Internet Posting of and Confidentiality Determinations for Hazardous Waste Export and Import Documents, 85459-85471 [2016-27431]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Proposed Rules]
[Pages 85459-85471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27431]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260, 262, 264, 265 and 267

[EPA-HQ-OLEM-2016-0492; FRL-9954-26-OLEM]
RIN 2050-AG90


Internet Posting of and Confidentiality Determinations for 
Hazardous Waste Export and Import Documents

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is amending existing 
regulations regarding the export and import of hazardous wastes from 
and into the United States. EPA is making these changes to improve 
protection of public health with respect to hazardous wastes by 
ensuring public accessibility and transparency of export and import 
documentation. Specifically, the proposed revisions of the existing 
regulations will require exporters of hazardous waste and receiving 
facilities recycling or disposing hazardous waste from foreign sources 
to maintain a single publicly accessible Web site (``Export/Import Web 
site'') to which documents can be posted regarding the confirmation of 
receipt and confirmation of completed recovery or disposal of 
individual hazardous waste import and export shipments. These proposed 
changes will improve information on the movement and disposition of 
hazardous wastes, and will enable interested members of the community 
and the government to

[[Page 85460]]

benefit from the provision of publicly accessible data to better 
monitor proper compliance with EPA's hazardous waste regulations and 
help ensure that hazardous waste import and export shipments are 
properly received and managed. The proposed internet posting 
requirements are planned for the interim period prior to the electronic 
import-export reporting compliance date when electronic submittal to 
EPA of confirmations of receipt and completed recovery or disposal for 
hazardous waste shipments will be required. EPA also proposes a 
confidentiality determination to exclude documents related to the 
export, import, and transit of hazardous waste and export of excluded 
CRTs from confidential business information (CBI) claims.

DATES: Comments must be received on or before January 27, 2017. Under 
the Paperwork Reduction Act (PRA), comments on the information 
collection provisions are best assured of consideration if the Office 
of Management and Budget (OMB) receives a copy of your comments on or 
before December 28, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OLEM-2016-0492 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or withdrawn. EPA may publish any comment received to its 
public docket. Do not submit electronically any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e. on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Laura Coughlan, Materials Recovery and 
Waste Management Division, Office of Resource Conservation and Recovery 
(5304P), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460; telephone number: (703) 308-0005; email: 
coughlan.laura@epa.gov.

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. General Information
    A. List of acronyms used in this action
    B. What are the statutory authorities for this proposed rule?
    C. Does this action apply to me?
    D. What is the purpose of this proposed rule?
    E. Brief description of this proposal
    1. Internet Posting of Confirmations of Receipt and 
Confirmations of Recovery or Disposal
    2. CBI Claims for Hazardous Waste Export and Import Documents
    3. Release of Aggregate Data and Competitive Harm Concerns
II. Background
    A. RCRA General Hazardous Waste Export and Import Requirements
    B. EPA's Transition to Electronic Submittal of Export and Import 
Documents
    1. Why is EPA proposing to require that importers and exporters 
maintain a Web site to post hazardous waste export and import 
documents?
    2. What are the confirmations of receipt and confirmations of 
recovery or disposal and how will internet posting of these 
documents help improve tracking and monitoring of individual 
hazardous waste shipments?
    3. What accommodations will EPA make to allow original 
submitters of information and affected facilities to protect 
potential confidential business information (CBI) contained in the 
documents posted to the Export/Import Web site?
    4. What recordkeeping requirements apply to confirmations of 
receipt and confirmations of recovery or disposal with this proposed 
rule?
III. Summary of This Proposed Rule
    A. Changes to 40 CFR 260.2
    B. Changes to 40 CFR 262.83 and 262.84
    C. Changes to 40 CFR 264.74
    D. Changes to 40 CFR 265.74
    E. Changes to 40 CFR 267.71
IV. Costs and Benefits of the Proposed Rule
    A. Introduction
    B. Analytical Scope
    C. Cost Impacts
    D. Benefits
V. State Authorization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review 
and Executive Order 13563: Improving Regulation and Regulatory 
Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. General Information

A. List of Acronyms Used in This Action

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              Acronym                              Meaning
------------------------------------------------------------------------
AES...............................  Automated Export System
AOC...............................  Acknowledgment of Consent (issued by
                                     EPA)
CBI...............................  Confidential Business Information
CEC...............................  Commission for Environmental
                                     Cooperation
CFR...............................  Code of Federal Regulations
CRT...............................  Cathode Ray Tube
EPA...............................  United States Environmental
                                     Protection Agency
FR................................  Federal Register
HSWA..............................  Hazardous and Solid Waste Amendments
NAFTA.............................  North American Free Trade Agreement
OECD..............................  Organization for Economic
                                     Cooperation and Development
OIG...............................  EPA's Office of Inspector General
OMB...............................  Office of Management and Budget
RCRA..............................  Resource Conservation and Recovery
                                     Act
SIC...............................  Standard Industrial Classification
SLAB..............................  Spent Lead-Acid Battery
WIETS.............................  EPA's Waste Import Export Tracking
                                     System
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[[Page 85461]]

B. What are the statutory authorities for this proposed rule?

    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., 6905, 6912, 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939, and 
6974.

C. Does this action apply to me?

    The internet posting requirements in this action generally affect 
two (2) groups: (1) All persons who export (or arrange for the export) 
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; and (2) all recycling and disposal facilities 
who receive imports of such hazardous wastes for recycling or disposal. 
The application of these confidentiality determinations to certain 
export, import, and transit documents affects the groups described 
previously in addition to exporters of cathode ray tubes (CRTs). 
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 proposed rule to a particular 
entity, consult the person listed in the FOR FURTHER INFORMATION 
CONTACT section.

D. What is the purpose of this proposed rule?

    This rule proposes two types of amendments. First, EPA is proposing 
certain amendments to the current RCRA regulations in part 262 
governing exports and imports of hazardous waste in order to improve 
protection of public health and the environment by strengthening the 
public accessibility and transparency of documentation to better 
monitor proper compliance with EPA's hazardous waste regulations and 
help ensure that hazardous waste shipments are properly received and 
disposed. To achieve these goals, EPA is proposing to require internet 
posting of confirmation of receipt and confirmation of recovery or 
disposal documents (i.e., two documents per import shipment and two 
documents per export shipment) where they are required for individual 
export and import shipments of hazardous wastes, prior to the 
electronic import-export reporting compliance date EPA will establish 
in a separate Federal Register notice. The proposed rule is a companion 
to EPA's Hazardous Waste Export-Import Revisions Final Rule also 
published in the ``Rules and Regulations'' section of this Federal 
Register, which is one of the Agency's priority actions under its plan 
for periodic retrospective reviews of existing regulations, as called 
for by Executive Order 13563. The proposed internet posting 
requirements are 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.
    Second, EPA is also proposing confidentiality determinations with 
respect to CBI claims for the individual documents and compiled data 
for the following types of export and import documents, which will 
hereinafter be referred to as aforementioned ``documents related to the 
export, import, and transit of hazardous waste and export of excluded 
cathode ray tubes (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

