issue-1996-04-12•Federal Register final rules — 1996-04-12
Federal Register final rules — 1996-04-12
issue-1996-04-12Federal Register final rules — 1996-04-12Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-9169 Special Food or Meals
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Page 16374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9169]
[[Page 16373]]
_______________________________________________________________________
Part V
Department of Justice
_______________________________________________________________________
Bureau of Prisons
_______________________________________________________________________
28 CFR Part 547
Special Food or Meals; Final Rule
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules
and Regulations
[[Page 16374]]
DEPARTMENT OF JUSTICE
Bureau of Prisons
28 CFR Part 547
[BOP-1044-F]
RIN 1120-AA37
Special Food or Meals
AGENCY: Bureau of Prisons, Justice.
ACTION: Final rule.
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SUMMARY: In this document, the Bureau of Prisons is revising its
regulations on the introduction into institutions of special food or
meals from outside sources. The revised provisions state more clearly
that the Bureau is responsible for procuring and preparing any food or
food ingredients served to the institution's inmate population. Special
food or meals which may be served to specific groups of inmates rather
than to the entire inmate population are identified as commissary food
items, religious dietary practices, and medical diet foods. This
amendment is intended to provide for the secure and orderly operation
of the institution.
EFFECTIVE DATE: May 13, 1996.
ADDRESSES: Office of General Counsel, Bureau of Prisons, HOLC Room 754,
320 First Street, NW., Washington, DC 20534.
FOR FURTHER INFORMATION CONTACT: Roy Nanovic, Office of General
Counsel, Bureau of Prisons, phone (202) 514-6655.
SUPPLEMENTARY INFORMATION: The Bureau of Prisons is amending its
regulations on special foods (28 CFR 547.20). A proposed rule on this
subject was published in the Federal Register September 13, 1995 (60 FR
47648). No comment was received on this proposed rule, and the Bureau
is therefore adopting the proposed rule as final. In adopting the
proposed rule as final, the Bureau is modifying one provision for the
purpose of clarification. As proposed, paragraph (b) of Sec. 547.20
referred to religious diet or ceremonial meals and included a cross
reference to the pertinent regulations on religious beliefs and
practices. Interim regulations on religious beliefs and practices were
published in the Federal Register on September 6, 1995 (60 FR 46485).
The wording in paragraph (b) and the cross reference have been adjusted
accordingly.
Members of the public may submit comment concerning this rule by
writing the previously cited address. These comments will be considered
but will receive no response in the Federal Register.
The Bureau of Prisons has determined that this rule is not a
significant regulatory action for the purpose of E.O. 12866, and
accordingly was not reviewed by the Office of Management and Budget.
After review of the law and regulations, the Director, Bureau of
Prisons has certified that this rule, for the purpose of the Regulatory
Flexibility Act (Pub. L. 96-354), does not have a significant impact on
a substantial number of small entities.
List of Subjects in 28 CFR Part 547
Prisoners.
Kathleen M. Hawk,
Director, Bureau of Prisons.
Accordingly, pursuant to the rulemaking authority vested in the
Attorney General in 5 U.S.C. 552(a) and delegated to the Director,
Bureau of Prisons in 28 CFR 0.96(p), part 547 in subchapter C of 28
CFR, chapter V is amended as set forth below.
Subchapter C--Institutional Management
PART 547--FOOD SERVICE
1. The authority citation for 28 CFR part 547 is revised to read as
follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 3621, 3622, 3624, 4001, 4042,
4081, 4082 (Repealed in part as to offenses committed on or after
November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to
offenses committed after that date), 5039; 28 U.S.C. 509, 510; 28
CFR 0.95-0.99.
2. Subpart C, consisting of Sec. 547.20, is revised to read as
follows:
Subpart C--Special Food or Meals
Sec. 547.20 Policy.
The Bureau of Prisons is responsible for procuring and preparing
any food or food ingredients to be served to the institution's inmate
population. Except as allowed for in paragraphs (a) through (c) of this
section, the Bureau requires that special food or meals prepared for
and/or served to any group(s) of inmates also be served to the
institution's entire inmate population. Special food or meals, as
identified in paragraphs (a) through (c) of this section, may be
prepared and/or served to a specific group of inmates rather than to
the entire inmate population of the institution.
(a) Food items sold in the institution's commissary.
(b) Religious dietary practices as authorized in accordance with 28
CFR 548.20.
(c) Medical diet foods.
[FR Doc. 96-9169 Filed 4-11-96; 8:45 am]
BILLING CODE 4410-05-P
Complete official Federal Register PDF
FR Doc. 96-9163 State of Michigan: Withdrawal of Direct Final Action
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Page 16229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9163]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[MI40-02-7253; FRL-5456-2]
State of Michigan: Withdrawal of Direct Final Action
AGENCY: United States Environmental Protection Agency (USEPA).
ACTION: Withdrawal of direct final action.
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SUMMARY: On February 14, 1996, the USEPA published a proposed rule (61
FR 5724) and a direct final rule (61 FR 5694) approving State
Implementation Plan (SIP) revision for the State of Michigan which was
submitted pursuant to the USEPA transportation conformity rules set
forth at 40 CFR part 51 subpart T--Conformity to State or Federal
Implementation Plans of Transportation Plans, Programs, and Projects
Developed, Funded or Approved Under Title 23 U.S.C. or the Federal
Transit Act. The USEPA is withdrawing the final rule due to adverse
comments and will summarize and address all public comments received in
a subsequent final rule (based upon the proposed rule cited above).
EFFECTIVE DATE: This withdrawal of the direct final action will be
effective April 12, 1996.
ADDRESSES: Copies of the documents relevant to this action are
available for public inspection during normal business hours at the
following location: United States Environmental Protection Agency,
Region 5, 77 West Jackson Boulevard, Chicago, Illinois, 60604.
FOR FURTHER INFORMATION CONTACT: Michael G. Leslie, Regulation
Development Section, Air Programs Branch (AR-18J), United States
Environmental Protection Agency, Region 5, 77 West Jackson Boulevard,
Chicago, Illinois, 60604. Telephone: (312) 353-6680.
List of Subjects in 40 CFR Part 52
Environmental protection, Air pollution control, Carbon monoxide,
Transportation conformity, Hydrocarbons, Intergovernmental relations,
Oxides of Nitrogen, Ozone, Volatile organic compounds.
Authority: 42 U.S.C. 7401-7671q.
Dated: March 21, 1996.
Valdas V. Adamkus,
Regional Administrator.
[FR Doc. 96-9163 Filed 4-11-96; 8:45 am]
BILLING CODE 6560-50-P
Complete official Federal Register PDF
FR Doc. 96-9026 Revision of Fee Schedules; 100% Fee Recovery, FY 1996
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16203-16226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9026]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules
and Regulations
[[Page 16203]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 170 and 171
RIN 3150-AF39
Revision of Fee Schedules; 100% Fee Recovery, FY 1996
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the
licensing, inspection, and annual fees charged to its applicants and
licensees. The amendments are necessary to implement the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90), which mandates that the NRC
recover approximately 100 percent of its budget authority in Fiscal
Year (FY) 1996 less amounts appropriated from the Nuclear Waste Fund
(NWF). The amount to be recovered for FY 1996 is approximately $462.3
million.
EFFECTIVE DATE: June 11, 1996.
ADDRESSES: Copies of comments received and the agency workpapers that
support these final changes to 10 CFR Parts 170 and 171 may be examined
at the NRC Public Document Room at 2120 L Street, NW., (Lower Level),
Washington, DC 20555-0001.
FOR FURTHER INFORMATION CONTACT: C. James Holloway, Jr., Office of the
Controller, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Telephone 301-415-6213.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Responses to Comments.
III. Final Action.
IV. Section-by-Section Analysis.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Regulatory Flexibility Analysis.
IX. Backfit Analysis.
I. Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), enacted November 5, 1990, requires that the NRC recover
approximately 100 percent of its budget authority, less the amount
appropriated from the Department of Energy (DOE) administered NWF, for
FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in 1993 to
extend the NRC's 100 percent fee recovery requirement through FY 1998.
The NRC assesses two types of fees to recover its budget authority.
First, license and inspection fees, established in 10 CFR Part 170
under the authority of the Independent Offices Appropriation Act
(IOAA), 31 U.S.C. 9701, recover the NRC's costs of providing
individually identifiable services to specific applicants and
licensees. Examples of the services provided by the NRC for which these
fees are assessed are the review of applications for the issuance of
new licenses, approvals or renewals, and amendments to licenses or
approvals. Second, annual fees, established in 10 CFR Part 171 under
the authority of OBRA-90, recover generic and other regulatory costs
not recovered through 10 CFR Part 170 fees.
On June 20, 1995 (60 FR 32218), the NRC published its final rule
establishing the licensing, inspection, and annual fees necessary for
the NRC to recover approximately 100 percent of its budget authority
for FY 1995, less the appropriation received from the Nuclear Waste
Fund. The NRC stated in the FY 1995 final rule that in an effort to
stabilize annual fees, beginning in FY 1996, the NRC would adjust the
annual fees by the percentage change (plus or minus) in NRC's total
budget authority unless there was a substantial change in the total NRC
budget authority or the magnitude of the budget allocated to a specific
class of licensees, in which case the annual fee base would be
recalculated (60 FR 32225; June 20, 1995). The NRC also stated that the
percentage change would be adjusted based on changes in the 10 CFR Part
170 fees and other receipts as well as on the number of licensees
paying fees.
On January 30, 1996 (61 FR 2948), the NRC published a proposed rule
to establish the licensing, inspection, and annual fees necessary for
the NRC to recover approximately 100 percent of its budget authority
for FY 1996, less the appropriation received from the Nuclear Waste
Fund. Several changes were proposed by the NRC to the fees to be
assessed for FY 1996. These changes were highlighted in the proposed
rule (61 FR 2948; January 30, 1996). The major changes are summarized
as follows:
1. Stabilize 10 CFR Part 171 annual fees by adjusting all annual
fees downward by about 6 percent. This change is consistent with the
NRC's intention, stated in the FY 1995 final rule, that annual fees
would be stabilized, beginning in FY 1996, by adjusting the FY 1995
annual fees by the percent change (plus or minus) in the NRC budget
authority taking into consideration the estimated collections from 10
CFR Part 170 fees and the number of licensees paying fees;
2. Assess 10 CFR Part 171 annual fees of less than $100,000 to
materials licensees on the anniversary date of the license. This change
continues the streamlining of fees and allows the NRC to make the
billing process more efficient by distributing the billing and
collection of annual fees over the entire year. The current practice is
to bill over 6,000 materials licensees at the same time during the
fiscal year;
3. Eliminate the materials ``flat'' renewal fees in 10 CFR 170.31
and include the costs of the renewals in the annual fees in 10 CFR
171.16(d) for the affected licensees. This change continues the
simplification of fees initiated in FY 1995 and is consistent with
NRC's recent Business Process Reengineering initiatives to extend the
duration of certain materials licenses (61 FR 1109; January 16, 1996);
4. Revise the two professional hourly rates in 10 CFR 170.20 which
are used to determine the Part 170 fees assessed by the NRC. The rate
for FY 1996 for the reactor program is $128 per hour and the rate for
the materials program is $120 per hour; and
5. Adjust the 10 CFR 170.21 and 170.31 licensing (application and
amendment) ``flat'' fees for materials licenses to reflect the costs of
providing the licensing services.
II. Responses to Comments
The NRC received eight comments on the proposed rule. Although the
comment period ended on February 29, 1996, the NRC has reviewed and
[[Page 16204]]
evaluated all comments received, including those that were late.
Many of the comments were similar in nature. For evaluation
purposes, these comments have been grouped, as appropriate, and
addressed as single issues in this final rule. The comments are as
follows:
A. Comments Regarding the Major Changes Proposed in the FY 1996 Fee
Rule
1. Streamline and Stabilize Annual Fees
Comment. All commenters responding to this proposed change were
encouraged by and supported the positive steps taken by NRC to
equitably distribute and to reduce the burden of user fees on
licensees. Several commenters indicated that this change represents a
greater simplification and streamlining of the fee setting procedures
and has eliminated the dramatic swings in NRC fees seen in the past.
Commenters stated that the approximate 6 percent reduction in annual
fees for all licensees is evidence of this. Other commenters stated
that the NRC should continue the process of streamlining and
commensurate fee reduction because it is a responsible approach in
light of today's highly competitive global nuclear marketplace.
Response. Consistent with the comments, the final rule adopts the
methodology to streamline and stabilize FY 1996 annual fees by
adjusting these fees by the percentage change (plus or minus) in NRC's
total budget authority. The FY 1995 annual fees have been used as base
annual fees and these annual fees have been adjusted downward for FY
1996 based on the percentage change in the NRC's budget authority,
taking into consideration the total number of licensees paying fees and
estimated collections from 10 CFR Part 170 licensing and inspection
fees. Therefore for FY 1996, all annual fees have been adjusted 6.5
percent below the FY 1995 levels.
2. Assess Annual Fees of Less Than $100,000 to Materials Licenses on
the Anniversary Date of License
Comment. Commenters supported the NRC's proposal to invoice
materials annual fees of less than $100,000 on the anniversary date of
the license. Commenters stated that, while helping to assist NRC in its
billing efforts, it will also provide some relief to entities who have
several licenses. The proposed system will allow these licensees to
distribute their cash outlays over a longer period of time easing the
financial stresses caused by a single payment period.
Response. Consistent with the comments, the NRC in this final rule
will assess Sec. 171.16(d) annual fees for those materials licenses
whose annual fees are less than $100,000 based on the anniversary of
the date the license was originally issued. Accordingly, a new
paragraph is added to Sec. 171.19. For FY 1996, those affected
materials licenses with a license anniversary date between October 1,
1995, and the effective date of this final FY 1996 fee rule will be
billed upon publication of the final rule in the Federal Register and
annually thereafter during the anniversary month of the license. Those
affected materials licenses whose license anniversary date is on or
after the effective date of this final FY 1996 fee rule will be billed
during the anniversary month of the license and annually thereafter
based on the annual fee in effect at the time of billing. The specific
license categories of materials licensees affected by this change are
listed in Sec. 171.19(d) of this final rule.
3. Revise the Two Professional Rates in 10 CFR 170.20 Based on the FY
1996 Budget and Adjust the 10 CFR 170.21 and 170.31 Licensing
(Application and Amendment) ``Flat'' Fees for Licenses to Reflect the
Costs of Providing the Licensing Services
Comment. Commenters supported the revised method of calculating two
hourly rates adopted by NRC in FY 1995 to separately, and more
equitably, allocate costs associated with the reactor program and the
materials program. Commenters stated that the two rates, based on cost
center concepts that identify and allocate budgeted resources, is
inherently fairer and more equitable to licensees and is more
consistent with Congressional intent to identify and properly assess
fees to those entities that utilize NRC resources and regulatory
services. However, some commenters indicated that, while they are
pleased that the materials rate increase is under 4 percent ($116 per
hour to $120 per hour) and generally in keeping with inflation, the
rate itself is unjustifiably high. These commenters stated that the
$120 hourly rate equals or exceeds the hourly rate of senior
consultants or principals at major (national) consulting companies and
that it exceeds the accepted rate for similar work in private industry.
Some commenters pointed out the increase in the hourly rates exceeds
the general increase that was provided to all Federal government
workers on January 1, 1996, and they encourage the NRC to control its
costs by seeking efficiencies in order to attain a downward trend of
licensing and inspection fees comparable to that being realized in the
annual fees. Other commenters indicated that the average cost per staff
hour assumes a lower number of work hours relative to that commonly
applied in industry and a multiplier which would appear to
significantly exceed those commonly enjoyed by private industry. Some
commenters stated that although summary calculations are presented in
the proposed revisions, insufficient detail is provided to determine
the justification for an increase in the hourly fees, i.e., the NRC has
not listed the assumptions used in forecasting the predicted FTEs (full
time equivalents) considered necessary for the materials program.
Response. Consistent with the comments, the NRC has established in
this final rule two professional hourly rates for FY 1996 which will be
used to determine the 10 CFR Part 170 fees. A rate of $128 per hour is
established in Sec. 170.20 for the reactor program and a second rate of
$120 per hour is established in Sec. 170.20 for the nuclear materials
and nuclear waste programs. The two rates are based on the ``cost
center'' concept that is now being used for budgeting purposes.
The NRC professional hourly rates are established to recover
approximately 100 percent of the agency's Congressionally-approved
budget, less the appropriation from the Nuclear Waste Fund (NWF), as
required by OBRA-90. The rates reflect the NRC budgeted cost per direct
professional hour. This cost includes the salary and benefits for the
direct hours, and a prorata share of the salary and benefits for the
program and agency overhead and agency general and administrative
expenses (e.g., rent, supplies, and information technology). Both the
method and budgeted costs used by the NRC in the development of the
hourly rates of $128 and $120 are discussed in detail in Part III,
Section-by-Section Analysis, relating to Sec. 170.20 of the proposed
rule (61 FR 2951; January 30, 1996) and the same section of this final
rule. For example, Table II shows the budgeted costs and the direct
FTEs that must be recovered through fees assessed for the hours
expended by the direct FTEs. The budgeted costs as well as the direct
resources are those required by the NRC to implement its statutory
responsibilities and effectively accomplish the mission of the agency.
Additional information on the hourly rates is provided in the NRC
workpapers located in the Public Document Room. The specific details
regarding the budget for FY 1996 are documented in the NRC's
publication ``Budget Estimates, Fiscal Years 1996-1997'' (NUREG-1100,
[[Page 16205]]
Volume 11), which is available to the public. Copies of NUREG-1100,
Volume 11, may be purchased from the Superintendent of Documents, U.S.
Government Printing Office, P.O. Box 37082, Washington, DC 20402-9328.
Copies are also available from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also
available for inspection and copying for a fee in the NRC Public
Document Room, 2120 L Street NW. (Lower Level), Washington, DC 20555-
0001.
B. Other Comments
1. Public Interest Exemptions
Comment. Commenters supported NRC's decision to continue to charge
annual fees to Federal agencies and to deny their requests for
exemption based on ``public good'' claims.
Response. Consistent with the proposed rule and the comments
received, the NRC does not intend to grant public good exemptions to
Federal agencies.
2. Fee Legislation
Comment. Several commenters noted that the NRC had completed its
report on fee policy as required by the Energy Policy Act of 1992 and
that the NRC had sent a report to Congress with legislative
recommendations. The commenters commended NRC's efforts in this regard
and stated that they continue to believe that 100 percent fee recovery
for NRC, as mandated by OBRA-90, is inequitable and unfair to licensees
because licensees are paying for certain costs that are not directly
related to and do not benefit them. The commenters acknowledged that
without legislative changes to OBRA-90, the central problems with NRC's
fees cannot be completely resolved. Commenters strongly supported more
efforts to define a more equitable fee base and recommended that the
NRC continue to work with Congress and the Administration to obtain the
necessary legislative changes. In this regard, commenters stated that
it is time for NRC to actively pursue a legislative agenda with
Congress by drafting specific language to modify OBRA-90 or the Atomic
Energy Act.
Response. The need for legislation is beyond the scope of this
rulemaking proceeding. As indicated in the FY 1995 final rule (60 FR
32218; June 20, 1995), the NRC will continue to work with the Congress
to make fees more fair and equitable.
3. Reexamine the Issue of Fees
Comment. Some commenters stated that both Congress and the NRC
should reexamine the whole issue of fees in the context of the
substantial concerns of licensees regarding the trend of more states
entering into the Agreement State program. These commenters refer to
the stated intentions of Pennsylvania, Ohio, Massachusetts, and
Oklahoma to become Agreement States. The commenters indicated that the
NRC would then lose about 30 percent of the existing license base and
fees would significantly increase unless other budgeting methods are
approved or the number of FTEs is reduced in proportion to the
reduction in the number of licenses.
Commenters from the uranium recovery industry also indicated that,
as the uranium recovery industry continues to shrink in size, the
decreasing number of licensees will ultimately be charged increasing
annual fees thereby forcing more financial hardships on an already
depressed industry. Commenters state that the current system gives
preferential treatment to licensees in Agreement States. One commenter
suggested that the NRC should enter into reimbursable agreements with
the Agreement States before FY 1997, as stated in the FY 1995 final
rule. In addition, one commenter believes that NRC should assess the
Environmental Protection Agency (EPA) for NRC work such as review of
regulations promulgated by EPA relating to radionuclide emission
standards.
Response. In FY 1995, the NRC changed the methodology for
allocating those budgeted costs (about 10 percent of the NRC budget
authority) that cause fairness and equity concerns because the
legislation requested by the NRC had not been passed by the Congress
(60 FR 32218; June 20, 1995). These costs, which include the cost of
the Agreement State oversight and regulatory support to the Agreement
States, are now treated in a manner similar to overhead. These costs
are distributed based on the percentage of the budget directly
attributable to a class of licensees. Commenters at that time supported
this method of allocation as being more equitable, pending legislative
relief by Congress to remedy this inequitable situation. If additional
states become Agreement States and the NRC decides to rebaseline the
fees based on substantive changes to the budget, then any increased
cost for Agreement State oversight and regulatory support to the
Agreement States would be identified, treated similar to overhead, and
distributed based on the percentage of the budget directly attributable
to a class of licensees.
The NRC also revised its methodologies in the FY 1995 final rule
for determining annual fees for fuel facility and uranium recovery
licensees. The revised methodologies resulted in annual fees that more
accurately reflect the costs of providing regulatory services to the
subclasses of fuel facility and uranium recovery licensees. The revised
methodologies were fully explained in Section IV, Section-by-Section
Analysis, of the final FY 1995 rule (60 FR 32218; June 20, 1995).
In response to comments relative to annual fee increases as a
result of the decrease in the number of licensees, the changes adopted
in the FY 1995 final rule to stabilize fees should minimize large fee
changes as a result of decreases in licensees. This is substantiated by
this final FY 1996 rule which reduces all annual fees by the percent
change to the FY 1995 levels.
The NRC indicated in the FY 1995 proposed rule (60 FR 14672; March
20, 1995) that it planned to increase the use of reimbursable
agreements with Agreement States and Federal agencies beginning in FY
1997. To this end, the NRC has begun this process for Federal agencies.
For example, in FY 1995 the NRC entered into reimbursable agreements
with the National Aeronautics and Space Administration (NASA) for the
Cassini mission and the Department of Energy (DOE) for plutonium
disposition. Reimbursable agreements with Agreement States, however,
continue to generate strong responses, both positive and negative, on
the part of licensees and Agreement States.
With respect to the interaction between the NRC and EPA on the
promulgation of regulations, NRC interactions with EPA are an integral
part of NRC's responsibilities under the Atomic Energy Act. Therefore,
NRC must include the costs of this work in its budget and cannot
perform such work under reimbursable agreements. In addition, the
Independent Offices Appropriation Act of 1952, as amended, precludes
the NRC from charging fees to Federal agencies for specific services
rendered. While the NRC can assess annual fees to Federal agencies
holding NRC licenses, the EPA is not considered a licensee of the NRC
with respect to regulations promulgated by EPA relating to radionuclide
emission standards.
4. Fees Based on Other Factors
Comment. One commenter indicated that NRC fees should take into
consideration the competitive condition of certain markets and the
effect of fees on domestic and foreign competition. For example, the
commenter suggested that the NRC assess a small fee, such as $5.00 per
pound, on imported uranium
[[Page 16206]]
to help offset the NRC budget and that OBRA-90 be amended to include
this provision. In addition, the commenter suggested that a fee be
added to foreign Separative Work Units (SWUs) used by U.S. utilities to
enrich uranium. The commenter indicated that these fees, if levied,
would not only solve part of the NRC's financing problems, but would
also ``rejuvenate the domestic uranium mining, milling, and enrichment
businesses.'' Another commenter believes that NRC should give full
consideration to the effects of imposing significant annual fees on the
domestic uranium recovery industry particularly in light of the
Secretary of Energy's determination that the industry is non-viable and
the requirement of the Atomic Energy Act that the country maintain a
viable domestic source material industry to sustain vital national
interests.
Response. OBRA-90 requires that the fees assessed to licensees have
a reasonable relationship, to the maximum extent practicable, to the
cost of providing the service. The IOAA requires that licensing fees be
based on the cost of the services rendered. Consistent with these
requirements, the NRC assesses licensing fees for import licenses.
Basing fees on market competitive positions or assessing a $5.00 per
pound surcharge on imported uranium would not be consistent with these
statutes. The issue of adverse economic impact of fees on NRC licensees
was addressed in the FY 1991 final rule published July 10, 1991 (56 FR
31476). The NRC indicated that there will be adverse impacts from
implementing the legislation and to eliminate the adverse effects, the
annual fees would have to be eliminated or reduced. The issues of
basing fees on market competitive positions, the amount of material
possessed, the frequency of use of the material, and the size of the
facilities, were also addressed by the NRC in previous rules and in the
Regulatory Flexibility Analysis in Appendix A to the final rule
published July 10, 1991 (56 FR 31511-31513). The NRC did not adopt that
approach because it would require licensees to submit large amounts of
new data and would require additional NRC staff to evaluate the data
submitted and to develop and administer even more complex fee
schedules. The NRC continues to believe that uniformly allocating the
generic and other regulatory costs to the specific licensee within a
class to determine the amount of the annual fee is a fair, equitable,
and practical way to recover those costs and that establishing reduced
annual fees based on gross receipts (size) is the most appropriate
approach to minimize the impact on small entities. Therefore, the NRC
finds no basis for altering its approach at this time. This approach
was upheld by the D.C. Circuit in its March 16, 1993 decision in
Allied-Signal.
