reduction by providing a consistent                   G. Executive Order 13175: Consultation
                                             still required to adopt the provisions in               approach to addressing confidentiality                and Coordination With Indian Tribal
                                             this rule to maintain their equivalency                 claims with respect to the documents                  Governments
                                             with the Federal program (see 40 CFR                    within the scope of this rulemaking. As                  This action does not have tribal
                                             271.10(e)).                                             a result, this action will result in cost-            implications as specified in Executive
                                                This final rule contains amendments                  savings and greater efficiency for                    Order 13175. No exporters, importers or
                                             to 40 CFR 260.2 such that no claim of                   industry and EPA. EPA will no longer                  transporters affected by this action are
                                             business confidentiality may be asserted                expend resources to publish an annual                 known to be owned by Tribal
                                             by any person with respect to                           Federal Register notice related to                    governments or located within or
                                             information from cathode ray tube                       confidential business information and                 adjacent to Tribal lands. Thus,
                                             export documents prepared, used and                     industry will avoid the costs and burden              Executive Order 13175 does not apply
                                             submitted under §§ 261.39(a)(5) and                     associated with reading and responding                to this action.
                                             261.41(a) and hazardous waste export,                   to the annual Federal Register notice.
                                             import, and transit documents prepared,                                                                       H. Executive Order 13045: Protection of
                                             used and submitted under §§ 262.82,                     C. Paperwork Reduction Act (PRA)                      Children From Environmental Health
                                             262.83, 262.84, 263.20, 264.12, 264.71,                                                                       Risks and Safety Risks
                                                                                                       This action does not impose an
                                             265.12, 265.71, and 267.71.                             information collection burden under the                 This action is not subject to Executive
                                                The States that have previously                                                                            Order 13045 because it is not
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                                                                                                     PRA because it does not contain any
                                             adopted 40 CFR part 262, subparts E, F                  information collection activities.                    economically significant as defined in
                                             and H, 40 CFR part 263, 40 CFR part                                                                           Executive Order 12866, and because
                                             264, 40 CFR part 265, and any other                     D. Regulatory Flexibility Act (RFA)                   EPA does not believe the environmental
                                             import/export related regulations, and                     EPA certifies that this action will not            health or safety risks addressed by this
                                             that will be adopting the revisions in the              have a significant economic impact on                 action present a disproportionate risk to
                                             Hazardous Waste Export-Import                           a substantial number of small entities                children.


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                                             60900            Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations

                                             I. Executive Order 13211: Actions                         Dated: December 11, 2017.                           considered by EPA to be final
                                             Concerning Regulations That                             E. Scott Pruitt,                                      documents on March 1 of the calendar
                                             Significantly Affect Energy Supply,                     Administrator.                                        year after the related cathode ray tube
                                             Distribution, or Use                                                                                          exports or hazardous waste exports,
                                                                                                       For the reasons stated in the
                                                                                                                                                           imports, or transits occur.
                                               This action is not subject to Executive               preamble, EPA amends 40 CFR parts
                                             Order 13211 because it is not a                         260, 261, and 262 as follows:                         PART 261—IDENTIFICATION AND
                                             significant regulatory action under                                                                           LISTING OF HAZARDOUS WASTE
                                                                                                     PART 260—HAZARDOUS WASTE
                                             Executive Order 12866.                                  MANAGEMENT SYSTEM: GENERAL                            ■ 3. The authority citation for part 261
                                             J. National Technology Transfer and                                                                           continues to read as follows:
                                                                                                     ■ 1. The authority citation for part 260
                                             Advancement Act (NTTAA)                                 continues to read as follows:                           Authority: 42 U.S.C. 6905, 6912(a), 6921,
                                                                                                                                                           6922, 6924(y) and 6938.
                                               This rulemaking does not involve                        Authority: 42 U.S.C. 6905, 6912(a), 6921–
                                             technical standards.                                    6927, 6930, 6934, 6935, 6937, 6938, 6939,             ■ 4. Amend § 261.39 by revising
                                                                                                     and 6974.                                             paragraph (a)(5)(iv) to read as follows:
                                             K. Executive Order 12898: Federal
                                                                                                     ■ 2. Amend § 260.2 by revising                        § 261.39 Conditional Exclusion for Used,
                                             Actions To Address Environmental
                                                                                                     paragraph (b) and adding paragraph (d)                Broken Cathode Ray Tubes (CRTs) and
                                             Justice in Minority Populations and                     to read as follows:                                   Processed CRT Glass Undergoing
                                             Low-Income Populations                                                                                        Recycling.