[[Page 85462]]

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 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)(3) and 265.12(a)(3); and
    (8) Documents related to the export and import of RCRA universal 
waste under 40 CFR part 273, subparts B, C, D, and F.
    We propose to apply confidentiality determinations such that no CBI 
claims may be asserted by any person with respect to any of the 
aforementioned documents related to the export, import, and transit of 
hazardous waste and export of excluded CRTs. EPA's determination that 
revisions to the export/import regulations are needed is bolstered by 
the concerns and recommendations in both the 2013 Commission for 
Environmental Cooperation (CEC) report on export and recycling of spent 
lead-acid batteries (SLABs) within North America (``Hazardous Trade? An 
Examination of US-generated Spent Lead-acid Battery Exports and 
Secondary Lead Recycling in Mexico, the United States and Canada'') and 
the 2015 EPA Office of Inspector General (OIG) report on hazardous 
waste imports (``EPA Does Not Effectively Control or Monitor Imports of 
Hazardous Waste''). Based on its findings, the CEC report recommended 
that the U.S. require the use of manifests for each international 
shipment of SLABs, require exporters to obtain a confirmation of 
recovery from foreign recycling facilities, explore establishing an 
electronic export annual report, and better share export and import 
data between environmental and border agencies. For a more complete 
discussion of the CEC report and EPA's related analysis, see Section 
VII of the Hazardous Waste Export-Import Revisions proposed rule (80 FR 
63304). The 2015 EPA OIG report recommended that EPA improve the 
oversight of hazardous waste imports, including tracking of all 
hazardous waste import shipments. Copies of the CEC and EPA OIG reports 
can be found in the Docket for the Hazardous Waste Export-Import 
Revisions proposed rule (Docket ID No. EPA-HQ-RCRA-2015-0147, documents 
EPA-HQ-RCRA-2015-0147-0009 and EPA-HQ-RCRA-2015-0147-0011, 
respectively), and copies have been placed in the docket for this 
proposed rule.
    EPA is particularly interested in input on this proposed action 
from persons who export hazardous waste or CRTs and those persons who 
receive imported hazardous waste, including those persons receiving 
imported or exporting hazardous wastes managed under the special 
management standards in 40 CFR part 266 (e.g., spent lead acid 
batteries) and 40 CFR part 273 (e.g., universal waste batteries, 
universal waste mercury lamps).

E. Brief Description of This Proposal

1. Internet Posting of Confirmations of Receipt and Confirmations of 
Recovery or Disposal
    EPA is proposing to modify the reporting and recordkeeping 
requirements for exporters of hazardous waste and receiving facilities 
of hazardous waste imports such that, prior to the electronic import-
export reporting compliance date to be established in a future, 
separate Federal Register notice, they are required to maintain a 
single publicly accessible Web site (herein referred to as the 
``Export/Import Web site'') where the following documents will be 
posted: Export confirmations of receipt; export confirmations of 
recovery or disposal; import confirmations of receipt; and import 
confirmations of recovery or disposal. EPA is requesting comment on the 
time period during which exporters and receiving facilities should be 
required to post these documents to their Web site and whether such 
information should continue to be publicly available after the interim 
period, once EPA receives submittals of such documents electronically.
    EPA is proposing that the required documents be posted as read-
only, publicly accessible, downloadable images. Examples of acceptable 
document formats include, but are not limited to, Portable Document 
Format (PDF), Joint Photographic Experts Group (JPEG), and Graphics 
Interchange Format (GIF). If a publicly available Web site is not 
available, exporters and receiving facilities must develop a publicly 
accessible Web site to post the required documents. If a company has 
more than one physical site from which it exports hazardous waste or 
receives hazardous waste imports for recycling or disposal, the company 
must clearly group the posted documents by individual physical facility 
site. In addition, the documents for each physical site must be clearly 
organized by the consent number relevant to each export or import 
shipment. The company's Web site must be titled ``Hazardous Waste 
Export/Import Rule Compliance Documents.'' The documents and their 
respective file names posted to the Export/Import Web site must clearly 
identify the type of document, EPA ID number of the exporting or 
receiving facility, the consent number associated with the shipment, 
and the related shipment number (e.g., Shipment No. 1 out of an 
expected 200 shipments for the consent number). We suggest the 
following standard nomenclature for file names:
     Exporter confirmation of receipt: EX_Conf_Receipt_[EPA ID 
No.]_[Consent No.]_[Shipment No.]
     Exporter confirmation of recovery or disposal: 
EX_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]
     Receiving facility confirmation of receipt: 
RF_Conf_Receipt_[EPA ID No.]_[Consent No.]_[Shipment No.]
     Receiving facility confirmation of recovery or disposal: 
RF_Conf_Recovery_[EPA ID No.]_[Consent No.]_[Shipment No.]
    EPA requests comment on the recommended organizational aspects of 
the Web site, and the proposed standard file name format, including 
whether the proposed standard file name format should be mandatory.
    EPA is proposing that the documents posted to the Export/Import Web 
site must be publicly accessible on the Web site by the first of March 
of each year

[[Page 85463]]