5. Comment
Several comments were received from uranium recovery licensees
suggesting: (1) A tiered fee system that would result in full fees for
operating facilities and reduced fees for facilities in shutdown or
standby status; (2) a licensee review board be established to review
NRC fees annually; (3) the NRC establish standards for its activities,
such as a schedule for response intervals for processing licensing
actions; and (4) 10 CFR Part 170 bills for services rendered be
itemized to show hours spent, a description of the work performed, the
names of individuals who completed the work and the dates the work was
performed.
Response. In response to a petition of rulemaking from the American
Mining Congress (now the National Mining Association) the NRC addressed
each of these comments in the Federal Register on April 28, 1995 (60 FR
20918-20922). For the reasons provided in response to the petition, the
NRC is not adopting the suggestions from the commenters in this final
rule. While denying the petition, the NRC noted that it would continue
its current practice of providing available backup data to support 10
CFR Part 170 licensing and inspection billings upon request by the
licensee or applicant.
6. Relationship Between Fees and Regulatory Services
Comment. Several commenters indicated that although they appreciate
NRC's efforts to stabilize fees, they have concerns about the lack of a
reasonable relationship between the cost to uranium recovery licensees
of NRC's regulatory program and the benefit derived from such services.
The commenters assert that the Commission cannot impose fees under the
IOAA unless there is a rational relationship between the fees and the
regulatory services provided. The commenters, citing Central & S. Motor
Freight Tariff Ass'n v. United States, 777 F.2d 722, 729 (D.C. Cir.
1985), note that in applying this IOAA requirement, the fees assessed
must be reasonably related to, and may not exceed the value of the
service to the recipient whatever the agency's cost may be. The
commenters then suggest that the NRC fee system may violate this
principle because the proposed hourly rate of $120 for services
provided by agency professionals is unduly high.
Response. The Commission believes that its IOAA fee schedule is
fully supported by applicable legal precedent and does not adopt
commenters' suggestion. In upholding the Commission's IOAA fee
schedule, the United States Court of Appeals for the Fifth Circuit held
that the NRC may recover the full cost of providing a service to an
identifiable recipient. (Emphasis in original) Mississippi Power &
Light v. NRC, 601 F.2d at 230. This is consistent with the earlier
teaching of National Cable Television Ass'n Inc. v. FCC, 554 F.2d 1094,
1106 (D.C. 1976) relied upon by the court in Central & S Motor Freight
Tariff Ass'n, supra. There the court held that fees should be a
reasonable approximation of the attributable costs which the Commission
identifies as being expended to benefit the recipient. The Court
suggested that a fee might be questionable if the fee unreasonably
exceeds the value of the specific services for which it is charged.
Here the services provided by the NRC are required for licensees to
maintain their licenses and the benefits derived therefrom. The basis
for the revised hourly rates is fully discussed in NRC's response to
comment A.3. which relate to the hourly rates being assessed by NRC
under 10 CFR Part 170. The commenters have provided virtually no
evidence that could cause the NRC to conclude that its fees
unreasonably exceed the value of the services rendered.
7. Competitive Bids by Contractors
Comment. Two commenters indicated that to control costs government
agencies routinely require competitive bids for contract labor. The
commenters stated that costs incurred by the Oak Ridge National
Laboratory (ORNL) are considered by many licensees to be excessive, yet
NRC awards contracts to ORNL on an apparently sole source basis. The
commenters suggest that NRC consider as large a pool as possible for
potential contractors including both government laboratories and
private consultants when seeking contract labor.
Response. The NRC is committed to making its regulatory programs
more efficient and effective wherever it can do so without diminishing
its ability to protect the public health and safety. The NRC follows
accepted contracting practices in all contract awards. Before
determining whether to place work with a commercial source under the
competitive proposal process or with a DOE laboratory, the NRC
considers the
[[Page 16207]]
type of work to be done, the expertise required, and the past
performance of the contractor. If the NRC determines that commercial
sources are appropriate to perform the work and that conflict of
interest can be avoided, a competitive procurement may be initiated.
Otherwise, a DOE laboratory may be selected to perform the work. Costs
are routinely considered and negotiated in either case.
Costs for particular actions are also affected by the quality of
the licensee submittal, the timeliness and quality of licensees
responses to NRC questions, delays caused by external factors, the
complexity of the site, and the degree of cooperation by the licensee
with NRC.
8. Regulatory Deficiencies
Comment. Two commenters indicated that the proposed rule has no
provision for allowing licensees to object to unreasonable costs. The
commenters stated that without such a mechanism, licensees are at the
mercy of the regulators and are expected to pay for services billed and
that there is no assurance that any given regulatory function performed
by the NRC will be completed expeditiously, efficiently, or within a
reasonable range of cost.
Response. While the NRC is committed to the expeditious review of
each application and uses all reasonable means of keeping costs as low
as feasible, its responsibility for ensuring the public health and
safety and environmental protection cannot be compromised. The NRC is
committed to the effective use of its increasingly limited resources
and therefore cannot afford to use these resources unwisely if it is to
successfully perform its mission. 10 CFR Part 170.51 of the
Commission's regulations provides the mechanism whereby licensees are
allowed to dispute a debt if they believe the debt is incorrect.
Disputed debts must be submitted in accordance with the provisions of
10 CFR Part 15.31 ``Disputed Debts.''
9. Fee Deferral Policy for Standard Plant and Early Site Reviews
Comment. One commenter urged the NRC to reestablish the NRC's
previous fee deferral policy for standard plant and early site reviews
in order to encourage the development of standardized designs and in
light of the NRC decision to issue designs to be certified through
rulemaking rather than by granting a license for the certified design.
Response. The NRC addressed this issue in the FY 1995 final rule
(60 FR 32222; June 20, 1995), indicating that the Commission decided in
its FY 1991 final fee rule that the costs for standardized reactor
design reviews, whether for domestic or foreign applicants, should be
assessed under 10 CFR Part 170 to those filing an application with the
NRC for approval or certification of a standardized design (56 FR
31478; July 10, 1991). The Commission revisited this issue as part of
its review of fee policy required by the Energy Policy Act of 1992
(EPA-92) and reconfirmed its FY 1991 decision. The NRC continues to
believe that the costs of these reviews should be assessed to advanced
reactor applicants. The NRC finds no compelling justification for
singling out these types of applications for special treatment and
shifting additional costs to operating power reactors or other NRC
licensees, and does not believe the points made by the commenter are
sufficient to change current policy.
10. Credit for Services Rendered to NRC by Licensees
Comment. One commenter stated that the company performs services
for the NRC which include training of NRC personnel, familiarization
visits for NRC staff and contractors, and NRC requested tours for
foreign and domestic dignitaries. The commenter believes that recovery
of the costs by the licensee from the NRC would be justified and
suggested that cost recovery for the licensee be implemented via
``credits'' against NRC annual fees.
Response. The annual fees assessed by the NRC are those necessary
to recover 100 percent of its budget authority. In order to give
``credits'' to licensees, the NRC would have to adjust the entire
annual fee structure for a few licensees who volunteer to assist the
NRC from time to time. Other licensees would be required to pick up the
lost sums attributable to the credits. The NRC notes that it is solely
within the discretion of the licensee to determine whether or not such
assistance should be provided to the NRC. Therefore, the NRC is not
adopting this suggestion.
11. Billing of the Office of Nuclear Regulatory Research Activities
Related to Design Certification Reviews
Comment. One commenter stated that NRC should bill design
certification applicants for the Office of Nuclear Reactor Regulation
(NRR) activities only and not bill for any activities relating to the
Office of Nuclear Regulatory Research (RES).
Response. This issue was addressed in the final FY 1995 fee rule.
After careful consideration of the comments received on the proposed
rule, the NRC indicated that beginning with the effective date of the
FY 1995 final fee rule the NRC would bill applicants for RES's direct
review and evaluation of the standard design in support of the NRC's
Final Design Approval (FDA) design certification (60 FR 14673; March
20, 1995). In the final FY 1995 fee rule, the NRC stated that it was
changing its fee policy in this area and that it will charge vendors
for only the research which is necessary to support the issuance of the
FDA or certification. Research initiated to address generic issues,
such as human factors or code development, will be included in the
annual fee assessed under 10 CFR Part 171 annual fees (60 FR 32224;
June 20, 1995). The NRC does not believe the arguments advanced by the
commenter are sufficient to warrant a change in agency policy.
III. Final Action
The NRC is amending its licensing, inspection, and annual fees to
recover approximately 100 percent of its FY 1996 budget authority,
including the budget authority for its Office of the Inspector General,
less the appropriations received from the NWF. For FY 1996, the NRC's
budget authority is $473.3 million, of which $11.0 million has been
appropriated from the NWF. Therefore, OBRA-90 requires that the NRC
collect approximately $462.3 million in FY 1996 through 10 CFR Part 170
licensing and inspection fees and 10 CFR Part 171 annual fees. This
amount to be recovered for FY 1996 is about $41.3 million less than the
total amount to be recovered for FY 1995 and $50.7 million less when
compared to the amount to be recovered for FY 1994. The NRC estimates
that approximately $120.5 million will be recovered in FY 1996 from
fees assessed under 10 CFR Part 170 and other offsetting receipts. The
remaining $341.8 million will be recovered through the 10 CFR Part 171
annual fees established for FY 1996.
As a result of the reduced amount to be recovered for FY 1996 and
the final changes outlined in this section, the FY 1996 annual fees for
all licensees have been reduced by 6.5 percent compared to the annual
fees assessed for FY 1995. The following examples illustrate changes in
annual fees.
------------------------------------------------------------------------
FY 1995 FY 1996
annual fee annual fee
------------------------------------------------------------------------
Class of Licensees:
Power Reactors.............................. $2,936,000 $2,746,000
Nonpower Reactors........................... 56,500 52,800
[[Page 16208]]
High Enriched Uranium Fuel Facility......... 2,569,000 2,403,000
Low Enriched Uranium Fuel Facility.......... 1,261,000 1,179,000
UF6 Conversion Facility..................... 639,200 597,800
Uranium Mills............................... 60,900 57,000
Typical Materials Licensees:
Radiographers............................... 13,900 13,000
Well Loggers................................ 8,100 7,500
Gauge Users................................. 1,700 1,600
Broad Scope Medical......................... 23,200 21,700
------------------------------------------------------------------------
The NRC is also continuing its streamlining of the fee structure
and process for materials licenses which began in FY 1995 and will make
other changes as discussed in Sections A and B. Among the changes will
be a change in the billing date for the annual fees imposed on many
materials licensees.
The NRC's fees for FY 1996 will become effective 60 days after
publication of the final rule in the Federal Register. The NRC will
send a bill for the amount of the annual fee upon publication of the FY
1996 final rule to the licensee or certificate, registration or
approval holder not subject to quarterly billing (those licensees who
pay annual fees of less than $100,000) and whose anniversary date (the
first day of the month in which the original license was issued) is
before the effective date of the final FY 1996 rule. For these
licensees, payment will be due on the effective date of the FY 1996
rule. Those materials licensees whose license anniversary date during
FY 1996 falls after the effective date of the final FY 1996 rule will
be billed during the anniversary month of the license and payment will
be due on the date of the invoice.
A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials,
Import and Export Licenses, and Other Regulatory Services
Four amendments have been made to 10 CFR Part 170. These amendments
do not change the underlying basis for the regulation--that fees be
assessed to applicants, persons, and licensees for specific
identifiable services rendered. The amendments also comply with the
guidance in the Conference Committee Report on OBRA-90 that fees
assessed under the Independent Offices Appropriation Act (IOAA) recover
the full cost to the NRC of identifiable regulatory services each
applicant or licensee receives.
First, the two professional hourly rates established in FY 1995 in
Sec. 170.20 are revised based on the FY 1996 budget. These rates are
based on the FY 1996 direct FTEs and that portion of the FY 1996 budget
that either does not constitute direct program support (contractual
services costs) or is not recovered through the appropriation from the
NWF. These rates are used to determine the Part 170 fees. The NRC has
established a rate of $128 per hour ($223,314 per direct FTE) for the
reactor program. This rate is applicable to all activities whose fees
are based on full cost under Sec. 170.21 of the fee regulations. A
second rate of $120 per hour ($209,057 per direct FTE) is established
for the nuclear materials and nuclear waste program. This rate is
applicable to all materials activities whose fees are based on full
cost under Sec. 170.31 of the fee regulations.
The two rates are based on cost center concepts adopted in FY 1995
(60 FR 32225; June 20, 1995) and used for NRC budgeting purposes. In
implementing cost center concepts, all budgeted resources are assigned
to cost centers to the extent they can be separately distinguished.
These costs include all salaries and benefits, contract support, and
travel that support each cost center activity.
Second, the NRC has adjusted the current Part 170 licensing and
inspection fees in Secs. 170.21 and 170.31 for applicants and licensees
to reflect the changes in the revised hourly rates.
Third, to continue FY 1995 initiatives for streamlining its fee
program and improving the predictability of fees, the NRC has
eliminated certain materials ``flat'' renewal fees in Sec. 170.31 and
has amended Sec. 170.12 accordingly. This final action is also
consistent with NRC's recent Business Process Reengineering initiative
to extend the duration of certain materials licenses. The NRC published
a proposed rule in the Federal Register for comment on September 8,
1995 (60 FR 46784) explaining this initiative. In the September 8,
1995, proposed rule, certain materials licenses would be extended for
five years beyond their expiration date. Additionally, comments were
requested on the general topic of the appropriate duration of licenses.
A final rule was published in the Federal Register on January 16, 1996
(61 FR 1109).
The elimination of 10 CFR Part 170 materials ``flat'' renewal fees
continues to recognize that the NRC's ``regulatory service'' provided
to licensees, as referred to in OBRA-90, is comprised of the total
regulatory activities that the NRC determines are needed to regulate a
class of licensees. These regulatory activities include not only
renewals but also inspections, research, rulemaking, orders,
enforcement actions, responses to allegations, incident investigations,
and other activities necessary to regulate classes of licensees. This
final action does not result in any net fee increases for affected
licensees and would provide those licensees with greater fee
predictability, a frequent licensee request in comments on past fee
rules. The materials annual fees, which include the cost for any
renewals, are effective for FY 1996. Materials licensees who paid a
``flat'' 10 CFR Part 170 renewal fee for renewal applications filed in
FY 1996 will receive a refund for those payments, as appropriate.
Fourth, the language in Sec. 170.31, Category 15, relating to
export and import licenses, is amended to clarify that export and
import of materials includes the export and import of radioactive
waste. The NRC amended 10 CFR Part 110 effective August 21, 1995 (60 FR
37556; July 21, 1995), to require specific licenses for the export or
import of radioactive waste.
In summary, the NRC has (1) revised the two 10 CFR Part 170 hourly
rates; (2) revised the licensing fees assessed under 10 CFR Part 170 to
reflect the cost to the agency of providing the service; (3) eliminated
the materials ``flat'' renewal fees in Sec. 170.31 and amended
Sec. 170.12 accordingly; and (4) amended Category 15 in Sec. 170.31 to
make clear that fees will be assessed for licenses authorizing the
export or import of radioactive waste.
B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Operating
Licenses, and Fuel Cycle Licenses and Materials Licenses, Including
Holders of Certificates of Compliance, Registrations, and Quality
Assurance Program Approvals and Government Agencies Licensed by NRC
Three amendments have been made to 10 CFR Part 171. First, the NRC
is amending Secs. 171.15 and 171.16 to revise the annual fees for FY
1996 to recover approximately 100 percent of the FY 1996 budget
authority, less fees collected under 10 CFR Part 170 and funds
appropriated from the NWF.
In the FY 1995 final rule, the NRC stated that it would stabilize
annual fees as follows. Beginning in FY 1996, the NRC would adjust the
annual fees only by the percentage change (plus or minus) in NRC's
total budget authority unless there was a substantial change in the
total NRC budget authority or the magnitude of the budget allocated to
a specific class of licensees. If either case occurred, the annual fee
base would be
[[Page 16209]]
recalculated (60 FR 32225; June 20, 1995). The NRC also indicated that
the percentage change would be adjusted based on changes in the 10 CFR
Part 170 fees and other receipts as well as on the number of licensees
paying the fees. The NRC does not believe the changes to the FY 1996
budget compared to the FY 1995 budget warrant establishing new baseline
fees for FY 1996. Therefore, the NRC is establishing the FY 1996 annual
fees for all licensees at a level of 6.5 percent below the FY 1995
annual fees. The 6.5 percent reduction is based on the changes in the
budget to be recovered from fees, the amount of the budget recovered
for 10 CFR Part 170 fees and other offsetting receipts, and changes in
the number of licensees paying annual fees. Table I shows the total
budget and fee amounts for FY 1995 and FY 1996.
Table I.--Calculation of the Percentage Change to the FY 1995 Annual
Fees
[Dollars in millions]
------------------------------------------------------------------------
FY95 FY96
------------------------------------------------------------------------
Total Budget.......................................... $525.6 $473.3
Less NWF.......................................... -22.0 -11.0
------------------
Total Fee Base........................................ 503.6 462.3
Less Part 170 Fees and Other Receipts............. 141.1 120.5
------------------
Total Annual Fee Amount............................... 362.5 341.8
------------------------------------------------------------------------
As shown in Table I, the total amount to be recovered from annual
fees in FY 1996 is $20.7M ($341.8-$362.5) or 5.7 percent less than the
amount that was to be recovered from annual fees in FY 1995. This
difference is the net change resulting from a reduction in the budget
and a reduction in the expected collection from 10 CFR Part 170 fees
and other receipts. The NRC notes that the reduction in 10 CFR Part 170
fees for FY 1996 results primarily from the fact that NRC had a one-
time collection of five quarters of 10 CFR Part 170 fees in FY 1995 as
a result of changes in its billing practices which permits the NRC to
bill for services shortly after they are rendered.
In addition to changes in the budget and 10 CFR Part 170 fees and
other receipts, the number of licensees to pay fees in FY 1996 changed
compared to FY 1995. Also, the amount of the small entity surcharge
(difference between annual fee and small entity fee) decreased as the
annual fees decreased. The changes in the number of licensees in the
various classes plus the reduction in the small entity surcharge result
in an additional decrease in the annual fee per licensee of 0.8
percent. Thus the total change in the annual fees for FY 1996 compared
to FY 1995 is a decrease of 6.5 percent (5.7 percent plus 0.8 percent).
Second, Footnote 1 of 10 CFR 171.16(d) is amended to provide for a
waiver of annual fees for FY 1996 for those materials licensees, and
holders of certificates, registrations, and approvals who either filed
for termination of their licenses or approvals or filed for possession
only/storage licenses before October 1, 1995, and permanently ceased
licensed activities entirely by September 30, 1995. All other licensees
and approval holders who held a license or approval on October 1, 1995,
are subject to FY 1996 annual fees. This change is made in recognition
of the fact that since the final FY 1995 rule was published in June
1995, some licensees have filed requests for termination of their
licenses or certificates with the NRC. Other licensees have either
called or written to the NRC since the FY 1995 final rule became
effective requesting further clarification and information concerning
the annual fees assessed. The NRC is responding to these requests as
quickly as possible. However, the NRC was unable to respond and take
action on all such requests before the end of the fiscal year on
September 30, 1995. Similar situations existed after the FY 1991-1994
rules were published, and in those cases, the NRC provided an exemption
from the requirement that the annual fee is waived only when a license
is terminated before October 1 of each fiscal year.
Third, beginning in FY 1996, the NRC will assess Sec. 171.16(d)
annual fees based on the anniversary of the date the license was
originally issued for those materials licenses whose annual fees are
less than $100,000. Accordingly, a new paragraph is added to
Sec. 171.19. For example, if the original license was issued on June
17, then the anniversary date of that materials license, for annual fee
purposes is June 1. The licensee will be billed in June of each year
for the annual fees in effect on the anniversary date (the first day of
the month that the original license was issued) of the license. For FY
1996, those affected materials licenses with a license anniversary date
between October 1, 1995, and the effective date of the final FY 1996
fee rule will be billed upon publication of the final rule in the
Federal Register and annually thereafter during the anniversary month
of the license. Those affected materials licenses whose license
anniversary date is on or after the effective date of the final FY 1996
fee rule will be billed during the anniversary month of the license and
annually thereafter based on the annual fee in effect at the time of
billing. The specific license categories of materials licensees
affected by this final change are listed in Sec. 171.19(d) of this
final rule.
Billing certain materials licensees on the anniversary date of the
license will allow the NRC to make the billing process more efficient
by distributing the billing and collection of annual fee invoices over
the entire year. The current practice is to bill over 6,000 materials
licenses simultaneously during the fiscal year. Section 171.19 is
amended to credit quarterly partial annual fee payments for FY 1996
already made by certain licensees in FY 1996 either toward their total
annual fee to be assessed, or to make refunds, if necessary. Materials
licensees who paid a ``flat'' 10 CFR Part 170 renewal fee for renewal
applications filed in FY 1996 will receive a refund for those payments,
as appropriate.
The final amendments to 10 CFR Part 171 do not change the
underlying basis for 10 CFR Part 171; that is, charging a class of
licensees for NRC costs attributable to that class of licensees. The
changes are consistent with the NRC's FY 1995 final rule indicating
that, for the period FY 1996-1999, the expectation is that annual fees
will be adjusted by the percentage change (plus or minus) to the NRC's
budget authority adjusted for NRC offsetting receipts and the number of
licensees paying annual fees.
IV. Section-by-Section Analysis
The following analysis of those sections that will be amended by
this final rule provides additional explanatory information. All
references are to Title 10, Chapter I, U.S. Code of Federal
Regulations.
Part 170
Section 170.12 Payment of Fees
This section is amended to conform to the streamlining changes
being made by the NRC. Section 170.12(a), which describes application
fees, is amended to recognize that the NRC will not issue a new license
or amendment prior to receipt of the prescribed fee. Section 170.12(d),
which describes renewal fees, is amended to recognize that materials
``flat'' renewal fees are eliminated. Section 170.12(g), which
discusses inspection fees, is amended to recognize that materials
``flat'' inspection fees were eliminated in the FY 1995 final rule (60
FR 32218; June 20, 1995).
[[Page 16210]]
Section 170.20 Average Cost Per Professional Staff Hour
This section is amended to establish two professional staff-hour
rates based on FY 1996 budgeted costs--one for the reactor program and
one for the nuclear material and nuclear waste program. Accordingly,
the NRC reactor direct staff-hour rate for FY 1996 for all activities
whose fees are based on full cost under Sec. 170.21 is $128 per hour,
or $223,314 per direct FTE. The NRC nuclear material and nuclear waste
direct staff-hour rate for all materials activities whose fees are
based on full cost under Sec. 170.31 is $120 per hour, or $209,057 per
direct FTE. The rates are based on the FY 1996 direct FTEs and NRC
budgeted costs that are not recovered through the appropriation from
the NWF. The NRC has continued the use of cost center concepts
established in FY 1995 in allocating certain costs to the reactor and
materials programs in order to more closely align budgeted costs with
specific classes of licensees. The method used to determine the two
professional hourly rates is as follows:
1. Direct program FTE levels are identified for both the reactor
program and the nuclear material and waste program.
2. Direct contract support, which is the use of contract or other
services in support of the line organization's direct program, is
excluded from the calculation of the hourly rate because the costs for
direct contract support are charged directly through the various
categories of fees.
3. All other direct program costs (i.e., Salaries and Benefits,
Travel) represent ``in-house'' costs and are to be allocated by
dividing them uniformly by the total number of direct FTEs for the
program. In addition, salaries and benefits plus contracts for general
and administrative support are allocated to each program based on that
program's salaries and benefits. This method results in the following
costs which are included in the hourly rates.
Table II.--FY 1996 Budget Authority To Be Included in Hourly Rates
[Dollars in millions]
------------------------------------------------------------------------
Reactor Materials
program program
------------------------------------------------------------------------
Salary and Benefits:
Program................................. $149.6 $46.3
Allocated Agency Management & Support... 40.9 12.7
------------------------------
Subtotal............................ 190.5 59.0
General and Administrative Support (G&A):
Program Travel and Other Support........ 11.7 3.2
Allocated Agency Management and Support. 69.5 21.5
------------------------------
Subtotal............................ 81.2 24.7
------------------------------
Less offsetting receipts................ .1 .............