                                                                                                     § 260.2 Availability of information;
                                                EPA believes that this action does not               confidentiality of information.
                                                                                                                                                           *      *      *     *    *
                                             have disproportionately high and                                                                                 (a) * * *
                                                                                                     *      *     *    *     *                                (5) * * *
                                             adverse human health or environmental                      (b) Except as provided under                          (iv) EPA will provide a complete
                                             effects on minority populations, low-                   paragraphs (c) and (d) of this section,               notification to the receiving country and
                                             income populations, and/or indigenous                   any person who submits information to                 any transit countries. A notification is
                                             peoples, as specified in Executive Order                EPA in accordance with parts 260                      complete when EPA receives a
                                             12898 (59 FR 7629, February 16, 1994),                  through 266 and 268 of this chapter may               notification which EPA determines
                                             because this action only applies a                      assert a claim of business confidentiality            satisfies the requirements of paragraph
                                             confidentiality determination such that                 covering part or all of that information              (a)(5)(i) of this section.
                                             no person can assert confidential                       by following the procedures set forth in              *      *      *     *    *
                                             business information (CBI) claims for                   § 2.203(b) of this chapter. Information
                                             documents related to the export, import,                covered by such a claim will be                       PART 262—STANDARDS APPLICABLE
                                             and transit of hazardous waste and                      disclosed by EPA only to the extent, and              TO GENERATORS OF HAZARDOUS
                                             export of excluded cathode ray tubes                    by means of the procedures, set forth in              WASTE
                                             (CRTs).                                                 part 2, subpart B, of this chapter.
                                                                                                     *      *     *    *     *                             ■ 5. The authority citation for part 262
                                             L. Congressional Review Act (CRA)                          (d)(1) After June 26, 2018, no claim of            continues to read as follows:
                                               This action is subject to the CRA, and                business confidentiality may be asserted                Authority: 42 U.S.C 6906, 6912, 6922–
                                             the EPA will submit a rule report to                    by any person with respect to                         6925, 6937, and 6938.
                                                                                                     information contained in cathode ray                  ■ 6. Amend § 262.83 by revising
                                             each House of the Congress and to the
                                                                                                     tube export documents prepared, used                  paragraphs (b)(5) and (f)(9) to read as
                                             Comptroller General of the United
                                                                                                     and submitted under §§ 261.39(a)(5) and               follows:
                                             States. This action is not a ‘‘major rule’’
                                                                                                     261.41(a) of this chapter, and with
                                             as defined by 5 U.S.C. 804(2).                          respect to information contained in                   § 262.83   Exports of hazardous waste.
                                             List of Subjects                                        hazardous waste export, import, and                   *      *     *     *     *
                                                                                                     transit documents prepared, used and                     (b) * * *
                                             40 CFR Part 260                                         submitted under §§ 262.82, 262.83,                       (5) For cases where the proposed
                                                                                                     262.84, 263.20, 264.12, 264.71, 265.12,               country of import and recovery or
                                               Environmental protection, Cathode                                                                           disposal operations are not covered
                                                                                                     265.71, and 267.71 of this chapter,
                                             ray tubes (CRTs), Confidential business                                                                       under an international agreement to
                                                                                                     whether submitted electronically into
                                             information, Exports, Hazardous waste,                                                                        which both the United States and the
                                                                                                     EPA’s Waste Import Export Tracking
                                             Imports, Reporting and recordkeeping                    System or in paper format.                            country of import are parties, EPA will
                                             requirements.                                              (2) EPA will make any cathode ray                  coordinate with the Department of State
                                             40 CFR Part 261                                         tube export documents prepared, used                  to provide the complete notification to
                                                                                                     and submitted under §§ 261.39(a)(5) and               country of import and any countries of
                                               Environmental protection, Cathode                     261.41(a) of this chapter, and any                    transit. In all other cases, EPA will
                                             ray tubes (CRTs), Confidential business                 hazardous waste export, import, and                   provide the notification directly to the
                                             information, Hazardous waste,                           transit documents prepared, used and                  country of import and any countries of
                                             Reporting and recordkeeping                             submitted under §§ 262.82, 262.83,                    transit. A notification is complete when
                                             requirements.                                           262.84, 263.20, 264.12, 264.71, 265.12,               EPA receives a notification which EPA
                                                                                                     265.71, and 267.71 of this chapter                    determines satisfies the requirements of
                                             40 CFR Part 262                                         available to the public under this                    paragraphs (b)(1)(i) through (xiii) of this
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                                                                                                     section when these electronic or paper                section.