and 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 must be available 
for a period of at least three years following the date on which each 
document was first required to be posted to the Web site. Furthermore, 
in accordance with current recordkeeping requirements, paper copies of 
export and import confirmations of receipt and confirmations of 
recovery or disposal must be retained by exporters and receiving 
facilities for a period of at least three (3) years.
2. CBI Claims for Hazardous Waste Export and Import Documents
    EPA is also proposing confidentiality determinations and will no 
longer accept future CBI claims for the individual aforementioned 
documents related to the export, import, and transit of hazardous waste 
and export of excluded CRTs. Our rationale is explained in the 
following paragraphs.
    To date, our records indicate that EPA has received three 
assertions of confidentiality, one from Horizon Environment, Inc. in 
2004 and two from Johnson Controls Battery Group, Inc. in 2011 and 2012 
for certain information contained in hazardous waste export documents. 
In all three cases, the Agency determined that the information claimed 
as confidential was not entitled to confidential treatment, as 
explained in the following paragraphs.
    Horizon Environment, Inc. and Johnson Controls Battery Group, Inc. 
asserted claims of confidentiality for certain hazardous waste export 
documents that were responsive to a request to EPA under the Freedom of 
Information Act (FOIA). Horizon's claims related to export notices, and 
Johnson Controls' claims related to annual reports.
    Exemption 4 of the Freedom of Information Act (FOIA) exempts from 
disclosure ``trade secrets and commercial information obtained from a 
person and privileged or confidential'' (see 5 U.S.C. Sec.  552(b)(4)). 
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)).
Trade Secret
    The two companies' confidentiality claims did not assert that the 
information was a trade secret, nor did they provide information about 
how the Agency's release of this information would identify a plan, 
formula, process, or device. The companies also did not demonstrate how 
disclosure of the information would identify or reveal a trade secret. 
Consequently, EPA found that the information did not constitute a trade 
secret.
Confidential Business Information (CBI)
    In order to qualify as CBI under Exemption 4, the information must 
be ``privileged or confidential.'' 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 (D.C. 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.
    In terms of competitive harm, 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 
claimed as confidential was not a trade secret or CBI and, therefore, 
was not within the scope of Exemption 4 of the FOIA. Based on EPA's 
analysis and decision in the confidentiality claims asserted by these 
two companies for their hazardous waste export notices and annual 
reports, EPA expects to apply a similar analysis and reach a similar 
decision with respect to these types of documents as well as the other 
aforementioned documents related to the export, import, and transit of 
hazardous waste and export of excluded CRTs that would be submitted to 
EPA by other companies. Therefore, EPA proposes to make a 
confidentiality determination in this rule that all of the 
aforementioned documents are not confidential.
    In addition, EPA has issued an annual Federal Register publication 
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 and data compiled from such 
documents submitted by original submitters 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, prior to EPA considering such documents releasable upon 
public request. The annual Federal Register publications 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. To date, EPA has never received a 
comment from any business not an original submitter as a result of the 
annual Federal Register publication.
    As discussed previously, EPA's regulations at 40 CFR 2.208 state 
that, in order for business information to be entitled to confidential 
treatment, the Agency must have determined that such claims meet 
several criteria.
    EPA believes that the aforementioned documents related to the 
export, import, and transit of hazardous waste and export of excluded 
CRTs do not meet several of the criteria listed in 40 CFR 2.208. Our 
rationale is explained in the following paragraphs.
    EPA believes that any CBI claim that might be asserted with respect 
to the individual selected hazardous waste documents 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 
selected hazardous waste documents submitted to the Agency are also 
shared with several commercial entities while they are being processed 
and used. As

[[Page 85464]]

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 
such export, import and transit documents. For example, a business 
wanting to protect commercial information contained in individual 
hazardous waste export and import documents would need to enter into 
and enforce non-disclosure agreements or similar legal mechanisms with 
all its customers and other third parties and affected interests who 
might also be named as waste handlers on the documents or who otherwise 
might be expected to come into contact with its documents.
    Furthermore, 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). As described previously, the selected hazardous waste 
documents are shared with several commercial entities throughout the 
chain of custody of a hazardous waste shipment. Therefore, information 
contained in these documents is relatively 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 the aforementioned documents related to the 
export, import, and transit of hazardous waste and export of excluded 
CRTs would be difficult to sustain under the substantive CBI criteria 
(40 CFR part 2, subpart B).
    Finally, EPA has established precedent in applying confidentiality 
determinations to RCRA hazardous waste documents. On February 7, 2014, 
EPA published the Hazardous Waste Management System; Modification of 
the Hazardous Waste Manifest System; Electronic Manifests final rule 
which made a categorical determination for individual RCRA hazardous 
waste manifest records. In EPA's Notice of Data Availability and 
Request for Comment on the Agency's Hazardous Waste Management System; 
Modification of the Hazardous Waste Manifest System (73 FR 10204) 
published on February 26, 2008, EPA concluded that information 
contained in individual manifested records is 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. Because the information 
contained in RCRA manifests is largely similar to the information 
contained in individual hazardous waste export and import documents, 
such as the name, address, and other information about the generator, 
transporter, and destination or receiving facility, EPA believes that 
the decision to apply categorical determinations for electronic 
manifests further supports the proposed confidentiality determination 
in this action for the aforementioned documents related to the export, 
import, and transit of hazardous waste and export of excluded cathode 
ray tubes (CRTs) and related aggregate information.
    Based on our analysis of the CBI criteria in 40 CFR part 2, subpart 
B, the absence of successful confidentiality claims by the original 
submitters of information and the lack of assertions of confidentiality 
submitted by affected businesses other than original submitters in 
response to the annual Federal Register publication, EPA believes that 
our proposed confidentiality determination to exclude from CBI claims 
and release on an annual basis the aforementioned documents is 
reasonable.
    EPA requests comment on our proposed confidentiality determination 
to prospectively exclude the aforementioned documents related to the 
export, import, and transit of hazardous waste and export of excluded 
CRTs from eligibility for CBI claims. In addition, the Agency believes 
that these documents do not qualify for the FOIA exemption for personal 
privacy, and thus the names of company employees or independent 
contractors that appear in these documents would not be exempt from 
public release. These documents do not qualify for the personal privacy 
exemption because the aforementioned documents submitted to the Agency 
are also shared with several commercial entities while they are being 
processed and used. As such, such persons whose names appear in these 
documents have no expectation of privacy. EPA requests public comment 
on this position.
    EPA proposes not to make publicly accessible the aforementioned 
documents related to the export, import, and transit of hazardous waste 
and export of excluded CRTs during the previous calendar year until 
March 1 of the succeeding year, except as required by applicable 
federal law, because EPA considers that these documents are still not 
in final form. Access would be limited while the data are being 
collected and verified, as data are processed, and exceptions or 
discrepancies are being resolved. This decision would not impact any 
CBI claims or any determinations made in the past by EPA in resolving 
CBI claims related to the export, import, and transit of hazardous 
waste and export of excluded CRTs.
    EPA requests comment on our proposed confidentiality determination 
that the aforementioned documents related to the export, import, and 
transit of hazardous waste and export of excluded CRTs, and data 
compiled from such documents, would be excluded from CBI claims and 
made releasable on an annual basis, except as required by applicable 
federal law. EPA also requests comment on whether requiring that 
internet posting of confirmations of receipt and confirmations of 
recovery or disposal by March 1 of each year is an appropriate 
timeframe for the documents to be considered in final form.
3. Release of Aggregate Data and Competitive Harm Concerns
    EPA understands that the waste management industry may be concerned 
that the aggregation of the data contained in the aforementioned 
documents related to the export, import, and transit of hazardous waste 
and export of excluded CRTs may enable competitors to obtain more 
immediate and efficient access to customer information, thus 
potentially creating competitive consequences not previously 
experienced under the current paper system. Exemption 4 of the Freedom 
of Information Act (FOIA) exempts from disclosure ``trade secrets and 
commercial or financial information obtained from a person and 
privileged or confidential'' (5 U.S.C. 552(b)(4)). 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'')). Since the individual aforementioned documents 
related to the export, import, and transit of hazardous waste and 
export of excluded CRTs would not be eligible for CBI treatment for the 
reasons discussed previously, it is a novel issue for EPA whether 
requests under FOIA for data aggregated from multiple selected records 
would require special handling by EPA under the FOIA exemption for 
confidential business information.