------------------------------
Total Budget Included in Hourly Rate 271.6 83.7
Program Direct FTEs..................... 1,216.2 400.5
Rate per Direct FTE..................... 223,314 209,057
Professional Hourly Rate................ 128 120
------------------------------------------------------------------------
Dividing the $271.6 million budget for the reactor program by the
number of reactor program direct FTEs (1216.2) results in a rate for
the reactor program of $223,314 per FTE for FY 1996. Dividing the $83.7
million budget for the nuclear materials and nuclear waste program by
the number of program direct FTEs (400.5) results in a rate of $209,057
per FTE for FY 1996. The Direct FTE Hourly Rate for the reactor program
is $128 per hour (rounded to the nearest whole dollar). This rate is
calculated by dividing the cost per direct FTE ($223,314) by the number
of productive hours in one year (1744 hours) as indicated in OMB
Circular A-76, ``Performance of Commercial Activities.'' The Direct FTE
Hourly Rate for the materials program is $120 per hour (rounded to the
nearest whole dollar). This rate is calculated by dividing the cost per
direct FTE ($209,057) by the number of productive hours in one year
(1744 hours). The method used to calculate the FY 1996 hourly rate is
the same as the method used in the FY 1995 rule. The FY 1996 rate is
slightly higher than the FY 1995 rate due in part to the Federal pay
raise given to all Federal employees in January 1995.
Section 170.21 Schedule of Fees for Production and Utilization
Facilities, Review of Standard Reference Design Approvals, Special
Projects, Inspections and Import and Export Licenses
The NRC is revising the licensing and inspection fees in this
section, which are based on full-cost recovery, to reflect FY 1996
budgeted costs and to recover costs incurred by the NRC in providing
licensing and inspection services to identifiable recipients. The fees
assessed for services provided under the schedule are based on the
professional hourly rate, as shown in Sec. 170.20, for the reactor
program and any direct program support (contractual services) costs
expended by the NRC. Any professional hours expended on or after the
effective date of the final rule will be assessed at the FY 1996 hourly
rate for the reactor program, as shown in Sec. 170.20. Although the
average amounts of time needed to review import and export licensing
applications have not changed, the fees in Sec. 170.21, facility
Category K, have increased from FY 1995 as a result of the increase in
the hourly rate.
For those applications currently on file and pending completion,
footnote 2 of Sec. 170.21 is revised to provide that professional hours
expended up to the effective date of the final rule will be assessed at
the professional rates in effect at the time the service was rendered.
For topical report applications currently on file that are still
pending completion of the review, and for which review costs have
reached the applicable fee ceiling established by the July 2, 1990,
rule, the costs incurred after any applicable ceiling was reached
through August 8, 1991, will not be billed to the applicant. Any
professional
[[Page 16211]]
hours expended for the review of topical report applications,
amendments, revisions, or supplements to a topical report on or after
August 9, 1991, are assessed at the applicable rate established by
Sec. 170.20.
Section 170.31 Schedule of Fees for Materials Licenses and Other
Regulatory Services, Including Inspections and Import and Export
Licenses
The licensing and inspection fees in this section, which are based
on full-cost recovery, are modified to recover the FY 1996 costs
incurred by the NRC in providing licensing and inspection services to
identifiable recipients. The fees assessed for services provided under
the schedule are based on both the professional hourly rate as shown in
Sec. 170.20 for the materials program and any direct program support
(contractual services) costs expended by the NRC. Licensing fees based
on the average time to review an application (``flat'' fees) are
adjusted to reflect the increase in the professional hourly rate from
$116 per hour in FY 1995 to $120 per hour in FY 1996. The ``flat''
renewal fees for certain materials licenses in Sec. 170.31 are
eliminated and combined with the materials annual fees in
Sec. 171.16(d).
The amounts of the licensing ``flat'' fees were rounded off so that
the amounts would be de minimis and the resulting flat fee would be
convenient to the user. Fees that are greater than $1,000 are rounded
to the nearest $100. Fees under $1,000 are rounded to the nearest $10.
Fee Category 15, covering the fees for export and import licenses,
is amended to include clarifying language that export and import of
materials includes the export and import of radioactive waste. The NRC
amended 10 CFR Part 110 on July 21, 1995 (60 FR 37556), to require
specific licenses for the export and import of radioactive waste. The
final rule became effective August 21, 1995.
The licensing ``flat'' fees are applicable to fee categories 1.C
and 1.D; 2.B and 2.C; 3.A through 3.P; 4.B through 9.D, 10.B, 15.A
through 15.E and 16. Applications filed on or after the effective date
of the final rule are subject to the revised fees in this final rule.
Although the average amounts of time needed to review licensing
applications have not changed, the ``flat'' fees in Sec. 170.31 have
increased from FY 1995 as a result of the increase in the hourly rate.
For those licensing, inspection, and review fees that are based on
full-cost recovery (cost for professional staff hours plus any
contractual services), the materials program hourly rate of $120, as
shown in Sec. 170.20, applies to those professional staff hours
expended on or after the effective date of the final rule.
Part 171
Section 171.15 Annual Fee: Reactor Operating Licenses
The annual fees in this section are revised as described below.
Paragraph (d) is removed and reserved and paragraphs (a), (b), (c)(1),
(c)(2) and (e) are revised to comply with the requirement of OBRA-90
that the NRC recover approximately 100 percent of its budget for FY
1996.
Paragraph (b) is revised in its entirety to establish the FY 1996
annual fee for operating power reactors and to change fiscal year
references from FY 1995 to FY 1996. The fees are established by
reducing FY 1995 annual fees (prior to rounding) by 6.5 percent. The
activities comprising the base FY 1995 annual fee and the FY 1995
additional charge (surcharge) are listed in paragraphs (b) and (c) and
continue to be shown for convenience purposes. Paragraphs (c)(1) is
revised in its entirety and (c)(2) is removed and reserved.
With respect to Big Rock Point, a smaller, older reactor, the NRC
hereby grants a partial exemption from the FY 1996 annual fees similar
to FY 1995 based on a request filed with the NRC in accordance with
Sec. 171.11.
Each operating power reactor, except Big Rock Point, will pay an
annual fee of $2,746,000 in FY 1996.
Paragraph (d) is removed and reserved.
Paragraph (e) is revised to show the amount of the FY 1996 annual
fee for nonpower (test and research) reactors. In FY 1996, the annual
fee of $52,800 is 6.5 percent below the FY 1995 level. The Energy
Policy Act of 1992 established an exemption for certain Federally-owned
research reactors that are used primarily for educational training and
academic research purposes, where the design of the reactor satisfies
certain technical specifications set forth in the legislation.
Consistent with this legislative requirement, the NRC granted an
exemption from annual fees for FY 1992 and FY 1993 to the Veterans
Administration Medical Center in Omaha, Nebraska, the U.S. Geological
Survey for its reactor in Denver, Colorado, and the Armed Forces
Radiobiological Institute in Bethesda, Maryland, for its research
reactor. This exemption was initially codified in the July 20, 1993 (58
FR 38695) final fee rule at Sec. 171.11(a) and more recently in the
March 17, 1994 (59 FR 12543) final rule at Sec. 171.11(a)(2). The NRC
amended Sec. 171.11(a)(2) on July 20, 1994 (59 FR 36895) to exempt from
annual fees the research reactor owned by the Rhode Island Atomic
Energy Commission. The NRC will continue to grant exemptions from the
annual fee to Federally-owned and State-owned research and test
reactors that meet the exemption criteria specified in Sec. 171.11.
Section 171.16 Annual Fees: Materials Licensees, Holders of
Certificates of Compliance, Holders of Sealed Source and Device
Registrations, Holders of Quality Assurance Program Approvals, and
Government Agencies Licensed by the NRC
Section 171.16(c) covers the fees assessed for those licensees that
can qualify as small entities under NRC size standards. The NRC will
continue to assess two fees for licensees that qualify as small
entities under the NRC's size standards. In general, licensees with
gross annual receipts of $350,000 to $5 million pay a maximum fee of
$1,800. A second or lower-tier small entity fee of $400 is in place for
small entities with gross annual receipts of less than $350,000 and
small governmental jurisdictions with a population of less than 20,000.
No change in the amount of the small entity fees is being made because
the small entity fees are not based on the budget but are established
at a level to reduce the impact of fees on small entities. The small
entity fees are shown in this final rule for convenience.
Section 171.16(d) is revised to establish the FY 1996 annual fees
for materials licensees, including Government agencies, licensed by the
NRC. These fees were determined by reducing the FY 1995 annual fees
(prior to rounding) by 6.5 percent.
For the first time, the NRC is combining the ``flat'' material
renewal fees in 10 CFR Part 170 with the annual fees in 10 CFR Part
171. As described in the Federal Register on September 8, 1995 (60 FR
46784), recent NRC internal reviews and regulatory impact surveys of
materials licensees have highlighted areas in which the current
materials licensing process can be improved. The NRC has completed the
preliminary phases of its Business Process Reengineering (BPR)
initiative to redesign the process of licensing medical, academic, and
industrial users of byproduct materials as well as with regard to some
small scope users of source and special nuclear materials. The NRC has
extended, by rulemaking, certain specific materials licenses by five
years from the current expiration dates of those licenses. Resources
that would have otherwise been used to
[[Page 16212]]
renew these licenses would be devoted to the BPR project. The NRC is
also examining whether to permanently change the license duration for
materials licenses. The NRC estimates that approximately 80 percent of
its approximately 6,500 materials licenses will be extended by the
final rulemaking published in the Federal Register January 20, 1996 (60
FR 1109). Consistent with this change in license renewals, the NRC is,
for fee purposes, combining the materials ``flat'' renewal fees in 10
CFR Part 170 with the annual fees in 10 CFR Part 171.
This action also recognizes that the NRC's ``regulatory service''
provided to licensees, as referred to in OBRA-90, is comprised of the
total regulatory activities that the NRC determines are needed to
regulate a class of licensees. These regulatory activities include not
only ``flat'' fee inspections but also research, rulemaking, orders,
enforcement actions, responses to allegations, incident investigations,
and other activities necessary to regulate classes of licensees. In
addition to being consistent with the regulatory service concept of
OBRA-90, the NRC believes that materials licensees' ``flat'' renewal
fees can be combined with their annual fees without creating any
significant questions of fairness. This is because the concept of the
annual fee, including the renewal fee, has, in effect, already been
implemented for most materials licensees. First, materials licensees
currently pay a ``flat fee'' per renewal based on the average cost of a
renewal for their fee category, and second, the renewal term of five
years is identical for most materials licensees. Thus, licensees in the
same materials license fee category already pay essentially the same
average annual cost for renewals. Further, the average cost will
decrease to a relatively small amount as a result of the five-year
extension and potential change in license duration. Therefore,
combining renewal and annual fees results in essentially the same
average cost per license over time. This approach will provide
materials licensees with simpler and more predictable NRC fee charges
as there will be no additional fees paid for periodic renewals. Because
certain materials FY 1996 annual fees will include renewals, those
materials licensees who paid a ``flat'' 10 CFR Part 170 renewal fee for
renewal applications filed in FY 1996 will be issued a refund, as
appropriate.
Beginning in FY 1996, the NRC will also bill annual fees for most
materials licenses on the anniversary date of the license (licensees
whose annual fees are $100,000 or more will continue to be assessed
quarterly). The annual fee assessed will be the fee in effect on the
license anniversary date. This final rule will apply to those materials
licenses in the following fee categories: 1.C. and 1.D.; 2.A.(2)
through 2.C.; 3.A. through 3.P.; 4.A. through 9.D., and 10.B. Billing
most materials licenses on the anniversary date of the license will
allow the NRC to improve the efficiency of its billing process; under
this final rule an average of approximately 500 annual fee invoices
will be sent to materials licensees each month. The current practice of
billing over 6,000 materials licensees simultaneously each fiscal year
is eliminated. For annual fee purposes, the anniversary date of the
materials license is considered to be the first day of the month in
which the original materials license was issued. For example, if the
original materials license was issued on June 17 then, for annual fee
purposes, the anniversary date of the materials license is June 1 and
the licensee will be billed in June of each year for the annual fee in
effect on June 1. This final change to the billing system means that
during the transition period of FY 1996 affected materials licensees
with an anniversary date falling between October 1, 1995, and the
effective date of the FY 1996 fee rule will receive a bill payable on
the effective date of the FY 1996 final rule. Affected materials
licensees with license anniversary dates falling on or after the
effective date of the FY 1996 final rule will be billed during their
anniversary month of their license. Under this final rule, some
materials licensees will unavoidably receive two annual fee bills
during the 12 month transition period. For example, a materials
licensee who paid its FY 1996 annual fee bill in May 1996, the planned
effective date of the FY 1996 fee rule, will receive a bill six months
later in November 1996 (FY 1997) if November is the anniversary month
of that materials license. In this example, the licensee will pay the
same annual fee in FY 1997 (November) as he paid in FY 1996 (May).
Materials licensees will continue to pay fees at the FY 1996 rate in FY
1997 until such time as the FY 1997 final fee rule becomes effective.
Each bill would be for a different fiscal year, therefore, no double
billing would occur.
The NRC believes that the efficiencies gained by billing certain
materials annual fees throughout the year as well as having materials
licensees know exactly when they will be billed each year for the
annual fee outweigh the inconveniences that may be caused during the
transition period. New licenses issued during FY 1996 will receive a
prorated annual fee in accordance with the current proration provision
of Sec. 171.17. For example, those new materials licenses issued during
the period October 1 through March 31 of the FY will be assessed one-
half the annual fee for FY 1996. New materials licenses issued on or
after April 1, 1996, will not be assessed an annual fee for FY 1996.
Thereafter, the full annual fee is due and payable each subsequent
fiscal year on the anniversary date of the license. Beginning with the
effective date of this FY 1996 final rule, affected licensees will be
billed and will pay the annual fee in effect on the anniversary date of
the license. Affected licensees who are not sure of the anniversary
date of their materials license should check the original issue date of
the license.
A materials licensee may pay a reduced annual fee if the licensee
qualifies as a small entity under the NRC's size standards and
certifies that it is a small entity using NRC Form 526.
The amount or range of the FY 1996 annual fees for all materials
licensees is summarized as follows:
Materials Licenses--Annual Fee Ranges
------------------------------------------------------------------------
Category of license Annual fees
------------------------------------------------------------------------
Part 70--High enriched fuel facility. $2,403,000.
Part 70--Low enriched fuel facility.. 1,179,000.
Part 40-- UF6 conversion facility.... 597,800.
Part 40--Uranium recovery facilities. 20,600 to 57,000.
Part 30--Byproduct Material Licenses. 450 to 21,700.\1\
Part 71--Transportation of 950 to 72,700.
Radioactive Material.
Part 72--Independent Storage of Spent 260,900.
Nuclear Fuel.
------------------------------------------------------------------------
\1\ Excludes the annual fee for a few military ``master'' materials
licenses of broad-scope issued to Government agencies, which is
$388,400.
Section 171.16(e) is revi
FR Doc. 96-9026 Revision of Fee Schedules; 100% Fee Recovery, FY 1996
sed in its entirety to indicate the
activities that were a part of the additional charge (surcharge)
included in the FY 1995 annual fees. These activities are listed and
continue to be shown for convenience.
Footnote 1 of 10 CFR 171.16(d) is amended to provide a waiver of
the annual fees for materials licensees, and holders of certificates,
registrations, and approvals, who either filed for termination of their
licenses or approvals or filed for possession only/
[[Page 16213]]
storage only licenses before October 1, 1995, and permanently ceased
licensed activities entirely by September 30, 1995. All other licensees
and approval holders who held a license or approval on October 1, 1995,
are subject to the FY 1996 annual fees.
Section 171.19 Payment
Paragraph (b) is revised to give credit for partial payments made
by certain licensees in FY 1996 toward their FY 1996 annual fees. The
NRC anticipates that the first, second, and third quarterly payments
for FY 1996 will have been made by operating power reactor licensees
and some large materials licensees before this final rule is effective.
Therefore, the NRC will credit payments received for those quarterly
annual fee assessments toward the total annual fee to be assessed. The
NRC will adjust the fourth quarterly bill to recover the full amount of
the revised annual fee or to make refunds, as necessary. The NRC also
expects that certain materials licensees will have paid renewal fees
for renewal applications that were filed in FY 1996, whereas this final
rule includes the renewals in the annual fee. The NRC will refund these
renewal fee payments, as appropriate. Payment of the annual fee is due
on the date of the invoice and interest accrues from the invoice date.
However, interest will be waived if payment is received within 30 days
from the invoice date.
Paragraph (c) is revised to update fiscal year references and to
delete the references concerning payment requirements for those
licensees whose annual fees are less than $100,000.
A new paragraph (d) is added to cover those licensees whose annual
fees are less than $100,000 and who will be billed on the anniversary
date of their license beginning in FY 1996.
During the past five years many licensees have indicated that,
although they held a valid NRC license authorizing the possession and
use of special nuclear, source, or byproduct material, they were either
not using the material to conduct operations or had disposed of the
material and no longer needed the license. In response, the NRC has
consistently stated that annual fees are assessed based on whether a
licensee holds a valid NRC license that authorizes possession and use
of radioactive material. Whether or not a licensee is actually
conducting operations using the material is a matter of licensee
discretion. The NRC cannot control whether a licensee elects to possess
and use radioactive material once it receives a license from the NRC.
Therefore, the NRC reemphasizes that the annual fee will be assessed
based on whether a licensee holds a valid NRC license that authorizes
possession and use of radioactive material. To remove any uncertainty,
the NRC issued minor clarifying amendments to 10 CFR 171.16, footnotes
1 and 7 on July 20, 1993 (58 FR 38700).
The NRC reinstated the exemption from 10 CFR Part 171 annual fees
for nonprofit educational institutions on April 18, 1994 (59 FR 12539;
March 17, 1994). In that final rule, the NRC indicated that although
nonprofit research institutions were not exempt from annual fees, such
institutions were free to file an exemption request based on the
``public good'' concept if they felt they could qualify. Several
nonprofit research institutions have since filed and been granted an
exemption from the annual fees on that basis. In addition, some Federal
agencies who hold materials licenses have filed for exemption from
annual fees based on the public good concept as well. The requests from
Federal agencies to receive public good exemptions have been denied by
the NRC. The NRC did not intend to extend public good exemptions to
Federal agencies.
V. Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental impact statement nor an environmental impact
assessment has been prepared for the final regulation. By its very
nature, this regulatory action does not affect the environment, and
therefore, no environmental justice issues are raised.
VI. Paperwork Reduction Act Statement
This final rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
VII. Regulatory Analysis
With respect to 10 CFR Part 170, this final rule was developed
pursuant to Title V of the Independent Offices Appropriation Act of
1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee guidelines. When
developing these guidelines the Commission took into account guidance
provided by the U.S. Supreme Court on March 4, 1974, in its decision of
National Cable Television Association, Inc. v. United States, 415 U.S.
36 (1974) and Federal Power Commission v. New England Power Company,
415 U.S. 345 (1974). In these decisions, the Court held that the IOAA
authorizes an agency to charge fees for special benefits rendered to
identifiable persons measured by the ``value to the recipient'' of the
agency service. The meaning of the IOAA was further clarified on
December 16, 1976, by four decisions of the U.S. Court of Appeals for
the District of Columbia: National Cable Television Association v.
Federal Communications Commission, 554 F.2d 1094 (D.C. Cir. 1976);
National Association of Broadcasters v. Federal Communications
Commission, 554 F.2d 1118 (D.C. Cir. 1976); Electronic Industries
Association v. Federal Communications Commission, 554 F.2d 1109 (D.C.
Cir. 1976) and Capital Cities Communication, Inc. v. Federal
Communications Commission, 554 F.2d 1135 (D.C. Cir. 1976). These
decisions of the Courts enabled the Commission to develop fee
guidelines that are still used for cost recovery and fee development
purposes.
The Commission's fee guidelines were upheld on August 24, 1979, by
the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power
and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th
Cir. 1979), cert. denied, 444 U.S. 1102 (1980). The Court held that--
(1) The NRC had the authority to recover the full cost of providing
services to identifiable beneficiaries;
(2) The NRC could properly assess a fee for the costs of providing
routine inspections necessary to ensure a licensee's compliance with
the Atomic Energy Act and with applicable regulations;
(3) The NRC could charge for costs incurred in conducting
environmental reviews required by NEPA;
(4) The NRC properly included the costs of uncontested hearings and
of administrative and technical support services in the fee schedule;
(5) The NRC could assess a fee for renewing a license to operate a
low-level radioactive waste burial site; and
(6) The NRC's fees were not arbitrary or capricious.
With respect to 10 CFR Part 171, on November 5, 1990, the Congress
passed Public Law 101-508, the Omnibus Budget Reconciliation Act of
1990 (OBRA-90) which required that for FYs 1991 through 1995,
approximately 100 percent of the NRC budget authority be recovered
through the assessment of fees. OBRA-90 was amended in 1993 to extend
the 100 percent fee recovery requirement for NRC through FY 1998. To
accomplish this statutory requirement, the NRC, in accordance with
Sec. 171.13, is publishing the final
[[Page 16214]]
amount of the FY 1996 annual fees for operating reactor licensees, fuel
cycle licensees, materials licensees, and holders of Certificates of
Compliance, registrations of sealed source and devices and QA program
approvals, and Government agencies. OBRA-90 and the Conference
Committee Report specifically state that--
(1) The annual fees be based on the Commission's FY 1996 budget of
$473.3 million less the amounts collected from Part 170 fees and the
funds directly appropriated from the NWF to cover the NRC's high level
waste program;
(2) The annual fees shall, to the maximum extent practicable, have
a reasonable relationship to the cost of regulatory services provided
by the Commission; and
(3) The annual fees be assessed to those licensees the Commission,
in its discretion, determines can fairly, equitably, and practicably
contribute to their payment.
10 CFR Part 171, which established annual fees for operating power
reactors effective October 20, 1986 (51 FR 33224; September 18, 1986),
was challenged and upheld in its entirety in Florida Power and Light
Company v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied,
490 U.S. 1045 (1989).
The NRC's FY 1991 annual fee rule was largely upheld by the D.C.
Circuit Court of Appeals in Allied Signal v. NRC, 988 F.2d 146 (D.C.
Cir. 1993).
VIII. Regulatory Flexibility Analysis
The NRC is required by the Omnibus Budget Reconciliation Act of
1990 to recover approximately 100 percent of its budget authority
through the assessment of user fees. OBRA-90 further requires that the
NRC establish a schedule of charges that fairly and equitably allocates
the aggregate amount of these charges among licensees.
This final rule establishes the schedules of fees that are
necessary to implement the Congressional mandate for FY 1996. The final
rule results in a decrease in the annual fees charged to all licensees,
and holders of certificates, registrations, and approvals. The
Regulatory Flexibility Analysis, prepared in accordance with 5 U.S.C.
604, is included as Appendix A to this final rule.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and that a backfit analysis is not
required for this final rule. The backfit analysis is not required
because these final amendments do not require the modification of or
additions to systems, structures, components, or the design of a
facility or the design approval or manufacturing license for a facility
or the procedures or organization required to design, construct or
operate a facility.
List of Subjects
10 CFR Part 170
Byproduct material, Import and export licenses, Intergovernmental
relations, Non-payment penalties, Nuclear materials, Nuclear power
plants and reactors, Source material, Special nuclear material.
10 CFR Part 171
Annual charges, Byproduct material, Holders of certificates,
registrations, approvals, Intergovernmental relations, Non-payment
penalties, Nuclear materials, Nuclear power plants and reactors, Source
material, Special nuclear material.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, and 5 U.S.C. 552 and 553,
the NRC is adopting the following amendments to 10 CFR Parts 170 and
171.
PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT
LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT
OF 1954, AS AMENDED
1. The authority citation for Part 170 continues to read as
follows:
Authority: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-4381, 88
Stat. 1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L. 101-576,
104 Stat. 2842, (31 U.S.C. 901).
2. In Sec. 170.12, paragraph (d)(1) is removed and reserved and
paragraphs (a) and (g) are revised to read as follows:
Sec. 170.12 Payment of fees.
(a) Application fees. Each application for which a fee is
prescribed shall be accompanied by a remittance in the full amount of
the fee. The NRC will not issue a new license or amendment prior to the
receipt of the prescribed fee. All application fees will be charged
irrespective of the Commission's disposition of the application or a
withdrawal of the application.
* * * * *
(d) * * *
(1) [Reserved].
* * * * *
(g) Inspection fees. Fees for all inspections subject to full cost
recovery will be assessed on a per inspection basis for completed
inspections and are payable, on a quarterly basis, upon notification by
the Commission. Inspection costs include preparation time, time on
site, and documentation time and any associated contractual service
costs, but exclude the time involved in the processing and issuance of
a notice of violation or civil penalty.
* * * * *
3. Section 170.20 is revised to read as follows:
Sec. 170.20 Average cost per professional staff-hour.