                                               Environmental protection,
                                                                                                     documents are considered by EPA to be                 *      *     *     *     *
                                             Confidential business information,
                                                                                                     final documents. These submitted                         (f) * * *
                                             Exports, Hazardous waste, Imports,
                                                                                                     electronic and paper documents related                   (9) Upon request by EPA, U.S.
                                             Reporting and recordkeeping                             to hazardous waste exports, imports and               exporters, importers, or recovery
                                             requirements.                                           transits and cathode ray tube exports are             facilities must submit to EPA copies of


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                                                              Federal Register / Vol. 82, No. 246 / Tuesday, December 26, 2017 / Rules and Regulations                                        60901

                                             contracts, chain of contracts, or                       appropriate response actions under                    Substances Pollution Contingency Plan
                                             equivalent arrangements (when the                       CERCLA have been completed.                           (NCP), which EPA promulgated
                                             movement occurs between parties                         However, this deletion does not                       pursuant to section 105 of the
                                             controlled by the same corporate or                     preclude EPA from taking future actions               Comprehensive Environmental
                                             legal entity).                                          at the Site under Superfund.                          Response, Compensation and Liability
                                             *     *     *    *     *                                DATES: This direct final deletion is                  Act (CERCLA) of 1980, as amended.
                                                                                                     effective February 26, 2018 unless EPA                EPA maintains the NPL as the list of
                                             ■ 7. Amend § 262.84 by revising                                                                               sites that appear to present a significant
                                             paragraphs (b)(4) and (f)(8) to read as                 receives adverse comments by January
                                                                                                     25, 2018. If adverse comments are                     risk to public health, welfare, or the
                                             follows:                                                                                                      environment. Sites on the NPL may be
                                                                                                     received, EPA will publish a timely
                                             § 262.84   Imports of hazardous waste.                  withdrawal of the direct final deletion               the subject of remedial actions financed
                                             *     *     *     *     *                               in the Federal Register informing the                 by the Hazardous Substance Superfund
                                               (b) * * *                                             public that the deletion will not take                (Fund). As described in § 300.425(e)(3)
                                               (4) A notification is complete when                   effect.                                               of the NCP, sites deleted from the NPL
                                             EPA determines the notification satisfies                                                                     remain eligible for Fund-financed
                                                                                                     ADDRESSES:   Submit your comments,
                                             the requirements of paragraphs (b)(1)(i)                                                                      remedial actions if future conditions
                                                                                                     identified by Docket ID No. EPA–HQ–
                                             through (xiii) of this section.                                                                               warrant such actions.
                                                                                                     SFUND–1987–0002 at http://                               Section II of this document explains
                                             *     *     *     *     *                               www.regulations.gov. Follow the online                the criteria for deleting sites from the
                                               (f) * * *                                             instructions for submitting comments.                 NPL. Section III discusses procedures
                                               (8) Upon request by EPA, importers or                 Once submitted, comments cannot be                    that EPA is using for this action. Section
                                             disposal or recovery facilities must                    edited or removed from Regulations.gov.               IV discusses the Site and demonstrates
                                             submit to EPA copies of contracts, chain                The EPA may publish any comment                       how it meets the deletion criteria.
                                             of contracts, or equivalent arrangements                received to its public docket. Do not                 Section V discusses EPA’s action to
                                             (when the movement occurs between                       submit electronically any information                 delete the Site from the NPL unless
                                             parties controlled by the same corporate                you consider to be Confidential                       adverse comments are received during
                                             or legal entity).                                       Business Information (CBI) or other                   the public comment period.
                                             *     *     *     *     *                               information whose disclosure is
                                             [FR Doc. 2017–27525 Filed 12–22–17; 8:45 am]            restricted by statute. Multimedia                     II. NPL Deletion Criteria
                                             BILLING CODE 6560–50–P                                  submissions (audio, video, etc.) must be                 The NCP establishes the criteria that
                                                                                                     accompanied by a written comment.                     EPA uses to delete sites from the NPL.