[[Page 85465]]

    Therefore, EPA is seeking public comment on how, if at all, EPA 
should address any future FOIA requests for aggregate data from the 
aforementioned documents related to the export, import, and transit of 
hazardous waste and export of excluded CRTs. First, EPA needs 
information on how substantial the harm would be to a company's 
competitive position if aggregate data from multiple manifests could be 
obtained from EPA under a FOIA request. How would this situation differ 
quantifiably from the current situation where a FOIA request can be 
made for several of the aforementioned documents related to the export, 
import, and transit of hazardous waste and export of excluded CRTs and 
the requester must then aggregate the relevant data in each of these 
manifests for himself or herself?
    Given our uncertainty about the adverse effects or competitive harm 
to waste management businesses that would submit hazardous waste export 
and import documents to EPA, we seek comment on whether the release of 
aggregated data would adversely impact waste management businesses. In 
particular, we ask that the waste management industry substantiate 
their concerns, if any, that the aggregation of manifest data and the 
subsequent disclosure of that data would somehow release their 
company's confidential business information and thus cause substantial 
competitive harm to them.
    If EPA were to determine that the waste management industry 
concerns for the disclosure of aggregate information are legitimate and 
that they are not sufficiently addressed by the approach described 
previously in this proposal, then we could develop another approach to 
mitigate the ability to efficiently create customer lists from 
aggregated data. We therefore request comment on how EPA should design 
and implement an approach to protect the disclosure of aggregate data 
of competitive value, if such an approach were appropriate. For 
example, what are the indicators of aggregated requests (e.g., requests 
of 50 or more import, export or transit documents involving a single 
exporter or importer) that would justify our handling aggregated data 
differently from individual manifests for FOIA disclosure purposes? 
What information should be redacted from the data that are released to 
mitigate any competitive harm from the data disclosure?
    If, however, EPA were to determine that the release of aggregate 
information would not be entitled to confidentiality, EPA would make 
publicly available such aggregate information in addition to individual 
documents discussed previously.
    The proposed internet posting requirements do not affect the 
current recordkeeping requirements for retaining paper copies of the 
export confirmations of receipt, export confirmations of completing 
recovery or disposal, import confirmations of receipt, and import 
confirmations of completing recovery or disposal. These paper documents 
must be retained by exporters and receiving facilities for a period of 
at least three (3) years.

II. Background

A. RCRA General Hazardous Waste Export and Import Requirements

    EPA's hazardous waste export and import regulations were originally 
promulgated in 1986, and have been revised multiple times. For more 
information about these requirements and revisions that are being 
published in this issue of the Federal Register, see ``Hazardous Waste 
Export-Import Revisions Final Rule'' found in the ``Rules and 
Regulations'' section of this Federal Register.

B. EPA's Transition to Electronic Submittal of Export and Import 
Documents

    Under the newly revised requirements in 40 CFR parts 262, 264 and 
265, as amended in EPA's Hazardous Waste Export-Import Revisions Final 
Rule (found in the ``Rules and Regulations'' section of this Federal 
Register), export notices for hazardous waste (40 CFR 262.83(b)) and 
export notices for CRTs being shipped for recycling (40 CFR 
261.39(a)(5)(ii)) are required to be submitted electronically to EPA 
using EPA's Waste Import Export Tracking System (WIETS) starting on 
December 31, 2016. Export annual reports for hazardous waste (40 CFR 
262.83(g)) and export annual reports for CRTs being shipped for 
recycling (40 CFR 261.39(a)(5)(xi)) are required to be submitted by 
paper method prior to one year after a future Automated Export System 
(AES) filing compliance date to be announced in a future, separate 
Federal Register notice, and then submitted electronically into EPA's 
WIETS system thereafter. The following documents related to hazardous 
waste exports and imports are required to be submitted to EPA by paper 
method prior to a future electronic import-export reporting compliance 
date to be established in a future, second separate Federal Register 
notice, and then submitted electronically into EPA's WIETS system 
thereafter:
     Import notices for hazardous waste in cases where country 
of export does not control as hazardous waste export and EPA has not 
received notice from country of export (40 CFR 262.84(b));
     Export exception reports for hazardous waste (40 CFR 
262.83(h), in lieu of exception reporting required under 40 CFR 
262.42);
     Receiving facility notifications of the need to arrange 
alternate management or the return of an import shipment of hazardous 
waste (262.84(f)(6), 264.12(a)(4)(ii), 265.12(a)(4)(ii)).
    As of the electronic import-export reporting compliance date, per 
the newly revised requirements in 40 CFR parts 262, 264 and 265, as 
amended in EPA's Hazardous Waste Export-Import Revisions Final Rule 
(found in the ``Rules and Regulations'' section of this Federal 
Register), the following additional confirmation documents must be 
submitted electronically to EPA regarding hazardous waste import and 
export shipments:
    (a) Export confirmations of receipt using movement document 
(submittal by foreign recovery facility required per contract 
requirements, 40 CFR 262.83(d)(xv) and 262.83(f)(4));
    (b) Export confirmations of completing recovery or disposal 
(submittal by foreign recovery facility required per contract 
requirements, 40 CFR 262.83(f)(5));
    (c) Import confirmations of receipt using movement document (40 CFR 
262.84(d)(xv), 264.12(a)(2), 264.71(d), 265.12(a)(2), 265.71(d));
    (d) Import confirmations of completing recovery or disposal (40 CFR 
262.84(g), 264.12(a)(4)(i), 265.12(a)(4)(i)).
    To facilitate accessibility and transparency of documentation 
concerning import and export shipments of hazardous waste that are 
received and completely recovered or disposed of during the period 
prior to the electronic import-export reporting compliance date, EPA is 
proposing that exporters and receiving facilities of hazardous waste 
maintain a publicly accessible Web site (``Export/Import Web site'') to 
which the four confirmation documents listed previously in (a), (b), 
(c), and (d) would be posted. EPA believes that easier access to this 
information will allow EPA and the public to better monitor exporters' 
and importers' compliance with EPA's hazardous waste regulations and 
help verify that hazardous waste shipments are properly received and 
disposed.
    EPA believes the internet is currently the most convenient and 
widely