Fees for permits, licenses, amendments, renewals, special projects,
Part 55 requalification and replacement examinations and tests, other
required reviews, approvals, and inspections under Secs. 170.21 and
170.31 that are based upon the full costs for the review or inspection
will be calculated using the following applicable professional staff-
hour rates:
Reactor Program (Sec. 170.21 Activities). $128 per hour.
Nuclear Materials and Nuclear Waste $120 per hour.
Program (Sec. 170.31 Activities).
4. In Sec. 170.21, the introductory text, Category K, and footnotes
1 and 2 to the table are revised to read as follows:
Sec. 170.21 Schedule of fees for production and utilization
facilities, review of standard referenced design approvals, special
projects, inspections and import and export licenses
Applicants for construction permits, manufacturing licenses,
operating licenses, import and export licenses, approvals of facility
standard reference designs, requalification and replacement
examinations for reactor operators, and special projects and holders of
construction permits, licenses, and other approvals shall pay fees for
the following categories of services.
[[Page 16215]]
Schedule of Facility Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Facility categories and type of fees Fees \1\ \2\
------------------------------------------------------------------------
* * * *
* * *
K. Import and export licenses:
Licenses for the import and export only of
production and utilization facilities or
the export only of components for
production and utilization facilities
issued pursuant to 10 CFR Part 110:
1. Application for import or export of
reactors and other facilities and
exports of components which must be
reviewed by the Commissioners and the
Executive Branch, for example, actions
under 10 CFR 110.40(b):
Application-new license............ $7,800
Amendment.......................... $7,800
2. Application for export of reactor
and other components requiring
Executive Branch review only, for
example, those actions under 10 CFR
110.41(a)(1)-(8):
Application-new license............ $4,800
Amendment.......................... $4,800
3. Application for export of components
requiring foreign government
assurances only:
Application-new license............ $3,000
Amendment.......................... $3,000
4. Application for export of facility
components and equipment not requiring
Commissioner review, Executive Branch
review, or foreign government
assurances:
Application-new license............ $1,200
Amendment.......................... $1,200
5. Minor amendment of any export or
import license to extend the
expiration date, change domestic
information, or make other revisions
which do not require in-depth analysis
or review:
Amendment.......................... $120
------------------------------------------------------------------------
\1\ Fees will not be charged for orders issued by the Commission
pursuant to Sec. 2.202 of this chapter or for amendments resulting
specifically from the requirements of these types of Commission
orders. Fees will be charged for approvals issued under a specific
exemption provision of the Commission's regulations under Title 10 of
the Code of Federal Regulations (e.g., Secs. 50.12, 73.5) and any
other sections now or hereafter in effect regardless of whether the
approval is in the form of a license amendment, letter of approval,
safety evaluation report, or other form. Fees for licenses in this
schedule that are initially issued for less than full power are based
on review through the issuance of a full power license (generally full
power is considered 100 percent of the facility's full rated power).
Thus, if a licensee received a low power license or a temporary
license for less than full power and subsequently receives full power
authority (by way of license amendment or otherwise), the total costs
for the license will be determined through that period when authority
is granted for full power operation. If a situation arises in which
the Commission determines that full operating power for a particular
facility should be less than 100 percent of full rated power, the
total costs for the license will be at that determined lower operating
power level and not at the 100 percent capacity.
\2\ Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
the final rule will be determined at the professional rates in effect
at the time the service was provided. For those applications currently
on file for which review costs have reached an applicable fee ceiling
established by the June 20, 1984, and July 2, 1990, rules but are
still pending completion of the review, the cost incurred after any
applicable ceiling was reached through January 29, 1989, will not be
billed to the applicant. Any professional staff-hours expended above
those ceilings on or after January 30, 1989, will be assessed at the
applicable rates established by Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for any topical report, amendment, revision or supplement to a
topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20. In no
event will the total review costs be less than twice the hourly rate
shown in Sec. 170.20.
* * * * *
5. Section 170.31 is revised to read as follows:
Sec. 170.31 Schedule of fees for materials licenses and other
regulatory services, including inspections, and import and export
licenses.
Applicants for materials licenses, import and export licenses, and
other regulatory services and holders of materials licenses, or import
and export licenses shall pay fees for the following categories of
services. This schedule includes fees for health and safety and
safeguards inspections where applicable.
Schedule of Materials Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Category of materials licenses and type of fees
\1\ Fee 2, 3
------------------------------------------------------------------------
1. Special nuclear material:
A. Licenses for possession and use of 200
grams or more of plutonium in unsealed
form or 350 grams or more of contained U-
235 in unsealed form or 200 grams or more
of U-233 in unsealed form. This includes
applications to terminate licenses as well
as licenses authorizing possession only:
License, Renewal, Amendment............ Full Cost.
Inspections............................ Full Cost.
B. Licenses for receipt and storage of
spent fuel at an independent spent fuel
storage installation (ISFSI):
License, Renewal, Amendment............ Full Cost.
Inspections............................ Full Cost.
[[Page 16216]]
C. Licenses for possession and use of
special nuclear material in sealed sources
contained in devices used in industrial
measuring systems, including x-ray
fluorescence analyzers: \4\
Application--New license............... $550.
Amendment.............................. $300.
D. All other special nuclear material
licenses, except licenses authorizing
special nuclear material in unsealed form
in combination that would constitute a
critical quantity, as defined in Sec.
150.11 of this chapter, for which the
licensee shall pay the same fees as those
for Category 1A: \4\
Application--New license............... $600.
Amendment.............................. $290.
E. Licenses for construction and operation
of a uranium enrichment facility:
Application............................ $125,000.
License, Renewal, Amendment............ Full Cost.
Inspections............................ Full Cost.
2. Source material:
A. (1) Licenses for possession and use of
source material in recovery operations
such as milling, in-situ leaching, heap-
leaching, refining uranium mill
concentrates to uranium hexafluoride, ore
buying stations, ion exchange facilities
and in processing of ores containing
source material for extraction of metals
other than uranium or thorium, including
licenses authorizing the possession of
byproduct waste material (tailings) from
source material recovery operations, as
well as licenses authorizing the
possession and maintenance of a facility
in a standby mode:
License, Renewal, Amendment............ Full Cost.
Inspections............................ Full Cost.
(2) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from
other persons for possession and disposal
except those licenses subject to fees in
Category 2.A. (1):
License, renewal, amendment............ Full Cost.
Inspections............................ Full Cost.
(3) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from
other persons for possession and disposal
incidental to the disposal of the uranium
waste tailings generated by the licensee's
milling operations, except those licenses
subject to the fees in Category 2.A. (1):
License, renewal, amendment............ Full Cost.
Inspections............................ Full Cost.
B. Licenses which authorize the possession,
use and/or installation of source material
for shielding:
Application--New license............... $160.
Amendment.............................. $240.
C. All other source material licenses:
Application--New license............... $2,800.
Amendment.............................. $420.
3. Byproduct material:
A. Licenses of broad scope for possession
and use of byproduct material issued
pursuant to Parts 30 and 33 of this
chapter for processing or manufacturing of
items containing byproduct material for
commercial distribution:
Application--New license............... $3,000.
Amendment.............................. $550.
B. Other licenses for possession and use of
byproduct material issued pursuant to Part
30 of this chapter for processing or
manufacturing of items containing
byproduct material for commercial
distribution:
Application--New license............... $1,200.
Amendment.............................. $580.
C. Licenses issued pursuant to Secs.
32.72, 32.73, and/or 32.74 of this chapter
authorizing the processing or
manufacturing and distribution or
redistribution of radiopharmaceuticals,
generators, reagent kits and/or sources
and devices containing byproduct material:
Application--New license............... $4,100.
Amendment.............................. $520.
D. Licenses and approvals issued pursuant
to Secs. 32.72, 32.73, and/or 32.74 of
this chapter authorizing distribution or
redistribution of radiopharmaceuticals,
generators, reagent kits and/or sources or
devices not involving processing of
byproduct material:
Application--New license............... $1,500.
Amendment.............................. $430.
E. Licenses for possession and use of
byproduct material in sealed sources for
irradiation of materials in which the
source is not removed from its shield
(self-shielded units):
Application--New license............... $1,200.
Amendment.............................. $360.
F. Licenses for possession and use of less
than 10,000 curies of byproduct material
in sealed sources for irradiation of
materials in which the source is exposed
for irradiation purposes. This category
also includes underwater irradiators for
irradiation of materials where the source
is not exposed for irradiation purposes:
Application--New license............... $1,500.
Amendment.............................. $370.
G. Licenses for possession and use of
10,000 curies or more of byproduct
material in sealed sources for irradiation
of materials in which the source is
exposed for irradiation purposes. This
category also includes underwater
irradiators for irradiation of materials
where the source is not exposed for
irradiation purposes:
Application--New license............... $6,000.
Amendment.............................. $780.
[[Page 16217]]
H. Licenses issued pursuant to Subpart A of
Part 32 of this chapter to distribute
items containing byproduct material that
require device review to persons exempt
from the licensing requirements of Part 30
of this chapter, except specific licenses
authorizing redistribution of items that
have been authorized for distribution to
persons exempt from the licensing
requirements of Part 30 of this chapter:
Application--New license............... $2,400.
Amendment.............................. $1,000.
I. Licenses issued pursuant to Subpart A of
Part 32 of this chapter to distribute
items containing byproduct material or
quantities of byproduct material that do
not require device evaluation to persons
exempt from the licensing requirements of
Part 30 of this chapter, except for
specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
exempt from the licensing requirements of
Part 30 of this chapter:
Application--New license............... $4,400.
Amendment.............................. $860.
J. Licenses issued pursuant to Subpart B of
Part 32 of this chapter to distribute
items containing byproduct material that
require sealed source and/or device review
to persons generally licensed under Part
31 of this chapter, except specific
licenses authorizing redistribution of
items that have been authorized for
distribution to persons generally licensed
under Part 31 of this chapter:
Application--New license............... $1,600.
Amendment.............................. $290.
K. Licenses issued pursuant to Subpart B of
Part 32 of this chapter to distribute
items containing byproduct material or
quantities of byproduct material that do
not require sealed source and/or device
review to persons generally licensed under
Part 31 of this chapter, except specific
licenses authorizing redistribution of
items that have been authorized for
distribution to persons generally licensed
under Part 31 of this chapter:
Application--New license............... $1,300.
Amendment.............................. $310.
L. Licenses of broad scope for possession
and use of byproduct material issued
pursuant to Parts 30 and 33 of this
chapter for research and development that
do not authorize commercial distribution:
Application--New license............... $4,300.
Amendment.............................. $660.
M. Other licenses for possession and use of
byproduct material issued pursuant to Part
30 of this chapter for research and
development that do not authorize
commercial distribution:
Application--New license............... $1,500.
Amendment.............................. $610.
N. Licenses that authorize services for
other licensees, except:
(1) Licenses that authorize only
calibration and/or leak testing services
are subject to the fees specified in fee
Category 3P; and
(2) Licenses that authorize waste disposal
services are subject to the fees specified
in fee Categories 4A, 4B, and 4C:
Application--New license............... $1,900.
Amendment.............................. $590.
O. Licenses for possession and use of
byproduct material issued pursuant to Part
34 of this chapter for industrial
radiography operations:
Application--New license............... $3,900.
Amendment.............................. $720.
P. All other specific byproduct material
licenses, except those in Categories 4A
through 9D:
Application--New license............... $550.
Amendment.............................. $300.
4. Waste disposal and processing:
A. Licenses specifically authorizing the
receipt of waste byproduct material,
source material, or special nuclear
material from other persons for the
purpose of contingency storage or
commercial land disposal by the licensee;
or licenses authorizing contingency
storage of low-level radioactive waste at
the site of nuclear power reactors; or
licenses for receipt of waste from other
persons for incineration or other
treatment, packaging of resulting waste
and residues, and transfer of packages to
another person authorized to receive or
dispose of waste material:
License, renewal, amendment............ Full Cost.
Inspections............................ Full Cost.
B. Licenses specifically authorizing the
receipt of waste byproduct material,
source material, or special nuclear
material from other persons for the
purpose of packaging or repackaging the
material. The licensee will dispose of the
material by transfer to another person
authorized to receive or dispose of the
material:
Application--New license............... $3,400.
Amendment.............................. $410.
C. Licenses specifically authorizing the
receipt of prepackaged waste byproduct
material, source material, or special
nuclear material from other persons. The
licensee will dispose of the material by
transfer to another person authorized to
receive or dispose of the material:
Application--New license............... $1,700.
Amendment.............................. $290.
5. Well logging:
A. Licenses for possession and use of
byproduct material, source material, and/
or special nuclear material for well
logging, well surveys, and tracer studies
other than field flooding tracer studies:
Application--New license............... $3,200.
Amendment.............................. $640.
B. Licenses for possession and use of
byproduct material for field flooding
tracer studies:
License, renewal, amendment............ Full Cost.
6. Nuclear laundries:
[[Page 16218]]
A. Licenses for commercial collection and
laundry of items contaminated with
byproduct material, source material, or
special nuclear material:
Application--New license............... $5,100.
Amendment.............................. $790.
7. Human use of byproduct, source, or special
nuclear material:
A. Licenses issued pursuant to Parts 30,
35, 40, and 70 of this chapter for human
use of byproduct material, source
material, or special nuclear material in
sealed sources contained in teletherapy
devices:
Application--New license............... $2,800.
Amendment.............................. $470.
B. Licenses of broad scope issued to
medical institutions or two or more
physicians pursuant to Parts 30, 33, 35,
40, and 70 of this chapter authorizing
research and development, including human
use of byproduct material, except licenses
for byproduct material, source material,
or special nuclear material in sealed
sources contained in teletherapy devices:
Application--New license............... $3,000.
Amendment.............................. $580.
C. Other licenses issued pursuant to Parts
30, 35, 40, and 70 of this chapter for
human use of byproduct material, source
material, and/or special nuclear material,
except licenses for byproduct material,
source material, or special nuclear
material in sealed sources contained in
teletherapy devices:
Application--New license............... $1,400.
Amendment.............................. $440.
8. Civil defense:
A. Licenses for possession and use of
byproduct material, source material, or
special nuclear material for civil defense
activities:
Application--New license............... $760.
Amendment.............................. $350.
9. Device, product, or sealed source safety
evaluation:
A. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material,
except reactor fuel devices, for
commercial distribution:
Application--each device............... $3,400.
Amendment--each device................. $1,200.
B. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a
single applicant, except reactor fuel
devices:
Application--each device............... $1,700.
Amendment--each device................. $600.
C. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
except reactor fuel, for commercial
distribution:
Application--each source............... $720.
Amendment--each source................. $240.
D. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
manufactured in accordance with the unique
specifications of, and for use by, a
single applicant, except reactor fuel:
Application--each source............... $360.
Amendment--each source................. $120.
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and
shipping containers:
Approval, Renewal, Amendment........... Full Cost.
Inspections............................ Full Cost.
B. Evaluation of 10 CFR Part 71 quality
assurance programs:
Application--Approval.................. $340.
Amendment.............................. $250.
Inspections............................ Full Cost.
11. Review of standardized spent fuel
facilities:
Approval, Renewal, Amendment........... Full Cost.
Inspections............................ Full Cost.
12. Special projects:\5\
Approvals and preapplication/licensing Full Cost.
activities.
Inspections............................ Full Cost.
13. A. Spent fuel storage cask Certificate of
Compliance:
Approvals.............................. Full Cost.
Amendments, revisions, and supplements. Full Cost.
Reapproval............................. Full Cost.
B. Inspections related to spent fuel
storage cask:
Certificate of Compliance.............. Full Cost.
C. Inspections related to storage of spent Full Cost.
fuel under Sec. 72.210 of this chapter.
14. Byproduct, source, or special nuclear
material licenses and other approvals
authorizing decommissioning, decontamination,
reclamation, or site restoration activities
pursuant to 10 CFR Parts 30, 40, 70, and 72 of
this chapter:
Approval, Renewal, Amendment........... Full Cost.
Inspections............................ Full Cost.
15. Import and Export licenses:
[[Page 16219]]
Licenses issued pursuant to 10 CFR Part 110
of this chapter for the import and export
only of special nuclear material, source
material, tritium and other byproduct
material, heavy water, or nuclear grade
graphite:
A. Application for export or import of high
enriched uranium and other materials,
including radioactive waste, which must be
reviewed by the Commissioners and the
Executive Branch, for example, those
actions under 10 CFR 110.40(b). This
category includes application for export
or import of radioactive wastes in
multiple forms from multiple generators or
brokers in the exporting country and/or
going to multiple treatment, storage or
disposal facilities in one or more
receiving countries:
Application--new license............... $7,800.
Amendment.............................. $7,800.
B. Application for export or import of
special nuclear material, source material,
tritium and other byproduct material,
heavy water, or nuclear grade graphite,
including radioactive waste, requiring
Executive Branch review but not
Commissioner review. This category
includes application for the export or
import of radioactive waste involving a
single form of waste from a single class
of generator in the exporting country to a
single treatment, storage and/or disposal
facility in the receiving country:
Application--new license............... $4,800.
Amendment.............................. $4,800.
C. Application for export of routine
reloads of low enriched uranium reactor
fuel and exports of source material
requiring only foreign government
assurances under the Atomic Energy Act:
Application--new license............... $3,000.
Amendment.............................. $3,000.
D. Application for export or import of
other materials, including radioactive
waste, not requiring Commissioner review,
Executive Branch review, or foreign
government assurances under the Atomic
Energy Act. This category includes
application for export or import of
radioactive waste where the NRC has
previously authorized the export or import
of the same form of waste to or from the
same or similar parties, requiring only
confirmation from the receiving facility
and licensing authorities that the
shipments may proceed according to
previously agreed understandings and
procedures:
Application--new license............... $1,200.
Amendment.............................. $1,200.
E. Minor amendment of any export or import
license to extend the expiration date,
change domestic information, or make other
revisions which do not require in-depth
analysis, review, or consultations with
other agencies or foreign governments:
Amendment.............................. $120.
16. Reciprocity:
Agreement State licensees who conduct
activities in a non-Agreement State under
the reciprocity provisions of 10 CFR
150.20:
Application (initial filing of Form $1,100.
241).
Revisions.............................. $200.
------------------------------------------------------------------------
\1\ Types of fees--Separate charges, as shown in the schedule, will be
assessed for preapplication consultations and reviews and applications
for new licenses and approvals, issuance of new licenses and
approvals, amendments and certain renewals to existing licenses and
approvals, safety evaluations of sealed sources and devices, and
certain inspections. The following guidelines apply to these charges:
(a) Application fees. Applications for new materials licenses and
approvals; applications to reinstate expired, terminated or inactive
licenses and approvals except those subject to fees assessed at full
costs, and applications filed by Agreement State licensees to register
under the general license provisions of 10 CFR 150.20, must be
accompanied by the prescribed application fee for each category,
except that:
(1) Applications for licenses covering more than one fee category of
special nuclear material or source material must be accompanied by the
prescribed application fee for the highest fee category; and
(2) Applications for licenses under Category 1E must be accompanied by
the prescribed application fee of $125,000.
(b) License/approval/review fees. Fees for applications for new licenses
and approvals and for preapplication consultations and reviews subject
to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 12,
13A, and 14) are due upon notification by the Commission in accordance
with Sec. 170.12(b), (e), and (f).
(c) Renewal/reapproval fees. Applications subject to full cost fees (fee
Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 13A, and 14) are due upon
notification by the Commission in accordance with Sec. 170.12(d).
(d) Amendment/Revision Fees.
(1) Applications for amendments to licenses and approvals and revisions
to reciprocity initial applications, except those subject to fees
assessed at full costs, must be accompanied by the prescribed
amendment/revision fee for each license/revision affected. An
application for an amendment to a license or approval classified in
more than one fee category must be accompanied by the prescribed
amendment fee for the category affected by the amendment unless the
amendment is applicable to two or more fee categories in which case
the amendment fee for the highest fee category would apply. For those
licenses and approvals subject to full costs (fee Categories 1A, 1B,
1E, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14), amendment fees are due upon
notification by the Commission in accordance with Sec. 170.12(c).
(2) An application for amendment to a materials license or approval that
would place the license or approval in a higher fee category or add a
new fee category must be accompanied by the prescribed application fee
for the new category.
(3) An application for amendment to a license or approval that would
reduce the scope of a licensee's program to a lower fee category must
be accompanied by the prescribed amendment fee for the lower fee
category.
(4) Applications to terminate licenses authorizing small materials
programs, when no dismantling or decontamination procedure is
required, are not subject to fees.
(e) Inspection fees. Inspections resulting from investigations conducted
by the Office of Investigations and nonroutine inspections that result
from third-party allegations are not subject to fees. The fees
assessed at full cost will be determined based on the professional
staff time required to conduct the inspection multiplied by the rate
established under Sec. 170.20 plus any applicable contractual support
services costs incurred. Inspection fees are due upon notification by
the Commission in accordance with Sec. 170.12(g).
\2\ Fees will not be charged for orders issued by the Commission
pursuant to 10 CFR 2.202 or for amendments resulting specifically from
the requirements of these types of Commission orders. However, fees
will be charged for approvals issued under a specific exemption
provision of the Commission's regulations under Title 10 of the Code
of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and
any other sections now or hereafter in effect) regardless of whether
the approval is in the form of a license amendment, letter of
approval, safety evaluation report, or other form. In addition to the
fee shown, an applicant may be assessed an additional fee for sealed
source and device evaluations as shown in Categories 9A through 9D.
[[Page 16220]]
\3\ Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For those
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
the final rule will be determined at the professional rates in effect
at the time the service was provided. For applications currently on
file for which review costs have reached an applicable fee ceiling
established by the June 20, 1984, and July 2, 1990, rules, but are
still pending completion of the review, the cost incurred after any
applicable ceiling was reached through January 29, 1989, will not be
billed to the applicant. Any professional staff-hours expended above
those ceilings on or after January 30, 1989, will be assessed at the
applicable rates established by Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for each topical report, amendment, revision, or supplement to
a topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20. The
minimum total review cost is twice the hourly rate shown in Sec.
170.20.
\4\ Licensees paying fees under Categories 1A, 1B, and 1E are not
subject to fees under Categories 1C and 1D for sealed sources
authorized in the same license except in those instances in which an
application deals only with the sealed sources authorized by the
license. Applicants for new licenses that cover both byproduct
material and special nuclear material in sealed sources for use in
gauging devices will pay the appropriate application fee for fee
Category 1C only.
\5\ Fees will not be assessed for requests/reports submitted to the NRC:
(a) In response to a Generic Letter or NRC Bulletin that does not result
in an amendment to the license, does not result in the review of an
alternate method or reanalysis to meet the requirements of the Generic
Letter, or does not involve an unreviewed safety issue;
(b) In response to an NRC request (at the Associate Office Director
level or above) to resolve an identified safety or environmental
issue, or to assist NRC in developing a rule, regulatory guide, policy
statement, generic letter, or bulletin; or
(c) As a means of exchanging information between industry organizations
and the NRC for the purpose of supporting generic regulatory
improvements or efforts.
PART 171--ANNUAL FEES FOR REACTOR OPERATING LICENSES AND FUEL CYCLE
LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES
OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM
APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC
6. The authority citation for Part 171 continues to read as
follows:
Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended
by sec. 5601, Pub. L. 100-203, 101 Stat. 1330, as amended by Sec.
3201, Pub. L. 101-239, 103 Stat. 2106 as amended by sec. 6101, Pub.
L. 101-508, 104 Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 2903, Pub. L. 102-486, 106 Stat.
3125, (42 U.S.C. 2214 note).
7. In Sec. 171.15, paragraph (d) is removed and reserved and
paragraphs (a), (b), (c)(1), (c)(2) and (e) are revised to read as
follows:
Sec. 171.15 Annual Fees: Reactor operating licenses.
(a) Each person licensed to operate a power, test, or research
reactor shall pay the annual fee for each unit for which the person
holds an operating license at any time during the Federal FY in which
the fee is due, except for those test and research reactors exempted in
Sec. 171.11 (a)(1) and (a)(2).
(b) The FY 1996 uniform annual fee for each operating power reactor
which must be collected by September 30, 1996, is $2,746,000. This fee
has been determined by adjusting the FY 1995 annual fee downward by
approximately 6 percent. The FY 1995 annual fee was comprised of a base
annual fee and an additional charge (surcharge). The activities
comprising the base FY 1995 annual fee are as follows:
(1) Power reactor safety and safeguards regulation except licensing
and inspection activities recovered under 10 CFR Part 170 of this
chapter.
(2) Research activities directly related to the regulation of power
reactors.
(3) Generic activities required largely for NRC to regulate power
reactors, e.g., updating Part 50 of this chapter, or operating the
Incident Response Center.
(c) The activities comprising the FY 1995 surcharge are as follows:
(1) Activities not attributable to an existing NRC licensee or
class of licensees; e.g., reviews submitted by other government
agencies (e.g., DOE) that do not result in a license or are not
associated with a license; international cooperative safety program and
international safeguards activities; low-level waste disposal generic
activities; uranium enrichment generic activities; and
(2) Activities not currently assessed under 10 CFR Part 170
licensing and inspection fees based on existing Commission policy,
e.g., reviews and inspections conducted of nonprofit educational
institutions, and costs that would not be collected from small entities
based on Commission policy in accordance with the Regulatory
Flexibility Act.
