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

ENVIRONMENTAL PROTECTION AGENCY

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

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, 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