[[Page 85466]]

accessible means for gathering information while the Agency develops 
electronic submittal capabilities for WIETS. After the electronic 
import-export reporting compliance date, when EPA's WIETS is ready to 
receive these export and import confirmations electronically, exporters 
and receiving facilities will no longer be required to post these 
confirmations on their respective company's Web site, as the 
regulations would then require electronic submittal of the export and 
import shipment confirmations to EPA using WIETS.
1. Why is EPA proposing to require that importers and exporters 
maintain a Web site to post hazardous waste export and import 
documents?
    EPA's proposal requires exporters and receiving facilities of 
hazardous waste to maintain a Web site to which information can be 
posted regarding the confirmation of receipt and confirmation of 
completed recovery or disposal of individual hazardous waste export and 
import shipments. The Web site is an appropriate means for ensuring 
public access to the required information while the Agency develops the 
electronic submittal capabilities of WIETS. EPA intends for such 
postings to the exporter or receiving facility's Web site to be a 
temporary requirement to be superseded on the electronic import-export 
reporting compliance date when they will be required to electronically 
submit the confirmations to WIETS.
2. What are the confirmations of receipt and confirmations of recovery 
or disposal and how will internet posting of these documents help 
improve tracking and monitoring of individual hazardous waste 
shipments?
    The confirmation of receipt is a copy of the signed and dated 
international movement document that must accompany a consented 
hazardous waste shipment from the starting site in the country of 
export to the destination site in the country of import. To confirm 
receipt of the shipment, U.S. exporters must ensure that copies of the 
signed movement document (i.e., confirmation of receipt) be sent by the 
foreign destination facility to the exporter and to the countries of 
export (as of the electronic import-export reporting compliance date), 
import, and transit that respectively control the shipment as an 
export, import or transit of hazardous waste. Similarly, U.S. receiving 
facilities that receive imports of hazardous waste must send copies of 
the confirmation of receipt to the foreign exporter and to the 
countries of export, import (as of the electronic import-export 
reporting compliance date) and transit. The confirmation of receipt 
reduces the risk of a shipment being misdirected to a country or 
facility not approved to receive the shipments for disposal or 
recovery. The confirmation of receipt also highlights any incident 
where the shipment is interrupted or misdirected, as the exporter and 
competent authorities will not receive the confirmation from the 
approved destination facility within expected timeframes. Lastly, the 
confirmation of receipt provides documentation for both the exporter 
and the countries of import and export that the shipment in fact went 
to the approved recycling or disposal facility.
    The confirmation of recovery or disposal documents the completion 
of final management (i.e., treatment and disposal, recovery) of each 
hazardous waste export or importshipment. Once received at the approved 
facility, management (i.e., treatment and disposal, recovery) of each 
shipment is required to be completed within one year of shipment 
delivery. For export shipments the U.S. exporter must ensure that the 
foreign destination facility send confirmation of completing such 
management back to the exporter and to the countries of export (as of 
the electronic import-export reporting compliance date), import, and 
transit that respectively control the shipment as an export or transit 
of hazardous waste. Similarly for import shipments, a U.S. recycling or 
disposal facility receiving an import of hazardous waste must send such 
confirmation back to the exporter and to the countries of export, 
import (as of the electronic import-export reporting compliance date) 
and transit. Requiring destination facilities to send such confirmation 
to the exporter and to the competent authorities of the countries of 
export and import of the shipment, helps minimize the risk of 
speculative accumulation or abandonment of the waste shipments, and 
decreases the potential for associated damage to human health and the 
environment.
    As described previously, the confirmation of receipt and 
confirmation of recovery or disposal are important requirements that 
document the receipt and final disposition of individual hazardous 
waste export and import shipments. With regards to exports, the 
confirmations are the only records documenting that hazardous waste 
shipments are properly received and managed in the foreign country 
importing the waste. EPA believes that public access to these documents 
on the Web sites of exporters and receiving facilities of hazardous 
waste from foreign sources facilitates the tracking and monitoring 
compliance of hazardous waste shipments in accordance with EPA's 
hazardous waste regulations and helps verify that hazardous waste 
shipments are properly received and disposed.
3. What accommodations will EPA make to allow original submitters of 
information and affected facilities to protect potential confidential 
business information (CBI) contained in the documents posted to the 
Export/Import Web site?
    As discussed in the previous section, EPA proposes to apply 
confidentiality determinations to the aforementioned documents related 
to the export, import, and transit of hazardous waste and export of 
excluded CRTs. Based on our analysis of the CBI criteria provided in 
Section I.E. of this proposed rule, we conclude that the information 
contained in the aforementioned documents related to the export, 
import, and transit of hazardous waste and export of excluded CRTs is 
essentially public information. Therefore, we propose that no CBI 
claims may be asserted with respect to any of the aforementioned 
documents, including hazardous waste export and import confirmations of 
receipt and confirmations of recovery or disposal.
4. What recordkeeping requirements apply to confirmations of receipt 
and confirmations of recovery or disposal with this proposed rule?
    Each confirmation of receipt and confirmation of recovery or 
disposal posted to the company Web sites of hazardous waste exporters 
and receiving facilities of hazardous waste from foreign sources must 
be publicly available for a period of at least three years following 
the date on which the document was first required to be posted to the 
Web site. The proposed internet posting requirements do not affect the 
current recordkeeping requirements for retaining paper copies of the 
export confirmations of receipt, export confirmations of completing 
recovery or disposal, import confirmations of receipt, and import 
confirmations of completing recovery or disposal. These paper documents 
must be retained by exporters and receiving facilities for a period of 
at least three (3) years.
    After the electronic import-export reporting compliance date when 
confirmations will be submitted electronically, the requirement to post 
these copies and to make them publicly available for three years does 
not apply.

[[Page 85467]]

Records of the confirmations must be kept as either paper copies or 
electronic submittals retained in the exporter's account on EPA's Waste 
Import Export Tracking System (WIETS), or its successor system, 
provided that copies are readily available for reviewing and production 
if requested by any EPA or authorized state inspector, as stated in the 
Hazardous Waste Export-Import Revisions rule published in this Federal 
Register and in Sec.  262.83(i)(2) and Sec.  262.84(h)(3).

III. Summary of This Proposed Rule

A. Changes to 40 CFR 260.2

    EPA is proposing a confidentiality determination to exclude 
hazardous waste export, import, and transit documents and CRT export 
documents from confidentiality claims.