* * * * *
(d) [Reserved].
(e) The FY 1996 annual fees for licensees authorized to operate a
nonpower (test and research) reactor licensed under Part 50 of this
chapter, except for those reactors exempted from fees under
Sec. 171.11(a), are as follows:
Research reactor.............................................. $52,800
Test reactor.................................................. $52,800
* * * * *
8. In Sec. 171.16, the introductory text of paragraph (c) and
paragraphs (c)(1), (c)(4), (d), and (e) are revised to read as follows:
Sec. 171.16 Annual Fees: Materials Licensees, Holders of Certificates
of Compliance, Holders of Sealed Source and Device Registrations,
Holders of Quality Assurance Program Approvals and Government agencies
licensed by the NRC.
* * * * *
(c) A licensee who is required to pay an annual fee under this
section may qualify as a small entity. If a licensee qualifies as a
small entity and provides the Commission with the proper certification,
the licensee may pay reduced annual fees for FY 1996 as follows:
------------------------------------------------------------------------
Maximum annual
fee per
licensed
category
------------------------------------------------------------------------
Small businesses not engaged in manufacturing and small
not-for-profit organizations (gross annual receipts):
$350,000 to $5 million................................ $1,800
Less than $350,000.................................... 400
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees................................... 1,800
Less than 35 employees................................ 400
Small Governmental jurisdictions (Including publicly
supported educational institutions) (population):
20,000 to 50,000...................................... 1,800
Less than 20,000...................................... 400
Educational institutions that are not State or publicly
supported, and have 500 employees or less.
35 to 500 employees................................... 1,800
Less than 35 employees................................ 400
------------------------------------------------------------------------
(1) A licensee qualifies as a small entity if it meets the size
standards established by the NRC (See 10 CFR 2.810).
* * * * *
(4) For FY 1996, the maximum annual fee a small entity is required
to pay is
[[Page 16221]]
$1,800 for each category applicable to the license(s).
(d) The FY 1996 annual fees for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are shown below. The FY 1996 annual fees, which must be
collected by September 30, 1996, have been determined by adjusting
downward the FY 1995 annual fees by approximately 6 percent. The FY
1995 annual fee was comprised of a base annual fee and an additional
charge (surcharge). The activities comprising the FY 1995 surcharge are
shown in paragraph (e) of this section.
Schedule of Materials Annual Fees and Fees for Government Agencies
Licensed by NRC
[See footnotes at end of table]
------------------------------------------------------------------------
Annual fees 1,
Category of materials licenses 2, 3
------------------------------------------------------------------------
1. Special nuclear material:
A.(1) Licenses for possession and use of U-235 or
plutonium for fuel fabrication activities.
(a) Strategic Special Nuclear Material:
Babcock & Wilcox (SNM-42)................... $2,403,000
Nuclear Fuel Services (SNM-124)............. 2,403,000
(b) Low Enriched Uranium in Dispersable Form
Used for Fabrication of Power Reactor Fuel:
Combustion Engineering (Hematite) (SNM-33).. 1,179,000
General Electric Company (SNM-1097)......... 1,179,000
Siemens Nuclear Power (SNM-1227)............ 1,179,000
Westinghouse Electric Company (SNM-1107).... 1,179,000
(2) All other special nuclear materials licenses not
included in Category 1.A.(1) which are licensed for
fuel cycle activities.
(a) Facilities with limited operations:
B&W Fuel Company (SNM-1168)................. 469,200
(b) All Others:
General Electric (SNM-960).................. 318,600
B. Licenses for receipt and storage of spent fuel at
an independent spent fuel storage installation
(ISFSI)............................................ 260,900
C. Licenses for possession and use of special
nuclear material in sealed sources contained in
devices used in industrial measuring systems,
including x-ray fluorescence analyzers............. 1,200
D. All other special nuclear material licenses,
except licenses authorizing special nuclear
material in unsealed form in combination that would
constitute a critical quantity, as defined in Sec.
150.11 of this chapter, for which the licensee
shall pay the same fees as those for Category
1.A.(2)............................................ 2,800
E. Licenses for the operation of a uranium
enrichment facility................................ \11\ N/A
2. Source material:
A.(1) Licenses for possession and use of source
material for refining uranium mill concentrates to
uranium hexafluoride...............................
FR Doc. 96-9026 Revision of Fee Schedules; 100% Fee Recovery, FY 1996
597,800
(2) Licenses for possession and use of source
material in recovery operations such as
milling, in-situ leaching, heap-leaching, ore
buying stations, ion exchange facilities and in
processing of ores containing source material
for extraction of metals other than uranium or
thorium, including licenses authorizing the
possession of byproduct waste material
(tailings) from source material recovery
operations, as well as licenses authorizing the
possession and maintenance of a facility in a
standby mode.
Class I facilities \4\...................... 57,000
Class II facilities \4\..................... 32,200
Other facilities \4\........................ 20,600
(3) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e.(2) of the Atomic Energy Act, from other
persons for possession and disposal, except
those licenses subject to the fees in Category
2.A.(2) or Category 2.A.(4).................... 41,800
(4) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from other
persons for possession and disposal incidental
to the disposal of the uranium waste tailings
generated by the licensee's milling operations,
except those licenses subject to the fees in
Category 2.A.(2)............................... 7,400
B. Licenses which authorize only the possession, use
and/or installation of source material for
shielding.......................................... 450
C. All other source material licenses............... 8,100
3. Byproduct material:
A. Licenses of broad scope for possession and use of
byproduct material issued pursuant to Parts 30 and
33 of this chapter for processing or manufacturing
of items containing byproduct material for
commercial distribution............................ 15,400
B. Other licenses for possession and use of
byproduct material issued pursuant to Part 30 of
this chapter for processing or manufacturing of
items containing byproduct material for commercial
distribution....................................... 5,200
C. Licenses issued pursuant to Secs. 32.72, 32.73,
and/or 32.74 of this chapter authorizing the
processing or manufacturing and distribution or
redistribution of radiopharmaceuticals, generators,
reagent kits and/or sources and devices containing
byproduct material. This category also includes the
possession and use of source material for shielding
authorized pursuant to Part 40 of this chapter when
included on the same license....................... 10,400
D. Licenses and approvals issued pursuant to Secs.
32.72, 32.73, and/or 32.74 of this chapter
authorizing distribution or redistribution of
radiopharmaceuticals, generators, reagent kits and/
or sources or devices not involving processing of
byproduct material. This category also includes the
possession and use of source material for shielding
authorized pursuant to Part 40 of this chapter when
included on the same license....................... 4,100
E. Licenses for possession and use of byproduct
material in sealed sources for irradiation of
materials in which the source is not removed from
its shield (self-shielded units)................... 2,900
F. Licenses for possession and use of less than
10,000 curies of byproduct material in sealed
sources for irradiation of materials in which the
source is exposed for irradiation purposes. This
category also includes underwater irradiators for
irradiation of materials in which the source is not
exposed for irradiation purposes................... 3,500
G. Licenses for possession and use of 10,000 curies
or more of byproduct material in sealed sources for
irradiation of materials in which the source is
exposed for irradiation purposes. This category
also includes underwater irradiators for
irradiation of materials in which the source is not
exposed for irradiation purposes................... 18,100
[[Page 16222]]
H. Licenses issued pursuant to Subpart A of Part 32
of this chapter to distribute items containing
byproduct material that require device review to
persons exempt from the licensing requirements of
Part 30 of this chapter, except specific licenses
authorizing redistribution of items that have been
authorized for distribution to persons exempt from
the licensing requirements of Part 30 of this
chapter............................................ 4,600
I. Licenses issued pursuant to Subpart A of Part 32
of this chapter to distribute items containing
byproduct material or quantities of byproduct
material that do not require device evaluation to
persons exempt from the licensing requirements of
Part 30 of this chapter, except for specific
licenses authorizing redistribution of items that
have been authorized for distribution to persons
exempt from the licensing requirements of Part 30
of this chapter.................................... 8,200
J. Licenses issued pursuant to Subpart B of Part 32
of this chapter to distribute items containing
byproduct material that require sealed source and/
or device review to persons generally licensed
under Part 31 of this chapter, except specific
licenses authorizing redistribution of items that
have been authorized for distribution to persons
generally licensed under Part 31 of this chapter... 3,500
K. Licenses issued pursuant to Subpart B of Part 31
of this chapter to distribute items containing
byproduct material or quantities of byproduct
material that do not require sealed source and/or
device review to persons generally licensed under
Part 31 of this chapter, except specific licenses
authorizing redistribution of items that have been
authorized for distribution to persons generally
licensed under Part 31 of this chapter............. 3,000
L. Licenses of broad scope for possession and use of
byproduct material issued pursuant to Parts 30 and
33 of this chapter for research and development
that do not authorize commercial distribution...... 11,400
M. Other licenses for possession and use of
byproduct material issued pursuant to Part 30 of
this chapter for research and development that do
not authorize commercial distribution.............. 5,100
N. Licenses that authorize services for other
licensees, except:
(1) Licenses that authorize only calibration and/
or leak testing services are subject to the
fees specified in fee Category 3P; and
(2) Licenses that authorize waste disposal
services are subject to the fees specified in
fee Categories 4A, 4B, and 4C.................. 5,600
O. Licenses for possession and use of byproduct
material issued pursuant to Part 34 of this chapter
for industrial radiography operations. This
category also includes the possession and use of
source material for shielding authorized pursuant
to Part 40 of this chapter when authorized on the
same license....................................... 13,000
P. All other specific byproduct material licenses,
except those in Categories 4A through 9D........... 1,600
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or
special nuclear material from other persons for the
purpose of contingency storage or commercial land
disposal by the licensee; or licenses authorizing
contingency storage of low-level radioactive waste
at the site of nuclear power reactors; or licenses
for receipt of waste from other persons for
incineration or other treatment, packaging of
resulting waste and residues, and transfer of
packages to another person authorized to receive or
dispose of waste material.......................... \5\ 94,300
B. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or
special nuclear material from other persons for the
purpose of packaging or repackaging the material.
The licensee will dispose of the material by
transfer to another person authorized to receive or
dispose of the material............................ 13,300
C. Licenses specifically authorizing the receipt of
prepackaged waste byproduct material, source
material, or special nuclear material from other
persons. The licensee will dispose of the material
by transfer to another person authorized to receive
or dispose of the material......................... 7,100
5. Well logging:
A. Licenses for possession and use of byproduct
material, source material, and/or special nuclear
material for well logging, well surveys, and tracer
studies other than field flooding tracer studies... 7,500
B. Licenses for possession and use of byproduct
material for field flooding tracer studies......... 12,200
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of
items contaminated with byproduct material, source
material, or special nuclear material.............. 13,600
7. Human use of byproduct, source, or special nuclear
material:
A. Licenses issued pursuant to Parts 30, 35, 40, and
70 of this chapter for human use of byproduct
material, source material, or special nuclear
material in sealed sources contained in teletherapy
devices. This category also includes the possession
and use of source material for shielding when
authorized on the same license..................... 9,500
B. Licenses of broad scope issued to medical
institutions or two or more physicians pursuant to
Parts 30, 33, 35, 40, and 70 of this chapter
authorizing research and development, including
human use of byproduct material except licenses for
byproduct material, source material, or special
nuclear material in sealed sources contained in
teletherapy devices. This category also includes
the possession and use of source material for
shielding when authorized on the same license \9\.. 21,700
C. Other licenses issued pursuant to Parts 30, 35,
40, and 70 of this chapter for human use of
byproduct material, source material, and/or special
nuclear material except licenses for byproduct
material, source material, or special nuclear
material in sealed sources contained in teletherapy
devices. This category also includes the possession
and use of source material for shielding when
authorized on the same license \9\................. 4,300
8. Civil defense:
A. Licenses for possession and use of byproduct
material, source material, or special nuclear
material for civil defense activities.............. 1,600
9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material,
except reactor fuel devices, for commercial
distribution....................................... 6,700
B. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel devices............. 3,400
[[Page 16223]]
C. Registrations issued for the safety evaluation of
sealed sources containing byproduct material,
source material, or special nuclear material,
except reactor fuel, for commercial distribution... 1,400
D. Registrations issued for the safety evaluation of
sealed sources containing byproduct material,
source material, or special nuclear material,
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel..................... 720
10. Transportation of radioactive material:
A. Certificates of Compliance or other package
approvals issued for design of casks, packages, and
shipping containers.
Spent Fuel, High-Level Waste, and plutonium air
packages....................................... \6\ N/A
Other Casks..................................... \6\ N/A
B. Approvals issued of 10 CFR Part 71 quality
assurance programs.
Users and Fabricators........................... 72,700
Users........................................... 950
11. Standardized spent fuel facilities................ \6\ N/A
12. Special Projects.................................. \6\ N/A
13. A. Spent fuel storage cask Certificate of
Compliance........................................... \6\ N/A
B. General licenses for storage of spent fuel
under 10 CFR 72.210............................ 260,900
14. Byproduct, source, or special nuclear material
licenses and other approvals authorizing
decommissioning, decontamination, reclamation, or
site restoration activities pursuant to 10 CFR Parts
30, 40, 70, and 72................................... \7\ N/A
15. Import and Export licenses........................ \8\ N/A
16. Reciprocity....................................... \8\ N/A
17. Master materials licenses of broad scope issued to
Government agencies.................................. 388,400
18. Department of Energy:.............................
A. Certificates of Compliance................... \10\ 1,077,000
B. Uranium Mill Tailing Radiation Control Act
(UMTRCA) activities............................ 1,812,000
------------------------------------------------------------------------
\1\ Annual fees will be assessed based on whether a licensee held a
valid license with the NRC authorizing possession and use of
radioactive material during the fiscal year. However, the annual fee
is waived for those materials licenses and holders of certificates,
registrations, and approvals who either filed for termination of their
licenses or approvals or filed for possession only/storage licenses
prior to October 1, 1995, and permanently ceased licensed activities
entirely by September 30, 1995. Annual fees for licensees who filed
for termination of a license, downgrade of a license, or for a POL
during the fiscal year and for new licenses issued during the fiscal
year will be prorated in accordance with the provisions of Sec.
171.17. If a person holds more than one license, certificate,
registration, or approval, the annual fee(s) will be assessed for each
license, certificate, registration, or approval held by that person.
For licenses that authorize more than one activity on a single license
(e.g., human use and irradiator activities), annual fees will be
assessed for each category applicable to the license. Licensees paying
annual fees under Category 1.A.(1) are not subject to the annual fees
of Category 1.C and 1.D for sealed sources authorized in the license.
\2\ Payment of the prescribed annual fee does not automatically renew
the license, certificate, registration, or approval for which the fee
is paid. Renewal applications must be filed in accordance with the
requirements of Parts 30, 40, 70, 71, or 72 of this chapter.
\3\ For FYs 1997 and 1998, fees for these materials licenses will be
calculated and assessed in accordance with Sec. 171.13 and will be
published in the Federal Register for notice and comment.
\4\ A Class I license includes mill licenses issued for the extraction
of uranium from uranium ore. A Class II license includes solution
mining licenses (in-situ and heap leach) issued for the extraction of
uranium from uranium ores including research and development licenses.
An ``other'' license includes licenses for extraction of metals, heavy
metals, and rare earths.
\5\ Two licenses have been issued by NRC for land disposal of special
nuclear material. Once NRC issues a LLW disposal license for byproduct
and source material, the Commission will consider establishing an
annual fee for this type of license.
\6\ Standardized spent fuel facilities, Parts 71 and 72 Certificates of
Compliance, and special reviews, such as topical reports, are not
assessed an annual fee because the generic costs of regulating these
activities are primarily attributable to the users of the designs,
certificates, and topical reports.
\7\ Licensees in this category are not assessed an annual fee because
they are charged an annual fee in other categories while they are
licensed to operate.
\8\ No annual fee is charged because it is not practical to administer
due to the relatively short life or temporary nature of the license.
\9\ Separate annual fees will not be assessed for pacemaker licenses
issued to medical institutions who also hold nuclear medicine licenses
under Categories 7B or 7C.
\10\ This includes Certificates of Compliance issued to DOE that are not
under the Nuclear Waste Fund.
\11\ No annual fee has been established because there are currently no
licensees in this particular fee category.
(e) The activities comprising the FY 1995 surcharge are as follows:
(1) LLW disposal generic activities;
(2) Activities not attributable to an existing NRC licensee or
classes of licensees; e.g., international cooperative safety program
and international safeguards activities; support for the Agreement
State program; site decommissioning management plan (SDMP) activities;
and
(3) Activities not currently assessed under 10 CFR part 170
licensing and inspection fees based on existing law or Commission
policy, e.g., reviews and inspections conducted of nonprofit
educational institutions and Federal agencies; activities related to
decommissioning and reclamation and costs that would not be collected
from small entities based on Commission policy in accordance with the
Regulatory Flexibility Act.
* * * * *
9. In Sec. 171.19, paragraphs (b) and (c) are revised and a new
paragraph (d) is added to read as follows:
Sec. 171.19 Payment.
* * * * *
(b) For FY 1996 through FY 1998, the Commission will adjust the
fourth quarterly bill for operating power reactors and certain
materials licensees to recover the full amount of the revised annual
fee. If the amounts collected in the first three quarters exceed the
amount of the revised annual fee, the overpayment will be refunded. The
NRC will refund any ``flat'' materials renewal fees payments received
for renewal applications filed in FY 1996, as appropriate. All other
licensees, or holders of a certificate, registration, or approval of a
QA program will be sent a bill for the full amount of the annual fee
upon publication of the final rule or on the anniversary date of the
license.
[[Page 16224]]
Payment is due on the invoice date and interest accrues from the date
of the invoice. However, interest will be waived if payment is received
within 30 days from the invoice date.
(c) For FYs 1996 through 1998, annual fees in the amount of
$100,000 or more and described in the Federal Register notice pursuant
to Sec. 171.13 must be paid in quarterly installments of 25 percent as
billed by the NRC. The quarters begin on October 1, January 1, April 1,
and July 1 of each fiscal year.
(d) For FYs 1996 through 1998, annual fees of less than $100,000
must be paid as billed by the NRC. Beginning in FY 1996, materials
license annual fees that are less than $100,000 will be billed on the
anniversary of the license. The materials licensees that will be billed
on the anniversary date of the license are those covered by fee
categories 1.C. and 1.D.; 2.A.(2) through 2.C.; 3.A. through 3.P.; 4.B.
through 9.D.; and 10.B. For annual fee purposes, the anniversary date
of the license is considered to be the first day of the month in which
the original license was issued by the NRC. During the transition year
of FY 1996, licensees with license anniversary dates falling between
October 1, 1995, and the effective date of the FY 1996 final rule will
receive an annual fee bill payable on the effective date of the final
rule, and licensees with license anniversary dates that fall on or
after the effective date of the final rule will be billed on the
anniversary of their license. Starting with the effective date of the
FY 1996 final rule, licensees that are billed on the license
anniversary date will be assessed the annual fee in effect on the
anniversary date of the license.
Dated at Rockville, Maryland, this 25th day of March, 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
Appendix A to This Final Rule Regulatory Flexibility Analysis For the
Amendments to 10 CFR Part 170 (License Fees) and 10 CFR Part 171
(Annual Fees)
I. Background
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
establishes as a principle of regulatory practice that agencies
endeavor to fit regulatory and informational requirements, consistent
with applicable statutes, to a scale commensurate with the businesses,
organizations, and government jurisdictions to which they apply. To
achieve this principle, the Act requires that agencies consider the
impact of their actions on small entities. If the agency cannot certify
that a rule will not significantly impact a substantial number of small
entities, then a regulatory flexibility analysis is required to examine
the impacts on small entities and the alternatives to minimize these
impacts.
To assist in considering these impacts under the Regulatory
Flexibility Act (RFA), first the NRC adopted size standards for
determining which NRC licensees qualify as small entities (50 FR 50241;
December 9, 1985). These size standards were clarified November 6, 1991
(56 FR 56672). On April 7, 1994 (59 FR 16513), the Small Business
Administration (SBA) issued a final rule changing its size standards.
The SBA adjusted its receipts-based size standards levels to mitigate
the effects of inflation from 1984 to 1994. On November 30, 1994 (59 FR
61293), the NRC published a proposed rule to amend its size standards.
After evaluating the two comments received, a final rule that would
revise the NRC's size standards as proposed was developed and approved
by the SBA on March 24, 1995. The NRC published the final rule revising
its size standards on April 11, 1995 (60 FR 18344). The revised
standards became effective May 11, 1995. The revised standards adjusted
the NRC receipts-based size standards from $3.5 million to $5 million
to accommodate inflation and to conform to the SBA final rule. The NRC
also eliminated the separate $1 million size standard for private
practice physicians and applied a receipts-based size standard of $5
million to this class of licensees. This mirrored the revised SBA
standard of $5 million for medical practitioners. The NRC also
established a size standard of 500 or fewer employees for business
concerns that are manufacturing entities. This standard is the most
commonly used SBA employee standard and is the standard applicable to
the types of manufacturing industries that hold an NRC license.
The NRC used the revised standards in the final FY 1995 fee rule
and is using them in this FY 1996 final rule. The small entity fee
categories in Sec. 171.16(c) of this final rule reflect the changes in
the NRC's size standards adopted in FY 1995. A new maximum small entity
fee for manufacturing industries with 35 to 500 employees was
established at $1,800 and a lower-tier small entity fee of $400 was
established for those manufacturing industries with less than 35
employees. The lower-tier receipts-based threshold of $250,000 was
raised to $350,000 to reflect approximately the same percentage
adjustment as that made by the SBA when they adjusted the receipts-
based standard from $3.5 million to $5 million. The NRC believes that
continuing these actions for FY 1996 will reduce the impact of annual
fees on small businesses. The NRC size standards are codified at 10 CFR
2.810.
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), requires that the NRC recover approximately 100 percent of
its budget authority, less appropriations from the Nuclear Waste Fund,
for Fiscal Years (FY) 1991 through 1995 by assessing license and annual
fees. OBRA-90 was amended in 1993 to extend the 100 percent recovery
requirement for NRC through 1998. For FY 1991, the amount for
collection was approximately $445.3 million; for FY 1992, approximately
$492.5 million; for FY 1993 about $518.9 million; for FY 1994 about
$513 million; for FY 1995 about $503.6 million and the amount to be
collected in FY 1996 is approximately $462.3 million.
To comply with OBRA-90, the Commission amended its fee regulations
in 10 CFR Parts 170 and 171 in FY 1991 (56 FR 31472; July 10, 1991) in
FY 1992, (57 FR 32691; July 23, 1992) in FY 1993 (58 FR 38666; July 20,
1993) in FY 1994 (59 FR 36895; July 20, 1994) and in FY 1995 (60 FR
32218; June 20, 1995) based on a careful evaluation of over 1,000
comments. These final rules established the methodology used by NRC in
identifying and determining the fees assessed and collected in FYs
1991-1995.
The NRC indicated in the FY 1995 final rule that it would attempt
to stabilize annual fees as follows. Beginning in FY 1996, it would
adjust the annual fees only by the percentage change (plus or minus) in
NRC's total budget authority unless there was a substantial change in
the total NRC budget authority or the magnitude of the budget allocated
to a specific class of licensees, in which case the annual fee base
would be recalculated (60 FR 32225; June 20, 1995). The NRC also
indicated that the percentage change would be adjusted based on changes
in the 10 CFR Part 170 fees and other receipts as well as an adjustment
for the number of licensees paying the fees. As a result, the NRC is
establishing the FY 1996 annual fees for all licensees at 6.5 percent
below the FY 1995 annual fees. The NRC believes that the 6.5 percent
downward adjustment to the FY 1995 annual fees is not a substantial
enough change to warrant establishing a new baseline for FY 1996.
The NRC is also continuing to streamline the fee structure and
process for materials licenses, efforts which
[[Page 16225]]
began in FY 1995. Two changes are being made in this area.
First, the NRC will assess annual fees for certain materials
licenses on the anniversary date of the license. Billing certain
materials licenses on the anniversary date of the license will allow
NRC to make improved efficiencies in the billing process whereby
approximately 500 annual fee invoices will be sent to materials
licensees each month. The current practice of billing over 6,000
materials licensees at the same time in the fiscal year is eliminated.
The NRC believes that the efficiencies gained by billing certain
materials annual fees on a monthly basis as well as materials licensees
knowing exactly when they will be billed each year for the annual fee
outweigh the inconveniences that may be caused during the FY 1996
transition period.
Second, the NRC is further streamlining the materials fee program
and improving the predictability of fees by eliminating the materials
``flat'' renewal fees in Sec. 170.31. This action is consistent with
the NRC's recent Business Process Reengineering initiative to extend
the duration of certain materials licenses. The NRC published a
proposed rule explaining this initiative in the Federal Register on
September 8, 1995, (60 FR 46784). In the proposed rule, certain
materials licenses would be extended for five years beyond their
expiration date. Additionally, comments were requested on the general
topic of the appropriate duration of licenses. A final rule was
published in the Federal Register on January 16, 1996 (61 FR 1109).