                                                                                                     The written comment is considered the                 In accordance with 40 CFR 300.425(e),
                                             ENVIRONMENTAL PROTECTION                                official comment and should include                   sites may be deleted from the NPL
                                             AGENCY                                                  discussion of all points you wish to                  where no further response is
                                                                                                     make. The EPA will generally not                      appropriate. In making such a
                                             40 CFR Part 300                                         consider comments or comment                          determination pursuant to 40 CFR
                                                                                                     contents located outside of the primary               300.425(e), EPA will consider, in
                                             [EPA–HQ–SFUND–1987–0002; FRL–9972–
                                             38–Region 3]                                            submission (i.e., on the web, cloud, or               consultation with the state, whether any
                                                                                                     other file sharing system). For                       of the following criteria have been met:
                                             National Oil and Hazardous                              additional submission methods, the full                  i. Responsible parties or other persons
                                             Substances Pollution Contingency                        EPA public comment policy,                            have implemented all appropriate
                                             Plan; National Priorities List: Deletion                information about CBI or multimedia                   response actions required;
                                             of the C&D Recycling Superfund Site                     submissions, and general guidance on                     ii. All appropriate Fund-financed
                                                                                                     making effective comments, please visit               response under CERCLA has been
                                             AGENCY: Environmental Protection                        http://www2.epa.gov/dockets/                          implemented, and no further response
                                             Agency.                                                 commenting-epa-dockets.                               action by responsible parties is
                                             ACTION: Direct final rule.                              FOR FURTHER INFORMATION CONTACT:                      appropriate; or
                                                                                                     Gregory Voigt, Remedial Project                          iii. The remedial investigation has
                                             SUMMARY:   The Environmental Protection                                                                       shown that the release poses no
                                                                                                     Manager, U.S. Environmental Protection
                                             Agency (EPA) Region III is publishing a                                                                       significant threat to public health or the
                                                                                                     Agency, Region III, Mail Code 3HS21,
                                             direct final Notice of Deletion of the                                                                        environment and, therefore, the taking
                                                                                                     1650 Arch Street, Philadelphia, PA
                                             C&D Recycling Superfund Site (Site),                                                                          of remedial measures is not appropriate.
                                                                                                     19013, (215) 814–5737, email:
                                             located in Foster Township,                                                                                      EPA may initiate further action to
                                                                                                     voigt.gregory@epa.gov.
                                             Pennsylvania, from the National                                                                               ensure continued protectiveness at a
                                             Priorities List (NPL). The NPL,                         SUPPLEMENTARY INFORMATION:
                                                                                                                                                           deleted site if new information becomes
                                             promulgated pursuant to section 105 of                  Table of Contents                                     available that indicates it is appropriate.
                                             the Comprehensive Environmental                                                                               Whenever there is a significant release
                                                                                                     I. Introduction
                                             Response, Compensation, and Liability                   II. NPL Deletion Criteria                             from a site deleted from the NPL, the
                                             Act (CERCLA) of 1980, as amended, is                    III. Deletion Procedures                              deleted site may be restored to the NPL
                                             an appendix of the National Oil and                     IV. Basis for Site Deletion                           without application of the hazard
                                             Hazardous Substances Pollution                          V. Deletion Action                                    ranking system.
                                             Contingency Plan (NCP). This direct
                                             final deletion is being published by EPA                I. Introduction                                       III. Deletion Procedures
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                                             with the concurrence of the                               EPA Region III is publishing this                      The following procedures apply to
                                             Commonwealth of Pennsylvania                            direct final Notice of Deletion of the                deletion of the Site:
                                             (Commonwealth), through the                             C&D Recycling Superfund Site, from the                   (1) EPA consulted with the
                                             Pennsylvania Department of                              National Priorities List (NPL). The NPL               Commonwealth prior to developing this
                                             Environmental Protection (PADEP),                       constitutes Appendix B of 40 CFR part                 direct final Notice of Deletion and the
                                             because EPA has determined that all                     300, which is the Oil and Hazardous                   Notice of Intent to Delete co-published


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Document Created: 2017-12-23 03:07:22
Document Modified: 2017-12-23 03:07:22
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThe final rule is effective on June 26, 2018.
ContactLia Yohannes, Office of Resource Conservation and Recovery; telephone number: (703) 308-8413; email: [email protected]
FR Citation82 FR 60894 
RIN Number2050-AG90
CFR Citation40 CFR 260
40 CFR 261
40 CFR 262
CFR AssociatedEnvironmental Protection; Cathode Ray Tubes (crts); Confidential Business Information; Exports; Hazardous Waste; Imports and Reporting and Recordkeeping Requirements

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