B. Changes to 40 CFR 262.83 and 262.84

    EPA is proposing to modify the reporting and recordkeeping 
requirements for exporters of hazardous waste and receiving facilities 
such that, prior to the future electronic import/export reporting 
compliance date, regulated parties are required to maintain a single, 
publicly accessible Web site (``Export/Import Web site'') containing 
readable, read-only, publicly accessible, downloadable images of the 
following documents: Export confirmations of receipt; export 
confirmations of recovery or disposal; import confirmations of receipt; 
and import confirmations of recovery or disposal. The exporter's Web 
site must be titled ``Hazardous Waste Export/Import Regulations 
Compliance Documents.''
    Each document posted to the Export/Import Web site must be publicly 
accessible on the Web site by the first of March of each year and 
include all of the confirmations of receipt and confirmations of 
recovery or disposal received by the exporter or sent out by the 
receiving facility during the previous calendar year. Each confirmation 
must be publicly available for a period of at least three years 
following the date on which the document was first required to be 
posted to the Web site. This requirement to post these copies and to 
make them publicly available for three years does not apply, however, 
after the electronic import-export reporting compliance date. The 
documents must clearly identify the EPA ID number of the exporter or 
receiving facility, the consent number associated with the shipment, 
and the shipment number relative to the total number of allowable 
shipments for the consent number. These documents must be retained by 
exporters or receiving facilities for a period of at least three (3) 
years.

C. Changes to 40 CFR 264.74

    EPA is proposing to modify the reporting and recordkeeping 
requirements for the owner or operator of a facility that is arranging 
or has arranged to receive hazardous waste subject to 40 CFR part 262, 
subpart H from a foreign source such that, prior to the future 
electronic import-export reporting compliance date, regulated parties 
will be required to maintain a single, publicly available Web site 
containing readable, read-only, publicly accessible, downloadable 
images of the following documents: Import confirmations of receipt and 
import confirmations of recovery or disposal. The receiving facility's 
Web site must be titled ``Hazardous Waste Export/Import Rule Compliance 
Documents.'' Each document posted to the Export/Import Web site must be 
publicly accessible on the Web site by the first of March of each year 
and include all of the confirmations of receipt and confirmations of 
recovery or disposal sent out by the receiving facility during the 
previous calendar year. Each confirmation must be publicly available 
for a period of at least three years following the date on which the 
document was first required to be posted to the Web site. (This 
requirement to post these copies and to make them publicly available 
for three years does not apply, however, after the electronic import-
export reporting compliance date.) These documents must be retained by 
the receiving facilities for a period of at least three (3) years.

D. Changes to 40 CFR Part 265.74

    EPA is proposing to modify the reporting and recordkeeping 
requirements for the owner or operator of a facility that is arranging 
or has arranged to receive hazardous waste subject to 40 CFR part 262, 
subpart H from a foreign source such that, prior to the future 
electronic import-export reporting compliance date, regulated parties 
will be required to maintain a single, publicly available Web site 
containing readable, read-only, publicly accessible, downloadable 
images of the following documents: Import confirmations of receipt and 
import confirmations of recovery or disposal documents. The receiving 
facility's Web site must be titled ``Hazardous Waste Export/Import Rule 
Compliance Documents.'' Each document posted to the Export/Import Web 
site must be publicly accessible on the Web site by the first of March 
of each year and include all of the confirmations of receipt and 
confirmations of recovery or disposal sent out by the receiving 
facility during the previous calendar year. Each confirmation must be 
publicly available for a period of at least three years following the 
date on which the document was first required to be posted to the Web 
site. This requirement to post these copies and to make them publicly 
available for three years does not apply, however, after the electronic 
import-export reporting compliance date. These documents must be 
retained by the receiving facilities for a period of at least three (3) 
years.

E. Changes to 40 CFR Part 267.71

    EPA is proposing to modify the reporting and recordkeeping 
requirements for the owner or operator of a facility that is arranging 
or has arranged to receive hazardous waste subject to 40 CFR part 262, 
subpart H from a foreign source such that, prior to the future 
electronic import-export reporting compliance date, regulated parties 
will be required to maintain a single, publicly available Web site 
containing readable, read-only, publicly accessible, downloadable 
images of the import confirmations of receipt. The receiving facility's 
Web site must be titled ``Hazardous Waste Export/Import Rule Compliance 
Documents.'' Each document posted to the Export/Import Web site must be 
publicly accessible on the Web site by the first of March of each year 
and include all of the confirmations of receipt and confirmations of 
recovery or disposal sent out by the receiving facility during the 
previous calendar year. Each confirmation must be publicly available 
for a period of at least three years following the date on which the 
document was first required to be posted to the Web site. This 
requirement to post these copies and to make them publicly available 
for three years does not apply, however, after the electronic import-
export reporting compliance date. These documents must be retained by 
the receiving facilities for a period of at least three (3) years.

IV. Costs and Benefits of the Proposed Rule

A. Introduction

    The Agency's economic assessment conducted in support of this 
proposed action evaluates costs, cost savings, benefits, and other 
impacts, such as environmental justice, children's health, unfunded 
mandates, regulatory takings, and small entity impacts. To conduct this 
analysis, we developed and

[[Page 85468]]

implemented a methodology for examining impacts, and followed 
appropriate guidelines and procedures for examining equity 
considerations, children's health, and other impacts.

B. Analytical Scope

    This economic analysis assesses the costs and cost savings of the 
proposed rule. It estimates the unit costs for each provision of the 
rule and applies these values to the number of affected entities, and 
it employs a ``model entity'' approach to estimate the cost and cost 
savings associated with the proposed rule, applying average costs by 
entity type (i.e., exporter, importer, transporter, or recognized 
trader) and foreign trade partner. The costs (and cost savings) of the 
proposed rule are estimated over a twenty-year time horizon and using a 
seven percent discount rate.
    The analysis conducted for this proposal is a simple cost 
assessment. We do not attempt to estimate the social costs and benefits 
associated with this action. This is consistent with Executive Order 
12866, which requires a full Regulatory Impact Analysis only for 
actions having an estimated impact on society of greater than $100 
million per year.

C. Cost Impacts

    Regulated parties will incur costs to familiarize itself with the 
requirements of the rule and comply with each of the provisions 
described in the summary of the proposed rule and changes. The most 
significant costs to industry under the proposed rule are associated 
with the posting of the required documents to the Export/Import Web 
site until the electronic submittal capabilities of WIETS are fully 
developed.
    As a result of the rule, the annualized costs to regulated parties 
are estimated to be about $99,309 if the electronic submittal 
capabilities of WIETS are developed in 2018 and estimated to be about 
$333,993 if the electronic submittal capabilities of WIETS are 
developed in 2022, using a 7 percent discount rate.

D. Benefits

    There are a number of qualitative benefits associated with this 
proposed rule.
    During the interim period, the rule will:
     Achieve greater transparency and public accessibility of 
export and import documentation;
     Improve the public's ability to acquire information 
regarding the quantities of U.S. hazardous waste exports and imports;
     Help monitor proper compliance with EPA's hazardous waste 
regulations and verify that hazardous waste shipments are properly 
received and disposed.

Due to data availability, EPA could not quantify all the benefits, such 
as human health benefits from increased compliance with the rule.