II. Impact on Small Entities
The comments received on the proposed FY 1991-1995 fee rule
revisions and the small entity certifications received in response to
the final FY 1991-1995 fee rules indicate that NRC licensees qualifying
as small entities under the NRC's size standards are primarily those
licensed under the NRC's materials program. Therefore, this analysis
will focus on the economic impact of the annual fees on materials
licensees.
The Commission's fee regulations result in substantial fees being
charged to those individuals, organizations, and companies that are
licensed under the NRC materials program. Of these materials licensees,
about 18 percent (approximately 1,300 licensees) have requested small
entity certification in the past. In FY 1993, the NRC conducted a
survey of its materials licensees. The results of this survey indicated
that about 25 percent of these licensees could qualify as small
entities under the current NRC size standards.
The commenters on the FY 1991-1994 proposed fee rules indicated the
following results if the proposed annual fees were not modified:
--Large firms would gain an unfair competitive advantage over small
entities. One commenter noted that a small well-logging company (a
``Mom and Pop'' type of operation) would find it difficult to absorb
the annual fee, while a large corporation would find it easier. Another
commenter noted that the fee increase could be more easily absorbed by
a high-volume nuclear medicine clinic. A gauge licensee noted that, in
the very competitive soils testing market, the annual fees would put it
at an extreme disadvantage with its much larger competitors because the
proposed fees would be the same for a two-person licensee as for a
large firm with thousands of employees.
--Some firms would be forced to cancel their licenses. One commenter,
with receipts of less than $500,000 per year, stated that the proposed
rule would, in effect, force it to relinquish its soil density gauge
and license, thereby reducing its ability to do its work effectively.
Another commenter noted that the rule would force the company and many
other small businesses to get rid of the materials license altogether.
Commenters stated that the proposed rule would result in about 10
percent of the well-logging licensees terminating their licenses
immediately and approximately 25 percent terminating their licenses
before the next annual assessment.
--Some companies would go out of business. One commenter noted that the
proposal would put it, and several other small companies, out of
business or, at the very least, make it hard to survive.
--Some companies would have budget problems. Many medical licensees
commented that, in these times of slashed reimbursements, the proposed
increase of the existing fees and the introduction of additional fees
would significantly affect their budgets. Another noted that, in view
of the cuts by Medicare and other third party carriers, the fees would
produce a hardship and some facilities would experience a great deal of
difficulty in meeting this additional burden.
Over the past five years, approximately 2,900 license, approval,
and registration terminations have been requested. Although some of
these terminations were requested because the license was no longer
needed or licenses or registrations could be combined, indications are
that other termination requests were due to the economic impact of the
fees.
The NRC continues to receive written and oral comments from small
materials licensees. These commenters previously indicated that the
$3.5 million threshold for small entities was not representative of
small businesses with gross receipts in the thousands of dollars. These
commenters believe that the $1,800 maximum annual fee represents a
relatively high percentage of gross annual receipts for these ``Mom and
Pop'' type businesses. Therefore, even the reduced annual fee could
have a significant impact on the ability of these types of businesses
to continue to operate.
To alleviate the continuing significant impact of the annual fees
on a substantial number of small entities, the NRC considered
alternatives, in accordance with the RFA. These alternatives were
evaluated in the FY 1991 rule (56 FR 31472; July 10, 1991) in the FY
1992 rule (57 FR 32691; July 23, 1992), in the FY 1993 rule (58 FR
38666; July 20, 1993); in the FY 1994 rule (59 FR 36895; July 20, 1994)
and in the FY 1995 rule (60 FR 32218; June 20, 1995). The alternatives
considered by the NRC can be summarized as follows.
--Base fees on some measure of the amount of radioactivity possessed by
the licensee (e.g., number of sources).
--Base fees on the frequency of use of the licensed radioactive
material (e.g., volume of patients).
--Base fees on the NRC size standards for small entities.
The NRC has reexamined the FY 1991-1995 evaluations of the these
alternatives. Based on that reexamination, the NRC continues to believe
that establishment of a maximum fee for small entities is the most
appropriate option to reduce the impact on small entities.
The NRC established, and is continuing for FY 1996, a maximum
annual fee for small entities. The RFA and its implementing guidance do
not provide specific guidelines on what constitutes a significant
economic impact on a small entity. Therefore, the NRC has no benchmark
to assist it in determining the amount or the percent of gross receipts
that should be charged to a small entity. For FY 1996, the NRC will
rely on the analysis previously completed that established a maximum
annual fee for a small entity and the amount of costs that must be
recovered from other NRC licensees as a result of establishing the
maximum annual fees.
The NRC continues to believe that the 10 CFR Part 170 license fees
[[Page 16226]]
(application and amendment), or any adjustments to these licensing fees
during the past year, do not have a significant impact on small
entities. In issuing this final rule for FY 1996, the NRC concludes
that the 10 CFR Part 170 materials license fees do not have a
significant impact on a substantial number of small entities and that
the 10 CFR Part 171 maximum annual small entity fee of $1,800 be
continued.
By maintaining the maximum annual fee for small entities at $1,800,
the annual fee for many small entities is reduced while at the same
time materials licensees, including small entities, pay for most of the
FY 1996 costs attributable to them. The costs not recovered from small
entities are allocated to other materials licensees and to operating
power reactors. However, the amount that must be recovered from other
licensees as a result of maintaining the maximum annual fee is not
expected to increase. Therefore, the NRC is continuing, for FY 1996,
the maximum annual fee (base annual fee plus surcharge) for certain
small entities at $1,800 for each fee category covered by each license
issued to a small entity.
While reducing the impact on many small entities, the Commission
agrees that the maximum annual fee of $1,800 for small entities, when
added to the Part 170 license fees, may continue to have a significant
impact on materials licensees with annual gross receipts in the
thousands of dollars. Therefore, as in FY 1992-1995, the NRC is
continuing the lower-tier small entity annual fee of $400 for small
entities with relatively low gross annual receipts. The lower-tier
small entity fee of $400 also applies to manufacturing concerns, and
educational institutions not State or publicly supported, with less
than 35 employees. This lower-tier small entity fee was first
established in the final rule published in the Federal Register on
April 17, 1992 (57 FR 13625) and now includes manufacturing companies
with a relatively small number of employees.
III. Summary
The NRC has determined the 10 CFR Part 171 annual fees
significantly impacts a substantial number of small entities. A maximum
fee for small entities strikes a balance between the requirement to
collect 100 percent of the NRC budget and the requirement to consider
means of reducing the impact of the fee on small entities. On the basis
of its regulatory flexibility analyses, the NRC concludes that a
maximum annual fee of $1,800 for small entities and a lower-tier small
entity annual fee of $400 for small businesses and not-for-profit
organizations with gross annual receipts of less than $350,000, small
governmental jurisdictions with a population of less than 20,000, small
manufacturing entities that have less than 35 employees and educational
institutions that are not State or publicly supported and have less
than 35 employees reduces the impact on small entities. At the same
time, these reduced annual fees are consistent with the objectives of
OBRA-90. Thus, the revised fees for small entities maintain a balance
between the objectives of OBRA-90 and the RFA. Therefore, the analysis
and conclusions established in the FY 1991-1995 rules remain valid for
this final rule for FY 1996.
[FR Doc. 96-9026 Filed 4-11-96; 8:45 am]
BILLING CODE 7590-01-P
Complete official Federal Register PDF
FR Doc. 96-8951 Airworthiness Directives; McCauley Accessory Division, The Cessna Aircraft Company, Model C35, C72, C74, C75, C80, C86, C87, C92, and C93 Series Propellers
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16226-16229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8951]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94-ANE-47; Amendment 39-9566; AD 95-24-05 R1]
Airworthiness Directives; McCauley Accessory Division, The Cessna
Aircraft Company, Model C35, C72, C74, C75, C80, C86, C87, C92, and C93
Series Propellers
AGENCY: Federal Aviation Administration, DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This amendment revises an existing airworthiness directive
(AD), applicable to McCauley Accessory Division, The Cessna Aircraft
Company, Model C35, C72, C74, C75, C80, C86, C87, C92, and C93 series
propellers, that currently requires initial and repetitive visual and
dye penetrant inspections of the propeller hub for cracks. This
existing AD also requires a one-time eddy current inspection for cracks
in the threaded areas of the propeller hub followed by modification of
the hub to contain oil with red dye as a terminating action to the
repetitive inspections. This amendment clarifies that a dye penetrant
inspection is only necessary if crack indications are found or
suspected during the visual inspection. This amendment is prompted by
requests from operators for clarification of inspection procedures. The
actions specified by this AD are intended to prevent propeller blade
separation due to a cracked propeller hub, which could result in
separation of the engine from the aircraft and subsequent loss of
aircraft control.
DATES: Effective April 12, 1996.
The incorporation by reference of certain publications listed in
the regulations was approved by the Director of the Federal Register as
of December 18, 1995. (60 FR 61645, December 1, 1995).
Comments for inclusion in the Rules Docket must be received on or
before June 11, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), New England Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 94-ANE-47, 12 New England
Executive Park, Burlington, MA 01803-5299.
The service information referenced in this AD may be obtained from
McCauley Accessory Division, The Cessna Aircraft Company, 3535 McCauley
Dr., Vandalia, OH 45377-0430; telephone (513) 890-5246, fax (513) 890-
6001. This information may be examined at the FAA, New England Region,
Office of the Assistant Chief Counsel, 12 New England Executive Park,
Burlington, MA; or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Patricia Bonnen, Aerospace Engineer,
Chicago Aircraft Certification Office, FAA, Small Airplane Directorate,
2300 East Devon Ave., Room 232, Des Plaines, IL 60018; telephone (847)
294-7134, fax (847) 294-7834.
SUPPLEMENTARY INFORMATION: On November 7, 1995, the Federal Aviation
Administration (FAA) issued AD 95-24-05, Amendment 39-9437 (60 FR
61645, December 1, 1995), applicable to McCauley Accessory Division,
The Cessna Aircraft Company, Model C35, C72, C74, C75, C80, C86, C87,
C92, and C93 series propellers, to require initial and repetitive
visual and dye penetrant inspections of the propeller hub for cracks.
That AD also requires a one-time eddy current inspection for cracks in
the threaded areas of the propeller hub followed by modification of the
hub to contain oil with red dye, which constitutes terminating action
to the repetitive visual and dye-penetrant inspections. That action was
prompted by several reports of cracked propeller hubs. Additionally,
two incidents have occurred where the propeller blades separated during
flight. That condition, if not corrected, could result in propeller
blade separation due to a cracked propeller hub, which could result in
separation of the engine from the aircraft and subsequent loss of
aircraft control.
Since the issuance of that AD, the FAA has received requests from
[[Page 16227]]
operators for clarification of inspection procedures. The AD as
currently written could be interpreted to mean that both visual and dye
penetrant inspections must be performed concurrently. As McCauley
Accessory Division, The Cessna Aircraft Company, Service Bulletin (SB)
No. 200C, dated January 20, 1994, states, dye penetrant inspection is
only necessary if crack indications are found or suspected during the
visual inspection. This revised AD clarifies the inspection procedures
to show that the dye penetrant inspection need not be performed
concurrently with the visual inspection, but sequentially, and only if
the visual inspection reveals actual or suspected crack indications.
The FAA has reviewed and approved the technical contents of the
following service documents: McCauley Accessory Division, The Cessna
Aircraft Company, SB No. 200C, dated January 20, 1994, that describes
procedures for an initial and repetitive visual and dye penetrant
inspections of propeller hubs for cracks; and McCauley Service Letter
(SL) No. 1993-11A, dated June 20, 1995, that describes procedures for
eddy current inspection for cracks in the threaded areas of the
propeller hub and modification of the hub to contain oil with red dye,
which provides a built-in means of crack detection, as well as improved
lubrication and corrosion protection.
Since an unsafe condition has been identified that is likely to
exist or develop on other propellers of this same type design, this AD
revises AD 95-24-05 to clarify that a dye penetrant inspection is only
necessary if crack indications are found or suspected during the visual
inspection. The other requirements of AD 95-24-05 remain unchanged. The
actions are required to be accomplished in accordance with the service
documents described previously.
Since a situation exists that requires the immediate adoption of
this regulation, it is found that notice and opportunity for prior
public comment hereon are impracticable, and that good cause exists for
making this amendment effective in less than 30 days.
Comments Invited
Although this action is in the form of a final rule that involves
requirements affecting flight safety and, thus, was not preceded by
notice and an opportunity for public comment, comments are invited on
this rule. Interested persons are invited to comment on this rule by
submitting such written data, views, or arguments as they may desire.
Communications should identify the Rules Docket number and be submitted
in triplicate to the address specified under the caption ADDRESSES. All
communications received on or before the closing date for comments will
be considered, and this rule may be amended in light of the comments
received. Factual information that supports the commenter's ideas and
suggestions is extremely helpful in evaluating the effectiveness of the
AD action and determining whether additional rulemaking action would be
needed.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the rule that might
suggest a need to modify the rule. All comments submitted will be
available, both before and after the closing date for comments, in the
Rules Docket for examination by interested persons. A report that
summarizes each FAA-public contact concerned with the substance of this
AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 94-ANE-47.'' The postcard will be date stamped and
returned to the commenter.
The regulations adopted herein 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. Therefore, in
accordance with Executive Order 12612, it is determined that this final
rule does not have sufficient federalism implications to warrant the
preparation of a Federalism Assessment.
The FAA has determined that this regulation is an emergency
regulation that must be issued immediately to correct an unsafe
condition in aircraft, and is not a ``significant regulatory action''
under Executive Order 12866. It has been determined further that this
action involves an emergency regulation under DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979). If it is determined
that this emergency regulation otherwise would be significant under DOT
Regulatory Policies and Procedures, a final regulatory evaluation will
be prepared and placed in the Rules Docket. A copy of it, if filed, may
be obtained from the Rules Docket at the location provided under the
caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.
Adoption of the Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration amends part 39 of
the Federal Aviation Regulations (14 CFR part 39) as follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing Amendment 39-9437 (60 FR
61645, December 1, 1995) and by adding a new airworthiness directive,
Amendment 39-9566, to read as follows:
95-24-05 R1 McCauley Accessory Division, The Cessna Aircraft
Company: Amendment 39-95-24-05R1. Docket 94-ANE-47. Revises AD 95-
24-05, Amendment 39-9437.
Applicability: McCauley Accessory Division, The Cessna Aircraft
Company, Model C35, C72, C74, C75, C80, C86, C87, C92, and C93
series propellers, incorporating the following Hub Models:
D3AF32C35-( )
3AF32C72-( )
3AF34C74-( )
3AF32C75-( )
D3AF32C80-( )
3AF34C86-( )
3AF32C87-( )
D3AF32C87-( )
3AF34C92-( )
3AF32C93-( )
The parentheses used in the above list indicate the presence or
absence of an additional letter(s) which vary the basic propeller
hub model designation. These letter(s) define minor changes that do
not affect interchangeability or eligibility, and therefore, this
airworthiness directive (AD) still applies regardless of whether
these letters are present or absent on the propeller hub model
designation.
These propellers are installed on but not limited to the
following aircraft:
Beech 58, 58A, 95-C55, -C55A, -D55, -D55A, -E55, -E55A.
British Aerospace B-206 Series 2.
Cessna 310K, 310L, 310N, 310P, 310Q, 310R, T310P, T310Q, T310R,
320D, 320E, 320F, 335, 340, 340A, 401, 401A, 401B, 402, 402A, 402B,
402C, 411, 411A, 414, 414A, 421, 421A, 421B.
Colemill Executive 600 (Conversion of Cessna 310I, 310J, 310K,
310L, 310N).
RAM Conversion of Cessna 340.
Note 1: The above is not an exhaustive list of aircraft which
may contain the affected
[[Page 16228]]
McCauley Model C35, C72, C74, C75, C80, C86, C87, C92, and C93
series propellers, incorporating Models D3AF32C35, 3AF32C72,
3AF34C74, 3AF32C75, D3AF32C80, 3AF34C86, 3AF32C87, D3AF32C87,
3AF34C92, and 3AF32C93 propeller hubs because of installation
approvals made by Supplemental Type Certificate or Federal Aviation
Administration (FAA) Form 337 ``Major Repair and Alteration,'' etc.
It is the responsibility of the owner, operator and person returning
the aircraft to service to determine if an aircraft has an affected
propeller.
Note 2: This AD applies to each propeller identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For propellers that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must use the authority
provided in paragraph (g) to request approval from the FAA. This
approval may address either no action, if the current configuration
eliminates the unsafe condition, or different actions necessary to
address the unsafe condition described in this AD. Such a request
should include an assessment of the effect of the changed
configuration on the unsafe condition addressed by this AD. In no
case does the presence of any modification, alteration, or repair
remove any propeller from the applicability of this AD.
Compliance: Required as indicated, unless accomplished
previously.
To prevent propeller blade separation due to a cracked propeller
hub, which could result in separation of the engine from the
aircraft and subsequent loss of aircraft control, accomplish the
following:
(a) Within the next 25 hours time in service (TIS) after
December 18, 1995 (the effective date of AD 95-24-05), unless
already accomplished within the last 35 hours TIS, and thereafter at
intervals not to exceed 60 hours TIS, perform a visual inspection
for cracks and, if crack indications are found or suspected, confirm
cracks by a dye penetrant inspection on propeller hubs in accordance
with McCauley Accessory Division, The Cessna Aircraft Company,
Service Bulletin (SB) No. 200C, dated January 20, 1994. Any
propeller hubs found cracked during this inspection are to be
permanently retired from service and replaced with a serviceable hub
modified in accordance with paragraph (c) of this AD, or with an
equivalent initial production propeller which has incorporated a hub
containing oil with red dye.
(b) For affected propellers identified with the change letter
``R'' following the hub model designation and having an oil-fill
plug in the side of the hub, compliance is required only with
paragraphs (d) and (f) of this AD.
(c) Perform a one-time eddy current inspection and modify
serviceable propeller hubs in accordance with the following schedule
and requirements:
------------------------------------------------------------------------
Propeller time-in-service (TIS) on the
effective date of this AD Compliance required
------------------------------------------------------------------------
Greater than 900 hours or 59 calendar Within the next 300 hours or
months since last overhaul/penetrant at the next annual
inspection or installed new, or prior TIS inspection or by December
unknown. 31, 1996, whichever occurs
first.
Less than or equal to both 900 hours and Prior to the accumulation of
59 calendar months since last overhaul/ 1,200 hours or 60 calendar
penetrant inspection or installed new. months since last overhaul/
penetrant inspection or
installed new, whichever
occurs first.
------------------------------------------------------------------------
(1) Perform a one-time eddy current inspection for cracks in the
threaded areas of the propeller hubs in accordance with McCauley
Accessory Division, The Cessna Aircraft Company, Service Letter (SL)
No. 1993-11A, dated June 20, 1995.
(2) Any propeller hubs found cracked during the eddy current
inspection are to be permanently retired from service and replaced
with a serviceable hub modified in accordance with paragraph (c) of
this AD, or with an equivalent initial production propeller which
has incorporated a hub containing oil with red dye.
(3) Modify affected propeller hubs to contain oil with red dye,
in accordance with McCauley Accessory Division, The Cessna Aircraft
Company, SL No. 1993-11A, dated June 20, 1995. Completion of this
modification of the hub to contain oil with red dye constitutes
terminating action to the repetitive inspections required by
paragraph (a) of this AD.
Note: The modification of the propeller hub assembly to contain
oil with a red dye provides an ``on-condition'' (in- service) means
of early crack detection of the propeller assembly and also improves
lubrication and corrosion protection. The oil will add approximately
4.0 lbs. to the weight of the propeller assembly.
(4) Previous compliance with McCauley Accessory Division, SL
1993-11, dated September 15, 1993, also constitutes compliance with
paragraphs (a) and (c) of this AD.
(5) Install Decal-Warning ``Oil Filled'', part number B-6493, in
accordance with McCauley Accessory Division, The Cessna Aircraft
Company, SL No. 1993-11A, dated June 20, 1995, Figure F-9.
(d) If leakage of oil containing red dye is detected in service
(whether during flight or while on the ground), determine, prior to
further flight, the source of leakage in accordance with the
procedures specified in Section A-7 of McCauley SL No. 1993-11A,
dated June 20, 1995. Remove from service, prior to further flight,
propeller assemblies that exhibit cracks and replace with a
serviceable unit, modified in accordance with paragraph (c) of this
AD, or with an equivalent initial production propeller that has
incorporated a hub containing oil with red dye. Oil-filled
propellers are identified with the change letter ``R'' following the
Hub Model Designation and have an oil-fill plug in the side of the
hub.
(e) The ``calendar month'' compliance times stated in this AD
allow the performance of the required action up to the last day of
the month in which compliance is required. For example, a required
eddy current inspection and modification 60 calendar months from
last overhaul/penetrant inspection that was performed on December
15, 1991, would allow the eddy current inspection and modification
to be performed no later than December 31, 1996.
(f) Report in writing any cracks found during the accomplishment
of paragraphs (a), (c) or (d) of this AD to the Manager, Chicago
Aircraft Certification Office, FAA, Small Airplane Directorate, 2300
East Devon Avenue, Room 232, Des Plaines, IL 60018; telephone (847)
294-7134, fax (847) 294-7834, within 10 days of the inspection.
Information collection requirements contained in the regulation have
been approved by the Office of Management and Budget (OMB) under the
provisions of the Paperwork Reduction Act of 1980 (P.L. 96-511) and
has been assigned OMB Control Number 2120-0056.
(g) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Chicago Aircraft Certification
Office. The request should be forwarded through an appropriate FAA
Maintenance Inspector, who may add comments and then send it to the
Manager, Chicago Aircraft Certification Office.
Note: Information concerning the existence of approved
alternative methods of compliance with this airworthiness directive,
if any, may be obtained from the Chicago Aircraft Certification
Office.
(h) Special flight permits may be issued in accordance with
Secs. 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR
21.197 and 21.199) to operate the aircraft to a location where the
requirements of this AD can be accomplished.
(i) The inspections and modification required by this AD shall
be done in accordance with the following McCauley Accessory
Division, The Cessna Aircraft Company, service documents:
------------------------------------------------------------------------
Document No. Pages Date
------------------------------------------------------------------------
SB 200C............................ 1-4 Jan. 20, 1994.
-------
Total pages: 4
SL 1993-11A:
Cover Page......................... 1 June 20, 1995.
Section A........................ 1-4 June 20, 1995.
Section B........................ 1 June 20, 1995.
Section C........................ 1 June 20, 1995.
Section D........................ 1-7 June 20, 1995.
Section E........................ 1-10 June 20, 1995.
Section F........................ 1-15 June 20, 1995.
Section G........................ 1 June 20, 1995.
Section H........................ 1-4 June 20, 1995.
Section I........................ 1-4 June 20, 1995.
-------
Total pages: 48
------------------------------------------------------------------------
This incorporation by reference was approved by the Director of
the Federal
[[Page 16229]]
Register as of December 18, 1995. (60 FR 61645, December 1, 1995) in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from McCauley Accessory Division, The Cessna Aircraft
Company, 3535 McCauley Dr., Vandalia, OH 45377-0430; telephone (513)
890-5246, fax (513) 890-6001. Copies may be inspected at the FAA,
New England Region, Office of the Assistant Chief Counsel, 12 New
England Executive Park, Burlington, MA; or at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700,
Washington, DC.
(j) This amendment becomes effective on April 12, 1996.
Issued in Burlington, Massachusetts, on April 1, 1996.
Jay J. Pardee,
Manager, Engine and Propeller Directorate, Aircraft Certification
Service.
[FR Doc. 96-8951 Filed 4-11-96; 8:45 am]
BILLING CODE 4910-13-P
Complete official Federal Register PDF
FR Doc. 96-8456 Authority To Issue Subpoenas
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16229-16230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8456]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[FCC 95-471]
Authority To Issue Subpoenas
AGENCY: Federal Communications Commission.
ACTION: Final rule; Order on Reconsideration.