V. 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 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 export functions in the previous 40 CFR part 262 
subpart E, import functions in the previous 40 CFR part 262 subpart F, 
import/export functions in the previous or revised 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 proposed rule contains amendments to the revised 40 CFR part 
262 subpart H. The rule also contains related amendments to 40 CFR 
parts 260, 262, 264, 265, and 267, all of which are more stringent.
    The States that have already adopted 40 CFR part 262 subparts E, F 
and H, 40 CFR parts 263, 264, 265, and any other import/export related 
regulations, and that will be adopting the revisions in the Hazardous 
Waste Export-Import Revisions Final Rule, published in the ``Rules and 
Regulations'' section of this Federal Register, 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, or the optional exclusions for samples in 40 CFR 261.4(d) 
and (e) are required to adopt the revisions related to those exclusions 
in this final rule.
    When a State adopts the import/export provisions in this rule (if 
final), they must not replace Federal or international references or 
terms with State references or terms.
    The provisions of this rule, if final, will take effect in all 
States on the effective date of the rule, since these import and export 
requirements will be

[[Page 85469]]

administered by the Federal government as a foreign policy matter, and 
will not be administered by States.

VI. 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 and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This proposed rule is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review. The EPA prepared an economic analysis of the potential 
costs and benefits associated with this action. This analysis, titled 
``Regulatory Impact Analysis: Internet Posting and Confidentiality 
Determinations for Hazardous Waste Export and Import Documents Proposed 
Rule,'' is available in the docket. Interested persons, including those 
persons currently importing and exporting hazardous waste, are 
encouraged to read and comment on the accuracy of the assumptions and 
the burden estimates presented in this document (e.g., for Web site 
development, hiring or training of additional staff, including legal 
counsel or external consultants, to comply with the finalized 
requirements).

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the PRA. The Information Collection Request (ICR) document 
that the EPA prepared has been assigned EPA ICR number 2557.01. You can 
find a copy of the ICR in the docket for this rule, and it is briefly 
summarized here.
    This action proposes that exporters of hazardous waste and 
receiving facilities of hazardous waste post read-only, publicly 
accessible, downloadable images of required documents to a single 
publicly accessible Web site to be developed and maintained by each 
regulated party.
    Respondents/affected entities: Recycling and disposal facilities 
who receive imports of hazardous waste and all persons who export or 
import (or arrange for the export or import) hazardous waste being 
shipped for either recycling or disposal, SLABs being shipped for 
reclamation, industrial ethyl alcohol being shipped for reclamation, 
and hazardous recyclable materials being shipped for precious metal 
recovery, and hazardous waste samples of more than 25 kilograms being 
shipped for waste characterization or treatability studies.
    Respondent's obligation to respond: Required per proposed 
regulations 40 CFR 262.83, 262.84, 264.74, 265.74, and 267.71 under 
RCRA (42 U.S.C. 6901 et seq., 6905, 6912, 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974).
    Estimated number of respondents: 476.
    Frequency of response: Yearly.
    Total estimated burden: 4452 hours (per year). Burden is defined at 
5 CFR 1320.3(b).
    Total estimated cost: $0, includes $0 annualized capital or 
operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for the 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to the EPA using the docket identified at 
the beginning of this rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs via email to 
OIRA_submission@omb.eop.gov, Attention: Desk Officer for the EPA. Since 
OMB is required to make a decision concerning the ICR between 30 and 60 
days after receipt, OMB must receive comments no later than December 
28, 2016. The EPA will respond to any ICR-related comments in the final 
rule.

C. 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. The 
small entities subject to the requirements of this action are exporters 
of hazardous waste and receiving facilities of hazardous waste from 
foreign sources. The Agency has determined that approximately 22 
percent of exporters and approximately 25 percent of facilities 
receiving hazardous waste from foreign sources, are small entities, 
generating an average revenue of approximately $41 million and $8 
million annually. The cumulative average cost of this proposed action 
will not exceed one percent of annual revenues for any one entity. 
Details of this analysis are presented in Section 5.2 of ``Regulatory 
Impact Analysis: Internet Posting and Confidentiality Determinations 
for Hazardous Waste Export and Import Documents Proposed Rule,'' which 
is available in the docket.

D. 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. Further, UMRA does 
not apply to the portions of this action concerning application of OECD 
import and export procedures because those portions are necessary for 
the national security or the ratification or implementation of 
international treaty obligations (i.e., the 1986 OECD Decision-
Recommendation and the Amended 2001 OECD Decision).

E. 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.

F. 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.

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

    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that the EPA has reason to believe may disproportionately affect 
children, per the definition of ``covered regulatory action'' in 
section 2-202 of the Executive Order. This action is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866, and because the EPA does not believe 
the environmental health or safety risks addressed by this action 
present a disproportionate risk to children. The requirements in this 
action should prevent mismanagement

[[Page 85470]]

of hazardous wastes in foreign countries and better document proper 
management of imported hazardous wastes in the United States.

H. 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.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

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

    The EPA believes that this action is not subject to Executive Order 
12898 (59 FR 7629, February 16, 1994) because it does not establish an 
environmental health or safety standard. This action is designed to 
increase the accessibility and transparency of documentation of 
individual hazardous waste import and export shipments.

K. Executive Order 13659: Streamlining the Export/Import Process for 
America's Businesses

    Executive Order 13659, titled ``Streamlining the Export/Import 
Process for America's Businesses'' (79 FR 10657, February 25, 2014), 
establishes federal executive policy on improving the technologies, 
policies, and other controls governing the movement of goods across our 
national borders. This proposed action strengthens the accessibility 
and transparency of documentation by requiring public internet posting 
of confirmation of receipt and confirmation of recovery or disposal of 
individual export and import shipments of hazardous wastes prior to the 
future electronic import-export reporting compliance date EPA will 
establish in a separate Federal Register notice. Thus, this proposed 
action is consistent with the purpose of Executive Order 13659.

List of Subjects

40 CFR Part 260

    Environmental protection, CRTs, Exports, Hazardous materials 
transportation, Hazardous waste, Imports, Labeling, Packaging and 
containers, Reporting and recordkeeping requirements, Transits.

40 CFR Part 262

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

40 CFR Part 264

    Environmental protection, Hazardous waste, Imports, Reporting and 
recordkeeping requirements.

40 CFR Part 265

    Environmental protection, Hazardous waste, Imports, Reporting and 
recordkeeping requirements.

40 CFR Part 267

    Environmental protection, Hazardous waste, Imports, Reporting and 
recordkeeping requirements.

    Dated: October 28, 2016.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, title 40, chapter 1 of the 
Code of Federal Regulations is proposed to be amended 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), 6921-27, 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 [final rule effective date], 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(c), 262.83, 262.84, 264.12(a), 264.71(d), 
265.12(a), 265.71(d), and 267.71(d), whether submitted to EPA 
electronically 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(c), 262.83, 
262.84, 264.12(a), 264.71(d), 265.12(a), 265.71(d), and 267.71(d) of 
this chapter available to the public under this section when these 
electronic or paper documents are considered by EPA to be releasable 
and final. 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 public documents and are considered 
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 were made.
* * * * *

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

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

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

0
4. In Sec.  262.83, as amended in a final rule published elsewhere in 
this issue of the Federal Register and effective December 31, 2016, add 
paragraph (i)(4) to read as follows:


Sec.  262.83  Exports of hazardous waste.

* * * * *
    (i) * * *
    (4) Prior to the electronic import-export reporting compliance 
date, the exporter must post copies of the export confirmations of 
receipt and confirmations of recovery or disposal that the exporter 
receives to the exporter's publicly accessible Web site (Export/Import 
Web site). The exporter's Web site must be titled ``Hazardous Waste 
Export/Import Rule Compliance Documents.'' The posted copies must be 
clearly readable, read-only, publicly accessible, and downloadable, and 
the file names of each copy must clearly identify the document type, 
EPA ID number of the facility, and consent number associated with the 
shipment. Each copy must be posted no later than by the first of March 
of each year and include all of the confirmations of receipt and 
confirmations of recovery or disposal received by the exporter during 
the previous calendar year. Each confirmation must be maintained on the 
exporter's Web site for at least three (3)

[[Page 85471]]

years from the date it was initially required to be posted. This 
requirement to post these copies does not apply after the electronic 
import-export reporting compliance date.
0
5. In Sec.  262.84, as amended in a final rule published elsewhere in 
this issue of the Federal Register and effective December 31, 2016, add 
paragraph (h)(5) to read as follows:


Sec.  262.84  Imports of hazardous waste.

* * * * *
    (h) * * *
    (5) Prior to the electronic import-export reporting compliance 
date, the receiving facility must post copies of the import 
confirmations of receipt and confirmations of recovery or disposal that 
the receiving facility sends to the foreign exporter to the receiving 
facility's publicly accessible Web site (Export/Import Web site). The 
receiving facility's Web site must be titled ``Hazardous Waste Export/
Import Rule Compliance Documents.'' The posted copies must be clearly 
readable, read-only, publicly accessible, and downloadable, and the 
file names of each copy must clearly identify the document type, EPA ID 
number of the facility, and consent number associated with the 
shipment. Each copy must be posted no later than by the first of March 
of each year and include all of the confirmations of receipt and 
confirmations of recovery or disposal sent out by the receiving 
facility during the previous calendar year. Each confirmation must be 
maintained on the receiving facility's Web site for at least three (3) 
years from the date it was initially required to be posted. This 
requirement to post these copies does not apply after the electronic 
import-export reporting compliance date.

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

0
6. The authority citation for part 264 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

0
7. Amend 264.74 by adding paragraph (d) to read as follows:


Sec.  264.74   Availability, retention, and disposition of records.

* * * * *
    (d) Prior to the electronic import-export reporting compliance 
date, the owner or operator of a facility that is arranging or has 
arranged to receive hazardous waste subject to 40 CFR part 262, subpart 
H from a foreign source must post copies of the import confirmations of 
receipt and confirmations of recovery or disposal that the facility 
sends to the foreign exporter to the facility's publicly accessible Web 
site (Export/Import Web site). The receiving facility's Web site must 
be titled ``Hazardous Waste Export/Import Rule Compliance Documents.'' 
The posted copies must be clearly readable, read-only, publicly 
accessible, and downloadable, and the file names of each copy must 
clearly identify the document type, EPA ID number of the facility, and 
consent number associated with the shipment. Each copy must be posted 
no later than by the first of March of each year and include all of the 
confirmations of receipt and confirmations of recovery or disposal sent 
out by the receiving facility during the previous calendar year. Each 
confirmation must be maintained on the receiving facility's Web site 
for at least three (3) years from the date it was initially required to 
be posted. This requirement to post these copies does not apply after 
the electronic import-export reporting compliance date.

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

0
8. The authority citation for part 265 continues to read as follows:

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

0
9. Amend 265.74 by adding paragraph (d) to read as follows:


Sec.  265.74   Availability, retention, and disposition of records.

* * * * *
    (d) Prior to the electronic import-export reporting compliance 
date, the owner or operator of a facility that is arranging or has 
arranged to receive hazardous waste subject to 40 CFR part 262, subpart 
H from a foreign source must post copies of the import confirmations of 
receipt and confirmations of recovery or disposal that the facility 
sends to the foreign exporter to the facility's publicly accessible Web 
site (Export/Import Web site). The receiving facility's Web site must 
be titled ``Hazardous Waste Export/Import Rule Compliance Documents.'' 
The posted copies must be clearly readable, read-only, publicly 
accessible, and downloadable, and the file names of each copy must 
clearly identify the document type, EPA ID number of the facility, and 
consent number associated with the shipment. Each copy must be posted 
no later than by the first of March of each year and include all of the 
confirmations of receipt and confirmations of recovery or disposal sent 
out by the receiving facility during the previous calendar year. Each 
confirmation must be maintained on the receiving facility's Web site 
for at least three (3) years from the date it was initially required to 
be posted. This requirement to post these copies does not apply after 
the electronic import-export reporting compliance date.

PART 267--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
FACILITIES OPERATING UNDER A STANDARDIZED PERMIT

0
9. The authority citation for part 267 continues to read as follows:

    Authority: 42 U.S.C. 6902, 6912(a), 6924-6926, and 6930.

0
10. Amend Sec.  267.71 by adding paragraph (e) as follows:


Sec.  267.71  Use of the manifest system.

* * * * *
    (e) Prior to the electronic import-export reporting compliance 
date, the facility that receives hazardous waste subject to 40 CFR part 
262, subpart H from a foreign source must post copies of the import 
confirmations of receipt and confirmations of recovery or disposal that 
the facility sends to the foreign exporter to the facility's publicly 
accessible Web site (Export/Import Web site). The receiving facility's 
Web site must be titled ``Hazardous Waste Export/Import Rule Compliance 
Documents.'' The posted copies must be clearly readable, read-only, 
publicly accessible, and downloadable, and the file names of each copy 
must clearly identify the document type, EPA ID number of the facility, 
and consent number associated with the shipment. Each copy must be 
posted no later than by the first of March of each year and include all 
of the confirmations of receipt and confirmations of recovery or 
disposal sent out by the receiving facility during the previous 
calendar year. Each confirmation must be maintained on the receiving 
facility's Web site for at least three (3) years from the date it was 
initially required to be posted. This requirement to post these copies 
does not apply after the electronic import-export reporting compliance 
date.

[FR Doc. 2016-27431 Filed 11-25-16; 8:45 am]
 BILLING CODE 6560-50-P