-----------------------------------------------------------------------
SUMMARY: The Commission ruled on two petitions for reconsideration of
its earlier order (FCC 94-319; released November 21, 1994) adopting
rules to permit the Chief, Common Carrier Bureau, to issue subpoenas in
matters involving allegations of unlawful conduct by common carriers
under Title II of the Communications Act of 1934, as amended. One
petitioner argued that the Commission should reconsider its delegation
of authority and should issue a notice of proposed rulemaking to
solicit comments on the proper scope of delegation. The other
petitioner argued that the delegation of subpoena power is
unconstitutional and that the Commission should limit the scope of
subpoena power granted to the Bureau accordingly. The Commission found
that the petitioners arguments were without merit. The Commission
decided on reconsideration, however, that some modification of the
earlier order was appropriate. On its own motion, the Commission issued
an order (``Amendment of Part 0'') delegating similar authority to
other bureaus within the Commission (FCC 95-213; released June 9,
1995). This modification of the rules required that the delegation of
authority to other bureaus be conditioned on an approval from the
Office of General Counsel, that the bureaus only be authorized to issue
``non-hearing-related'' subpoenas, and that the bureaus have a broad
delegation of subpoena authority over matters within their
jurisdiction. The Commission will amend its rules for the purpose of
authorizing the Chief of the Common Carrier Bureau, with the approval
of the Office of the General Counsel, to issue non-hearing related
subpoenas for the attendance of witnesses and the production of
documents deemed relevant by the Bureau, to add language making it
consistent with the Commission's Amendment of Part 0.
EFFECTIVE DATE: April 12, 1996.
FOR FURTHER INFORMATION CONTACT: Heather McDowell, Enforcement
Division, Common Carrier Bureau, (202) 418-0960.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's order
in FCC 95-471, adopted November 27, 1995, and released February 9,
1996. The full text of the rule is available for inspection and copying
during normal business hours in the FCC Reference Center, Room 239,
1919 M Street, N.W., Washington, D.C. 20554. The full text of this rule
may also be purchased from the Commission's duplicating contractor,
International Transcription Services, 2100 M Street, N.W., Suite 140,
Washington, D. C. 20037, (202) 857-3800.
Summary of Order
1. In this Order on Reconsideration, the Commission addresses
petitions filed by ICORE and the Personal Communications Industry
Association (``PCIA'') seeking reconsideration of the Commission's
order (``Subpoena Order'') (59 FR 66487, published December 27, 1994)
delegating certain investigative authority to the Chief, Common Carrier
Bureau (``Bureau''). For the reasons set forth below, the Commission
denies both petitions. The Commission does, however, on its own motion,
add several modifications to the Bureau's delegated authority to issue
subpoenas.
2. In its petition, PCIA argues that the Commission should
reconsider its delegation of subpoena authority to the Bureau and
should instead issue a notice of proposed rulemaking to solicit comment
on the proper scope of the delegation and to allow for an exploration
of the concerns as well of the benefits of such a delegation. ICORE, in
its petition, asserts that the delegation of subpoena authority to the
Bureau is unconstitutional to the extent that it can be construed as
applicable to the
[[Page 16230]]
investigation of connecting carriers. ICORE contends that because the
Commission itself does not have the authority to issue subpoenas to
connecting carriers under Title II of the Communications Act of 1934,
as amended, it should limit the scope of the subpoena power granted to
the Bureau accordingly.
I. Discussion
3. Neither PCIA's nor ICORE's arguments are meritorious. PCIA makes
no persuasive argument to support its claim that the Commission should
have initiated a notice and comment rulemaking proceeding to consider
the adoption of rules delegating subpoena authority to the Bureau. The
Commission emphasizes again that its decision to amend Section 0.291 of
its rules to grant the Bureau subpoena power pertains to agency
organization, procedure, or practice. Consequently, the notice and
comment requirement and the effective date provisions contained in
Sections 553(b) and 553(d) of the Administrative Procedure Act do not
apply.
4. Similarly, ICORE's argument that the Commission does not have
the authority to issue subpoenas to connecting carriers and, therefore,
should limit the Bureau's subpoena power accordingly is unavailing. The
Commission determined that it need not resolve in this proceeding the
question of whether it has the authority to issue subpoenas to
connecting carriers. The Subpoena Order simply delegates to the Bureau
subpoena authority properly exercised by the Commission. ICORE has
provided no support for its contention that this delegation is beyond
the scope of the Commission's authority or jurisdiction.
5. The Commission determined, however, that some modification to
the Bureau's subpoena authority is appropriate. The Commission recently
issued, on its own motion, an order (``Amendment of Part 0'') (60 FR
35503, published July 10, 1995) delegating similar authority to other
bureaus within the Commission. The delegation of authority in that
order differed from the delegation contained in the Subpoena Order in
three respects. First, the Commission delegated subpoena authority to
the bureaus on the condition that before the issuance of a subpoena,
each bureau would obtain the approval of the Office of General Counsel
(``OGC''). In conformance with this order, and in keeping with the
Commission's intent to make language in the delegations of authority to
issue subpoenas of all bureaus conform to a requirement for prior
approval by OGC, the Commission will amend Section 0.291(h) to add
additional language requiring OGC approval before a subpoena is issued.
6. Second, in Amendment of Part 0, the Commission qualified the
type of subpoena that may be authorized by the bureaus. Specifically,
the Commission stated that they are authorized to issue only ``non-
hearing related'' subpoenas. The delegation of subpoena authority to
the Bureau under Section 0.291(h) will be revised to include this
qualification.
7. Third, instead of limiting the other bureaus' subpoena authority
to investigations involving violations of particular sections or titles
within the Act, the Commission generally granted each of them a broad
delegation of subpoena authority over matters within their
jurisdiction. The Commission will, therefore, modify the delegation of
authority to the Common Carrier Bureau to be consistent in this regard.
II. Conclusion and Ordering Clauses
8. For the reasons set forth herein, the Commission denies the
petitions for reconsideration submitted by PCIA and ICORE. The
Commission also makes certain revisions to its delegation of subpoena
authority to the Bureau. On its own motion, the Commission amends
Section 0.291(h) to require the Chief, Common Carrier Bureau to obtain
the approval of OGC prior to the issuance of a subpoena, to qualify the
type of subpoena that may be authorized, and to extend the delegation
of the Bureau's subpoena authority.
9. Accordingly, it is ordered, pursuant to Sections 4(i), 4(j), and
405(a) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i),
154(j), and 405(a), that the Petitions for Reconsideration filed by
PCIA and ICORE ARE DENIED.
10. It is further ordered, pursuant to Sections 4(i) and 4(j) of
the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and
154(j), that Section 0.291(j) of the Commission's rules, 47 CFR 0.291,
IS AMENDED as set forth below. The requirement of notice and comment
rule making contained in 5 U.S.C. 553(b) and the effective date
provisions of 5 U.S.C. 553(d) do not apply because this amendment
concerns matters of agency organization, procedure, or practice. See 5
U.S.C. 553(b)(A), (d).
11. It is further ordered that this revision to Section 0.291(h),
as set forth below, is effective April 12, 1996.
List of Subjects in 47 CFR Part 0
Organization and functions: (Government agencies).
Federal Communications Commission.
William F. Caton,
Acting Secretary .
Rule Changes
Title 47 of the Code of Federal Regulations, Part 0, is amended as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
Authority: Secs. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155.
2. Section 0.291(h) is revised to read as follows:
Sec. 0.291 Authority delegated.
* * * * *
(h) Authority concerning the issuance of subpoenas. The Chief of
the Common Carrier Bureau or her/his designee is authorized to issue
non-hearing related subpoenas for the attendance and testimony of
witnesses and the production of books, papers, correspondence,
memoranda, schedules of charges, contracts, agreements, and any other
records deemed relevant to the investigation of matters within the
jurisdiction of the Common Carrier Bureau. Before issuing a subpoena,
the Bureau shall obtain the approval of the Office of General Counsel.
[FR Doc. 96-8456 Filed 4-11-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-8087 Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations
[Federal Register Volume 61, Number 72 (Friday, April 12, 1996)]
[Rules and Regulations]
[Pages 16290-16316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8087]
[[Page 16289]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 9, et al.
Imports and Exports of Hazardous Waste: Implementation of OECD Council
Decision; Final Rule
Federal Register / Vol. 61, No. 72 / Friday, April 12, 1996 / Rules
and Regulations
[[Page 16290]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 260, 261, 262, 263, 264, 265, 266 and 273
[FRL-5447-1]
RIN 2050-AD87
Imports and Exports of Hazardous Waste: Implementation of OECD
Council Decision C(92)39 Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The rule identifies the wastes, under the Resource
Conservation and Recovery Act (RCRA), that are subject to a graduated
system (green, amber, red) of procedural and substantive controls when
they move across national borders within the OECD for recovery. (EPA
may, in the future, identify wastes under other statutes that are
subject to the OECD Decision). It seeks to make the transactions fully
transparent and to prevent or minimize the possibility of such wastes
being abandoned or otherwise illegally handled. These requirements will
apply only to U.S. exporters and importers of RCRA hazardous wastes
destined for recovery in OECD countries (except for Canada and Mexico;
waste shipments to and from these countries will continue to move under
the current bilateral agreements and regulations). Those U.S. exporters
and importers transacting hazardous waste movements outside the scope
of today's rule will remain subject to EPA's current waste export and
import regulations at 40 CFR part 262, subparts E and F.
This rule does not increase the scope of wastes subject to U.S.
export and import controls; it does, however, modify the procedural
controls governing their export and import when shipped for recovery
among OECD countries. Today's rule will assist in harmonizing the new
OECD requirements, reducing confusion to U.S. importers and exporters
and increasing the efficiency of the process.
EFFECTIVE DATE: This rule is effective on July 11, 1996. The OECD Green
List of Wastes (revised May 1994), Amber List of Wastes and Red List of
Wastes (both revised May 1993) as set forth in Appendix 3, Appendix 4
and Appendix 5, respectively, to the OECD Council Decision C(92)39/
FINAL (Concerning the Control of Transfrontier Movements of Wastes
Destined for Recovery Operations) were approved by the Director of the
Federal Register to be incorporated by reference in today's rule on
July 11, 1996.
ADDRESSES: Supporting materials are available for viewing in the RCRA
Information Center (RIC), located at 1235 Jefferson-Davis Highway,
First Floor, Arlington, Virginia 22203. The Docket Identification
Number is F-94-IEHF-FFFFF. The RIC is open from 9 a.m. to 4 p.m.,
Monday through Friday, excluding federal holidays. To review docket
materials, the public must make an appointment by calling (703) 603-
9230. The public may copy a maximum of 100 pages from any regulatory
docket at no charge. Additional copies cost $.15/page. Some supporting
materials are available electronically. See the ``Supplementary
Information'' section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing
impaired). In the Washington metropolitan area, call 703-412-9810 or
TDD 703-412-3323.
For more detailed information on specific aspects of this
rulemaking, contact Ms. Julia Gourley, Office of Solid Waste (5304),
U.S. Environmental Protection Agency, 401 M Street, SW., Washington, DC
20460, (202) 260-7944.
SUPPLEMENTARY INFORMATION:
Internet Access
Selected supporting materials are available on the Internet. Follow
these instructions to access the information electronically:
Gopher: gopher.epa.gov
WWW: http://www.epa.gov
Dial-up: (919) 558-0335.
This report can be accessed off the main EPA Gopher menu, in the
directory: EPA Offices and Regions/Office of Solid Waste and Emergency
Response (OSWER)/Office of Solid Waste (RCRA)/Hazardous Waste-RCRA-
Subtitle C/Exports/Imports.
FTP: ftp.epa.gov
Login: anonymous
Password: Your Internet address
Files are located in /pub/gopher/OSWRCRA.
Preamble Outline
I. Authority
A. Good Cause Exception to Notice and Comment Requirement
B. Effective Date
II. Background
A. History of the OECD and Development of Council Decision
C(92)39/FINAL
B. Relationship to the Basel Convention
C. Summary of Decision
1. Waste Lists
a. Green, Amber, and Red Lists
b. Unlisted Wastes
c. National Procedures
2. Control Procedures
a. Green-List Wastes
b. Amber-List Wastes
c. Red-List Wastes
d. When Wastes are not Considered Hazardous by All Concerned
Countries
III. Specific OECD Requirements and Relationship to RCRA
A. Differences Between the OECD Decision and Today's Rule
B. Definitions
1. Competent Authorities
2. Concerned Countries
3. Consignee
4. Country of Transit
5. Exporting Country
6. Generator
7. Importing Country
8. International Waste Identification Code
9. Notifier
10. OECD Area
11. Person
12. Recognized Trader
13. Recovery Facility
14. Recovery Operations
15. Transfrontier Movement
16. Wastes
C. Notification and Consent for Exports
1. Provisions Applicable to Amber-List and Red-List Wastes
a. Notice and Consent for Specific Shipments
b. General Notification
c. Pre-Approval for Recovery Facilities Managing Amber-List
Wastes
d. Return or Re-Export of Shipments
2. Unlisted Wastes
D. Tracking Documents
1. Routing of Tracking Document
E. Contracts
F. Importers
1. Definition
2. Requirements
a. Notification of Receipt
b. Pre-Approval of U.S. Recovery Facilities
G. Reporting and Recordkeeping
IV. OECD Waste Lists and Relationship to RCRA
A. Relationship of OECD Wastes and RCRA Hazardous Wastes
B. Status of Specific RCRA Hazardous Wastes
1. Definitions of Wastes Subject to National Procedures
2. Exemptions from the Definition of Solid Waste Definition
3. Applicability to Hazardous Waste Subject to Special Recycling
Standards
a. Scrap Metal
b. Lead-Acid Batteries
4. Wastes Excluded Under 40 CFR 261.4
5. Hazardous Wastes Exempted Under 40 CFR 261.5
6. Applicability to Universal Wastes
7. Non-RCRA Wastes and Other Regulatory Regimes
C. OECD Waste Lists Incorporated by Reference
V. Applicability in Authorized States
VI. Relationship to U.S. Bilateral Agreements
VII. Relationship to Other Programs
VIII. Future Rulemaking
IX. Regulatory Impact Analysis
[[Page 16291]]
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
1. Display of OMB Control Numbers
2. Burden Statement
Note: The Agency notes that previous, pre-publication versions
of this rule may inadvertently have been made available (e.g.
through the Internet and other on-line means). This rule, published
today in the Federal Register, supersedes any and all of these pre-
publication versions. This published rule constitutes the Agency's
final rule and reflects certain minor technical corrections that
were not contained in pre-publication versions.
On March 30, 1992, the Organization for Economic Cooperation and
Development (OECD) adopted Council Decision C(92)39 Concerning the
Control of Transfrontier Movements of Wastes Destined for Recovery
Operations (Decision). The United States, a member of OECD, supported
the Decision and has agreed to follow its terms, which, with respect to
RCRA wastes, EPA is implementing in today's Final Rule.
I. Authority
Authority to promulgate today's rule is found in sections 2002(a)
and 3017(a)(2) and (f) of the Solid Waste Disposal Act, as amended by
the Resource Conservation and Recovery Act (RCRA), and as amended by
the Hazardous and Solid Waste Amendments, 42 U.S.C. 6901 et seq.
Today's final rule is necessary to ensure implementation of the
Organization for Economic Cooperation and Development (OECD) Council
Decision C(92)39/FINAL Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations (the Decision).
The Decision was supported by the United States and imposes legally
binding commitments on the United States pursuant to Articles 5(a) and
6(2) of the OECD Convention, 12 U.S.T. 1728. The Decision and today's
rule implementing the Decision also will ensure that the import and
export of RCRA hazardous waste destined for recovery, between the
United States and those OECD countries that are Parties to the Basel
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal, may proceed even though the United States is
not yet a Party to the Basel Convention.1
---------------------------------------------------------------------------
\1\ OECD member countries consist of Australia, Austria,
Belgium, Canada, Denmark, Finland, France, Germany, Greece, Iceland,
Ireland, Italy, Japan, Luxembourg, the Netherlands, New Zealand,
Norway, Portugal, Spain, Sweden, Switzerland, Turkey, the United
Kingdom, and the United States. Mexico joined the OECD in June 1994.
---------------------------------------------------------------------------
The Basel Convention entered into force on May 5, 1992, for the
twenty countries that ratified it by that date. Since then, a number of
other countries have also ratified. The Convention prohibits trade in
Basel-covered wastes between parties and non-parties, unless a
bilateral, multilateral, or regional agreement or arrangement exists in
accordance with Article 11 of the Convention. The Decision, which
entered into force before May 5, 1992, satisfies the requirements of
Article 11 of the Basel Convention because it is a pre-existing
multilateral agreement compatible with the environmentally sound
management of wastes as required by the Convention. Therefore, today's
promulgation of Subpart H as part of the RCRA hazardous waste export
and import regulations, which is necessary to implement the Decision,
will make it possible for persons within the United States to continue
exporting and importing Basel-covered RCRA hazardous waste for recovery
within the OECD, even if other OECD countries are Parties to the Basel
Convention. Additionally, today's rule will facilitate harmonization of
U.S. regulations with European Union regulations on waste exports and
imports, which went into effect on May 6, 1994. Future legislative and
regulatory actions will be needed to more fully implement this
Decision.
A. Good Cause Exception to Notice and Comment Requirement
The Decision sets out very specific requirements for shipments of
hazardous waste destined for recovery. EPA is implementing language
that essentially mirrors the Decision in order to establish certain new
requirements that will be enforceable against importers and exporters
[EPA is making only minimal, nonsubstantive changes to the OECD
language in order to conform today's rule to existing RCRA rules (e.g.,
substituting the RCRA-defined term ``transporter'' for the term
``carrier'' used in the Decision)]. EPA is promulgating these rules
without first providing notice and opportunity to comment. Under the
Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), an agency may
forgo notice and comment in promulgating a rule when, according to the
APA, the agency for good cause finds (and incorporates the finding and
a brief statement of reasons for that finding into the rules issued)
that notice and public comment procedures are impracticable,
unnecessary, or contrary to the public interest. For the reasons set
forth below, EPA believes it has good cause to find that notice and
comment would be unnecessary and contrary to the public interest and
therefore is not required by the APA.
EPA finds that notice and comment procedures are unnecessary in
connection with the promulgation of today's rule because EPA is
precluded from modifying the rule in any meaningful way in response to
public comment. The requirement to implement this Decision virtually as
written derives from the following.
First, the United States has entered into a legally binding
commitment with the other OECD countries to implement the Decision
virtually as written. Accordingly, today's rulemaking is analogous to a
codification of statutory requirements, in which an agency assumes the
ministerial, nondiscretionary functions of translating requirements to
regulatory form [see United Technologies Corp. v. EPA, 821 F.2d 714,
720 (D.C. Cir. 1987) (finding that EPA had good cause to omit notice
and comment for a rule codifying portions of the 1984 amendments to
RCRA); Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d
1282, 1291 (D.C. Cir. 1982) (finding orders implementing statutory
waiver were nondiscretionary acts required by such waiver and that
notice and comment procedures were unnecessary and possibly contrary to
the public interest ``given the expense that would have been involved
in the futile gesture'')]. Although the Decision is neither a statute
nor a court order and imposes no requirements directly on U.S. persons,
the U.S. Department of State has determined that the Decision is an
international agreement creating binding commitments on the United
States under the terms of the OECD Convention. By consenting to the
Decision, the United States Government has agreed to promulgate
regulations necessary to ensure that the United States can uphold the
agreement. Furthermore, EPA has determined that no statutory change to
the Resource Conservation and Recovery Act (RCRA) is needed because
RCRA currently authorizes EPA to promulgate rules governing imports and
exports of hazardous waste, and contains adequate authority to
promulgate the requirements of the Decision.
Second, today's rule cannot deviate materially from the Decision
because, as a practical matter, other OECD countries may refuse to
accept U.S. shipments of waste for recycling that do not conform to the
procedures agreed to in the Decision. Such countries also may refuse to
allow wastes to be shipped to the U.S. if the U.S. cannot carry out its
duties as specified in the Decision. Deviation from the regulatory
scheme
[[Page 16292]]
articulated in the Decision in response to comments might preclude the
U.S. from implementing the Decision and therefore from satisfying its
international commitments.
Third, EPA must implement the Decision virtually as written because
modifications could defeat the goal of achieving an internationally
consistent regime to control the import and export of hazardous and
other wastes destined for recovery. EPA believes that parallel
implementation of the Decision within the U.S. and other OECD countries
is crucial to ensuring that the import and export of wastes destined
for recovery proceed in accordance with an internationally integrated
regime. Without the uniform implementation of the controls it
prescribes, an internationally consistent regime is not possible, and
many of the environmental benefits of the Decision (and the Basel
Convention) will be lost.
EPA also believes that it has good cause to find that prior notice
and an opportunity to comment would not serve the public interest. As
noted above, the movement of RCRA hazardous wastes destined for
recovery could be halted between the United States and the OECD
countries, particularly those that are parties to the Basel Convention,
if the United States modified the regulations in response to comment
such that the regulations failed to conform to the OECD Decision. EPA
believes that the continued movement and recovery of such wastes is
environmentally and economically beneficial. The United States,
therefore, encourages the environmentally sound recovery of wastes,
particularly hazardous wastes, as an alternative to disposal [see,
e.g., 42 U.S.C. 6902(a)(6), 6935(a), 6941a; 42 U.S.C. 9621(b)]. EPA
believes that the import and export of wastes among OECD countries for
purposes of recovery serves the public interest by making waste
management facilities in the OECD available to waste generators in the
U.S. and other OECD countries, thereby providing additional assurance
that wastes amenable to recovery operations will be managed in an
environmentally sound manner. The United States' failure to implement
the Decision in the form approved by the OECD countries could thwart
this objective.
In further support of its finding that the public interest is not
well served by the allowance for comment on this rulemaking, EPA also
notes that the regulatory burdens of this rule flow from the Decision
itself and are not materially affected by the promulgation of today's
rule. Because a number of OECD countries to date have fully implemented
the Decision, many U.S. importers and exporters of wastes destined for
recovery who seek to trade with OECD countries in effect already are
subject to the requirements of the Decision through those countries'
controls on their imports and exports. For example, these countries may
already require, as a condition of authorizing the shipment, that U.S.
participants adhere to the Decision's contracting or notice
requirements, even though those participants are not yet required to do
so under U.S. law. Thus, it is the implementation of the Decision by
other OECD countries, rather than the implementation of today's rule,
that has the most profound effect on the regulated community. Because
today's rule merely formalizes the existing regulatory framework to
which the regulated community is already subject, its promulgation
without notice and comment does not detrimentally affect those persons
[see National Helium Corp. v. Federal Energy Administration, 569 F.2d
1137, 1146 (Temp. Emer. Ct. App. 1978)]. Indeed, as noted above,
today's rule ameliorates the effects of foreign laws on U.S. persons by
making it possible for RCRA hazardous waste destined for recovery to
move between the U.S. and other OECD countries without being stopped or
rejected for failure to conform to the Decision. Finally, where EPA
believes the OECD Decision is open to interpretation and affords EPA
some flexibility in interpreting and implementing its requirements, EPA
remains free to initiate a separate rulemaking process on those issues,
following all appropriate notice and comment procedures.
For the reasons set forth above, EPA believes that it has good
cause to find that implementation of notice and comment procedures for
today's rule would be unnecessary and contrary to the public interest,
and therefore is not required under 5 U.S.C. 553(b)(B) to initiate a
comment period.
B. Effective Date
Section 3010(b) of RCRA requires EPA to set the effective date for
rules promulgated under Subtitle C of RCRA at six months after the date
of promulgation unless (1) the regulated community does not need six
months to come into compliance; (2) the regulation responds to an
emergency; or (3) there is other good cause. EPA believes that the
regulated community will not need more than 90 days to become familiar
with today's rule and to begin implementing its requirements because
the new requirements refer primarily to the notices and consents that
are already required under existing law as a condition to the import or
export of the wastes destined for recovery. Moreover, EPA believes that
the regulated community is capable of, and indeed has an interest in,
immediate compliance with the new rule in order to continue to be able
to import and export wastes subject to the Decision, since most OECD
countries have already revised their regulations to incorporate the
Decision's requirements. EPA also believes it has good cause to make
this rule effective 90 days from publication, for the reasons set forth
above in connection with the APA's public notice requirement.
Therefore, EPA concludes that the six month effective date provision of
RCRA 3010(b) does not apply.
II. Background
A. History of the OECD and Development of the Council Decision C(92)39/
Final
The OECD was chartered to assist member countries in achieving high
economic growth, employment, and a rising standard of living while
ensuring that human health and the environment are protected. Presently
there are 25 member countries of the OECD: Australia, Austria, Belgium,
Canada, Denmark, Finland, France, Germany, Greece, Iceland, Ireland,
Italy, Japan, Luxembourg, Mexico, Netherlands, New Zealand, Norway,
Portugal, Spain, Sweden, Switzerland, Turkey, the United Kingdom, and
the United States.
The OECD was the first international organization to establish a
working group to analyze issues relating to transfrontier movements of
hazardous waste. In 1974, the OECD Environment Policy Committee, which
guides all OECD work involving environmental matters, created the Waste
Management Policy Group (WMPG), which includes government officials
responsible for controlling waste management in their respective member
countries.
In 1981, the WMPG began to prepare guidelines to control
transfrontier movements of hazardous waste. Thereafter, because some
members (including the United States) enacted legislation controlling
transfrontier shipments of hazardous waste, the OECD's primary mission
was to work toward harmonization of controls among the member
countries.
Much of the OECD's early work, including lists identifying wastes
to be covered by an international agreement controlling transfrontier
waste movements, was adopted by the United Nations Environment
Programme (UNEP) and incorporated into the Basel
[[Page 16293]]
Convention on the Control of Transboundary Movements of Hazardous
Wastes and Their Disposal (Basel Convention). More detailed discussion
of the Basel Convention can be found in the Federal Register at 57 FR
20602 (May 13, 1992).
Following completion of the Basel Convention and a 1991 OECD
Council Decision on wastes, an Advisory Panel to the OECD's Waste
Management Policy Group was chartered in January 1991. Its purpose was
to study whether a streamlined set of procedural notice and consent
requirements could be agreed upon by member countries for transfrontier
movements of waste destined for recovery. The panel developed a
graduated control system and lists of covered wastes (green, amber, and
red). The proposed system was presented to the WMPG as a draft Decision
in November 1991, for submission to the OECD Environment Policy
Committee. In December 1991, the Environment Policy Committee returned
the draft Decision to the WMPG for further refinement. A month later,
the WMPG revised the Decision, and through the Environment Policy
Committee, submitted the Decision document to the OECD Council. On
March 30, 1992, the Council adopted the Decision, with only Japan
abstaining. Japan later adopted and began implementing the Decision in
December 1993.
B. Relationship to the Basel Convention
The Basel Convention is an international agreement controlling the
transfrontier movement of hazardous and other wastes. While requiring
movements between Basel Parties to be managed in an environmentally
sound manner, it prohibits movements involving Parties and non-Parties
absent a separate bilateral, multilateral, or regional agreement or
arrangement that is compatible with the aims and purposes of the
Convention (for pre-existing agreements) or that contains provisions
that do not derogate from the environmentally sound management required
by the Basel Convention (for newly negotiated agreements). Such
agreements are recognized under Article 11(2) of the Convention. As a
pre-existing arrangement under Article 11(2), the Decision averts
potential trade disruptions between members of the OECD that are
Parties to the Basel Convention and members that are not.
The U.S. will not become a Party to the Basel Convention until it
ratifies the Convention. In order to ratify the Convention, the U.S.
must have additional statutory authority to implement its terms. Once
the U.S. has the necessary authority, the export and import regulations
at 40 CFR 262 Subparts E and F will be modified.
Exports and imports among OECD countries of waste destined for
recovery will be governed by the procedures set forth in today's
regulations and by any future regulatory changes made to implement the
Decision (including future changes to the Decision).\2\ Exports and
imports of RCRA hazardous wastes within the OECD for purposes other
than recycling (e.g., disposal or treatment) will continue to be
subject to the current RCRA export and import regulations.
---------------------------------------------------------------------------
\2\ For example, today's regulations implementing the OECD
Decision will be modified once EPA obtains legislative authority to
control the transfrontier movements of household wastes, which
appear on the OECD amber list.
---------------------------------------------------------------------------
C. Summary of Decision
OECD Council Decision C(92)39/FINAL establishes a graduated control
system for the transfrontier movement of wastes destined for recovery
operations. The Decision reflects recognition by the OECD of the
importance of transboundary movement of wastes for recovery, because
highly specialized recovery facilities are not found in every country
and because OECD generally supports a waste management hierarchy in
which recovery is more desirable than final disposal. The goal of the
negotiations was to ensure that recovery of materials from wastes could
continue internationally, provided the shipments were managed in an
environmentally sound and efficient manner.
The OECD has developed draft guidance on environmentally sound
recovery practices for particular wastes. In addition, some of the
member countries are actively engaged in the development of technical
guidelines for environmentally sound management of hazardous and other
wastes under the Basel Convention. To date, seven technical guidelines
on management of specific waste streams and waste management practices
have been adopted by the Basel Parties, along with a framework document
outlining the elements to be included in the technical guidelines. They
are: hazardous waste from the production and use of organic solvents;
waste oils from petroleum origins and sources; wastes comprising or
containing PCBs, PCTs, and PBBs; wastes collected from households;
specially engineered landfills, incineration on land, and used oil re-
refining or other re-uses of previously used oil. The purpose of the
technical guidelines is to assist developing countries in becoming
self-sufficient in waste management as they industrialize and develop
their economies. The Basel Parties have agreed to develop other
technical guidelines as resources permit.
The Decision establishes a range of different procedural controls
depending on whether a waste appears on the Decision's green, amber, or
red list (or no list, in which case hazardous wastes are regulated as
red-list wastes). Green-list wastes require no controls beyond those
typically imposed in normal international commercial shipments. Amber-
list wastes, which are considered hazardous, may be shipped for
recovery under one of three arrangements: (1) movement pursuant to a
shipment-by-shipment written notification by the export notifier or
competent authority of his government to the competent authorities of
OECD concerned countries (i.e., exporting, importing and transit), and
written or tacit consent from the relevant OECD importing and transit
countries; (2) movement pursuant to a general notification and written
or tacit consent from the competent authorities of the relevant OECD
importing and transit countries; or (3) movement to facilities pre-
approved by the importing country to accept that waste type which
requires only prior written notification to the competent authorities
of the concerned countries. In all cases, amber-list wastes must be
accompanied by a tracking document and the waste must be shipped under
a legally binding contract, chain of contracts, or equivalent
arrangements if the notifier and receiving facility are part of the
same legal or corporate entity. Red-list wastes are handled in the same
manner as amber-list wastes except that prior written consent from the
importing and transit countries is always required and no facilities
are pre-approved to accept these wastes.
In addition to assigning specific wastes to the green, amber or red
lists, the Decision allows for each member country to employ its
``national procedures'' to determine whether a waste is considered
hazardous under its laws and regulations, and therefore whether it is
subject to amber or red controls. Thus, as discussed in more detail
below, a waste that is not hazardous as determined by national
procedures will not be subject to amber or red controls regardless of
which list it appears on, a green-list waste that is considered
hazardous will be subject to amber or red controls, while an unlisted
waste considered hazardous as determined by national procedures will be
subject to red controls (see Sec. II. C. 2. d.)
[[Page 16294]]
1. Waste Lists
a. Green, Amber, and Red Lists. The waste lists (green, amber, and
red) are intended to be comprehensive, i.e., any waste subject to
transfrontier movement should be identified on one of three lists.
Wastes identified on the green list are presumed to be non-hazardous
while amber-list and red-list wastes are presumed to be hazardous.
However, transfrontier movements of red-list wastes for recovery are
presumed by the OECD to pose a greater potential risk than amber-list
wastes because of their hazardous properties or because there is less
experience in recovery of red wastes as compared to amber wastes. The
Decision allows a country to use its national procedures to determine
which wastes are hazardous.
b. Unlisted Wastes. Although the green, amber, and red lists of
wastes are intended to be comprehensive, it is possible that there are
wastes moving internationally for recovery that are not on any list.
The WMPG developed the Review Mechanism in accordance with the General
Provisions section of the Decision, to evaluate and assign unlisted
waste to an appropriate list. The Review Mechanism is administered by
an OECD group known as the Working Party. Under the Review Mechanism,
the Working Party forwards recommendations to the OECD Council through
the WMPG, the Pollution Prevention and Control Group, and the
Environment Policy Committee. The Working Party also identifies other
implementation issues that should be addressed under the Review
Mechanism.
In implementing the Review Mechanism, the Working Party uses the
criteria in Annex 2 of the OECD Decision to evaluate wastes and to
formulate recommendations regarding their placement on a specific list.
The criteria are divided into two major categories: waste properties
(e.g., degree of hazard, physical state) and management practices
(e.g., handling prior to recovery). The terms of reference for the
Review Mechanism require that changes to the waste lists be proposed or
supported by at least one member country and circulated to all members
at least six weeks prior to convening the Review Mechanism's Working
Party.
Persons who export hazardous wastes from the U.S. to OECD countries
for recovery are encouraged to identify hazardous wastes which are not
currently identified on any list and to provide EPA with waste-specific
information responsive to the questions in Annex 2 of the Decision.
This information will be evaluated by the Agency prior to submission to
the Review Mechanism for consideration. Hence, it is critical that
complete information be provided to EPA at least two months (and
preferably earlier) prior to scheduled meetings of the Working Party to
conduct the Review Mechanism process. Until such time as an unlisted
waste is placed on a particular list pursuant to the Review Mechanism,
the Decision provides that unlisted wastes considered hazardous under
national procedures move under red controls and that unlisted waste
considered non-hazardous under national procedures move under green
controls.
c. National Procedures. The OECD amber and red waste lists are
quite broad, consisting of many generic categories which may include
both hazardous and non-hazardous wastes. The Decision therefore allows
a country to determine if a waste on an OECD list is hazardous based on
its ``national procedures'' or ``national tests.'' During the
negotiations of the Decision, the U.S. interpreted national procedures
to include both hazardous waste testing and regulatory determinations.
For purposes of today's rule, EPA has determined that a waste is
hazardous under U.S. ``national procedures'' if the waste meets the
following requirements under RCRA: (a) meets the Federal definition of
hazardous waste in 40 CFR 261.3; and (b) is subject to either the
Federal hazardous waste manifesting requirements in 40 CFR 262, or to
the universal waste management standards of 40 CFR 273, or to State
requirements analogous to Part 273. (As stated earlier, EPA may, in the
future, identify wastes under other statutes that are subject to the
OECD Decision). [Note: For purposes of brevity and convenience, only
the manifest criterion (and not the universal waste criteria) will be
mentioned specifically throughout the preamble as to whether EPA
considers a waste to be a hazardous waste and therefore subject to
today's rule. However, we emphasize that universal wastes (which are
considered hazardous wastes but are not subject to manifest
requirements) are also subject to today's rule. Further discussion of
universal wastes can be found in section IV. B. 6.]. This
interpretation is consistent with the Agency's 1986 export notification
policy [see 51 FR 28664 (Aug. 8, 1986)], in which the Agency concluded
that wastes that are not subject to manifesting domestically do not
pose a risk warranting export notification. Further discussion of EPA's
interpretation of national procedures as they apply to recyclable waste
can be found in section IV. B. 1.
2. Control Procedures
The specific control procedures required for the export or import
of wastes for recovery within the OECD depend on whether the relevant
exporting, importing and transit countries consider a waste to be
subject to green, amber or red controls under their national
procedures. Significantly, a particular waste's placement on one of the
OECD lists is not determinative of the level of control applicable to
the transfrontier shipment of such a waste for recovery. The lists
represent an attempt to reach a consensus among the member countries on
the level of control applicable to certain types of wastes; they do not
supersede a country's authority to apply different levels of control
for a particular waste pursuant to its national procedures.
Accordingly, although a waste's placement on the OECD green, amber and
red waste lists may indicate the applicable level of control in most
cases, exporters and importers must determine which level of control
applies to a particular shipment of waste under the national procedures
of each affected country.
All waste shipments that are subject to today's final rule must be
sent to facilities that are allowed under the applicable laws of the
importing country to receive and perform recovery operations on the
wastes. In addition, the Decision requires that all transfrontier
movements of waste within the OECD comply with the provisions of
applicable international transport agreements.\3\ Any transit of wastes
through a non-member country is subject to all applicable international
and national laws and regulations.
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\3\ These international agreements include, but are not limited
to, the Chicago Convention (1944), ADR (1957), ADNR (1970), MARPOL
Convention (1973/1978), SOLAS Convention (1974), IMDG Code (1985),
COTIF (1985), and RID (1985). See Appendix 1 of Council Decision
C(92)39/Final in Appendix 3 of today's preamble.
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a. Green-List Wastes. Wastes on the green list that are exported
from the U.S. to OECD countries or imported to the U.S. from such
countries for recovery are subject to all existing controls normally
applied to commercial transactions, but are not subject to any
additional controls under the Decision. Such controls may include bills
of lading, customs declarations, international insurance, or other
controls.
However, if a green-list waste is ``sufficiently contaminated'' (as
described below) to meet the criteria for inclusion on the amber or red
lists, then
[[Page 16295]]
shipment must be managed in accordance with the applicable amber-list
or red-list controls. For the purpose of implementing the Decision, EPA
is interpreting ``sufficiently contaminated'' to mean a green-list
waste that is considered hazardous under U.S. national procedures
(i.e., waste or waste mixture meets the Federal definition of hazardous
waste in 40 CFR 261.3 and is subject to Federal manifest requirements).
Such wastes will be subject to amber-list controls, unless the reason
for the contamination is mixture with a red-list waste or with a
hazardous waste that is not found on any list. In those cases, the
waste will be subject to red-list controls.
As will be discussed further, the Decision acknowledges that
certain green-list wastes may be subject to amber-list or red-list
controls by certain countries, in accordance with their domestic
legislation and the rules of international law.
b. Amber-List Wastes. Shipments of amber-list wastes destined for
recovery within the OECD are subject to the amber-list control system.
If, however, the waste is sufficiently contaminated with other wastes
subject to red controls (i.e., red-list wastes or unlisted hazardous
wastes) the waste then becomes subject to the red control regime. In
addition, such waste could potentially be subject to other laws and
regulations.
Amber controls require that a shipment of amber-list waste move
pursuant to a legally binding written contract or chain of contracts
(or an equivalent arrangement if the notifier and the receiving
facility are part of the same corporate or legal entity). The contract
must include a provision for alternate management or re-export of the
waste if it cannot be managed as planned and must include financial
guarantees for such alternate management if so required by the
competent authorities of any concerned country, in accordance with
applicable national or international laws. The U.S. does not require
any financial guarantees for international waste shipments at this
time.
Prior to the proposed export, the notifier must provide written
notification to the competent authorities of all concerned countries to
allow them the opportunity to deny the shipment. As defined in
Sec. 262.81(g) of today's rule, the notifier is the person under the
jurisdiction of the exporting country who has, or will have at the time
the transfrontier movement commences, possession or other forms of
legal control of the wastes and who proposes their transfrontier
movement for the ultimate purpose of submitting them to recovery
operations (see section III. B. 9.). In certain cases, a general
notification will be permissible. The competent authority of the
exporting country may elect to perform the notification duties. EPA is
the United States' competent authority for OECD purposes. Therefore,
under today's rule, the notifier will provide written notification to
EPA for exports from the U.S. of RCRA hazardous wastes subject to
amber-list controls, and EPA will in turn notify the competent
authorities of all concerned OECD countries. The competent authority of
the importing country must issue an Acknowledgement of Receipt to the
notifier and to the competent authorities of the exporting and transit
countries within three working days of receiving the export notice. For
the purposes of this rule, ``transit country'' refers only to a transit
country that is a member of the OECD and is a Party to the Decision,
including Canada [see section III. B. 4. of today's preamble and
Sec. 262.81(d)]. The competent authorities of the importing and transit
countries have 30 days to consent or object to the shipment. However,
if the competent authorities of the importing and transit countries do
not notify the notifier in writing within 30 days of issuance of the
Acknowledgement of Receipt that the request has been denied or that
additional information is required, then tacit consent is deemed to be
granted, and the shipment may proceed as specified in the notification.
If a transit country denies consent, the proposed movement must be
rerouted and a new notification must be submitted to EPA to forward to
the new transit country. The movement may not commence until that OECD
country tacitly or expressly consents to the movement.\4\
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\4\ If the transit country is not an OECD member country, EPA's
regulations at Part 262, Subpart E apply. Under those regulations,
EPA will provide notice to such country of the proposed waste
movement, although under Subpart E consent of the non-OECD transit
country is not required. However, EPA would transmit any response
from the transit country to the exporter.
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The competent authority of the importing country may also allow a
notifier to submit a general notification for the shipment of amber-
list waste when that type of waste is to be sent periodically by the
same notifier to the same facility. The notification lasts up to one
year and may be renewed. In addition, OECD countries may designate
facilities that they have pre-approved for receipt of amber wastes (see
section III. C. 1. c.). When the U.S. receives notice from the OECD
that specific facilities are pre-approved by the competent authority of
a foreign government, EPA will undertake to make that information
available to U.S. notifiers. At the present time, there are no U.S.
facilities pre-approved for receipt of amber wastes (see section VIII).
Waste shipments must be accompanied by a tracking document. The
WMPG developed forms in March 1994 which are recommended to be used for
notification and tracking purposes.\5\ These forms may be used by U.S.
notifiers but will not be required until approved by OMB and codified
into the regulations. For hazardous wastes exported from or imported to
the United States, a uniform hazardous waste manifest also must
accompany the waste shipment while it is in the jurisdiction of the
U.S. (see section III. D.).
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\5\ A copy of the recommended OECD notification and tracking
forms can be found in the docket for this rule.
---------------------------------------------------------------------------
c. Red-List Wastes. The requirements for red-list wastes are
similar to the requirements for amber-list wastes with one very
important exception: tacit consent is not permissible. The red controls
include: a written contract, chain of contracts, or equivalent
arrangement where the notifier and recovery facility are part of the
same legal or corporate entity; written notification to the competent
authorities of the concerned countries;\6\ prior consent of the
importing and transit countries; and a tracking document accompanying
the shipment. However, unlike amber-list wastes, red-list wastes cannot
be shipped unless all necessary consents are obtained in writing. (See
section III. C, D, & E for additional information).
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\6\ Note that instead of the notifier, the competent authority
of the exporting country may, in accordance with domestic laws,
decide to transmit this notification to importing and transit
countries.
---------------------------------------------------------------------------
It is important to note that, within the U.S., in addition to the
OECD requirements, some red-list wastes also may be subject to
requirements under other legal authorities, such as regulations
promulgated under the Toxic Substances Control Act (e.g., PCB
regulatory controls promulgated in 40 CFR Part 760; see section IV. B.
7. for additional information).
d. When Wastes are Not Considered Hazardous by All Concerned
Countries. There may be cases in which the concerned countries (i.e.,
exporting, importing, and transit) disagree over the level of control
to be assigned to a waste on the OECD lists.
The Decision provides guidance in section II(4) for cases where the
[[Page 16296]]
exporting country, using its national procedures, does not consider a
waste on the amber or red OECD lists to be hazardous, while the
importing country does. In such cases, the importing country shall
assume all obligations assigned to the exporting country in sections IV
or V of the Decision, as applicable, particularly with regard to
notification requirements. This means that the competent authority of
the importing country or the importer would notify the competent
authorities of the exporting country, for information purposes, and
transit countries, for purposes of obtaining consent, prior to the
proposed import. If the exporting country does not consider the waste
to be hazardous under its national procedures, then no obligations
under the Decision rest on the exporter and the exporting country. For
example, if the U.S. does not consider a waste to be hazardous, today's
rule imposes no obligations on the U.S. exporter. However, the U.S.
exporter may need to provide information to the importer (e.g.,
consignee, or owner or operator of the recovery facility) so that the
importer can supply the competent authorities of the concerned
countries with the necessary notification information. This information
exchange requirement may be worked out in the contract, chain of
contracts, or equivalent arrangement for parties of the same legal or
corporate entity, so U.S. waste handlers should anticipate such
requests from waste trading partners in other OECD nations. Requests
may go as far as requiring the U.S. exporter to notify all competent
authorities in the concerned countries for wastes not considered
hazardous in the U.S.
In cases where only the exporting country considers the amber- or
red-list waste to be hazardous, the country's competent authority or
exporter would notify and seek consent of the importing and transit
countries prior to shipment in accordance with the appropriate amber-
list or red-list controls. Although these countries do not consider the
waste to be hazardous using their national procedures, the consent of
the importing and transit countries is still necessary under the laws
of the exporting country. The importer and exporter would also be
required to comply with any contractual requirements imposed by the
exporting country.
The Decision also recognizes in section II(6) the right of OECD
countries to require amber-list or red-list controls for wastes
identified on the green list, in accordance with domestic legislation
and international law, for the purpose of protecting human health and
the environment. OECD countries are required to inform the Secretariat
of such controls. For example, Austria has stated that it subjects some
green-list wastes and all amber-list wastes to red-list controls, while
Sweden subjects some green-list wastes to amber- or red-list controls.
Under today's rule, the U.S. requires any green-list wastes that are
hazardous under RCRA and subject to manifesting requirements to move
under amber controls. In these cases, the wastes are subject to the
country's controls only while they are in that country's jurisdiction.
Of course, the exporter or importer may, as a contractual matter, have
to comply with amber- or red-list control requirements before the waste
enters the jurisdiction of the country that considers the waste to be
hazardous.
The Decision does not address cases where the exporting and
importing countries consider a waste to be non-hazardous under their
national procedures but the transit nation does consider it hazardous.
In such situations, the Agency views the transit nation taking on
similar responsibilities as the importing nation in situations when an
importing nation is the only country to consider a particular waste
hazardous (discussed above). That is, the transit country shall assume
the obligations of the exporting and importing countries. In practice,
this may mean that waste handlers in transit nations may need to
request information from U.S. waste exporters through contractual
arrangements in order to seek and obtain consent from the competent
authorities of the transit countries.
e. Availability of Waste Lists. The current waste lists are
available in the RCRA docket under the number listed above. The
regulated community is encouraged to periodically check the docket for
the latest lists.
III. Specific OECD Requirements and Relationship to RCRA
A. Differences Between the OECD Decision and Today's Rule
Today's regulations implementing the Decision are applicable only
to hazardous wastes destined for recovery that (1) are hazardous under
RCRA and subject to manifesting requirements, and (2) are sent to or
received from an OECD country other than Canada and Mexico. All exports
and imports of hazardous waste to or from a non-OECD country, to Canada
or Mexico (see Sec. VI), or to OECD countries that are not Basel
Parties for the purpose of treatment (other than recovery) or final
disposal must be in compliance with current regulations discussed
immediately below.
Current RCRA regulations differ from the terms of the Decision
being implemented today. A summary of differences between the two are
shown in Table 1 for comparative purposes only and should not be used
as a substitute for today's regulations.
EPA's current export regulations are codified in 40 CFR 262,
Subpart E. The requirements include: notification to EPA at least 60
days prior to export so that EPA can notify the importing and transit
countries, prior written consent by the importing country, a copy of
the EPA Acknowledgement of Consent attached to the manifest
accompanying each shipment, and movement of the shipment in conformance
with the terms of such consent. The requirements in Part 262 also
include special manifest provisions, exception reporting, annual
reporting, and recordkeeping. Special transporter requirements are in
40 CFR 263.
40 CFR part 262, Subpart F, requires that U.S. hazardous waste
importers comply with the requirements for generators (40 CFR 262) and
specifies that the importer must indicate the name and address of the
foreign generator on the manifest. In addition, 40 CFR 264.12 and
265.12 require any U.S. hazardous waste management facility subject to
Parts 264 or 265 that arranges for the receipt of hazardous waste from
a foreign source to provide a one-time notification to EPA at least 4
weeks prior to receiving the waste. EPA also reminds importers that
they must comply with the land disposal restrictions once the wastes
enter the United States (see 40 CFR Part 268).
[[Page 16297]]
Table 1.--Summary of Relationship Between Current RCRA Export/Import Regulations and Regulations Implementing
the OECD Decision
----------------------------------------------------------------------------------------------------------------
Current RCRA regulation (40 Today's regulations implementing OECD decision
Issue CFR 262.50-262.60) (40 CFR 262.80-262.89)
----------------------------------------------------------------------------------------------------------------
General:
Applicability.................. Governs all imports and Scope of wastes covered same as current
exports of RCRA hazardous regulations. However, new Subpart H applies
waste subject to Federal only to waste imports and exports for
manifesting requirements recovery between U.S. and OECD countries,
in 40 CFR Part 262 excluding Canada and Mexico.\1\ For purposes
regardless of final of this rule, procedural controls apply to
disposition. amber-list, red-list, and unlisted wastes
that are RCRA hazardous and manifested. Green-
list wastes are exempt unless hazardous under
U.S. national procedures.
Imports:
Notification................... One-time advance notice per Current requirement for TSDs for one
waste stream per foreign notification maintained. In addition, EPA
source required for will receive notice from foreign exporter or
treatment, storage, or competent authority of his country, per the
disposal (TSD) facilities Decision.
regulated under Part 264/
265.
Approval to import............. None required \2\.......... For import to occur, EPA must give tacit or
written consent for amber-list wastes and
written consent for red-list wastes. Written
consent and objections must be sent to
notifier and competent authorities of
concerned countries.
Tracking....................... A uniform hazardous waste Same as current regulations, plus additional
manifest is required from OECD tracking information required. Tracking
the time the shipment document must stay with the shipment until
enters the U.S. until it received by recovery facility. Recovery
reaches the designated facilities under Parts 264/265 must return
facility. signed copy to notifier and competent
authorities of concerned countries.
Financial assurance for None required.............. None required under U.S. law for U.S.
alternate management. entities. If foreign exporter's government
requires such assurance, foreign notifier may
require U.S. importer to have financial
assurance as a condition of their contract.
Contracts...................... None required.............. A legally binding contract, chain of
contracts, or equivalent arrangement between
parties owned by the same corporate entity,
specifying each responsible party handling
shipments of amber-list or red-list wastes
and the responsible party in case alternate
management, re-exportation or re-importation
is necessary because arrangements for the
shipment or recovery operation cannot be
carried out as foreseen. Additional
provisions apply to recognized traders as
defined in Sec. 262.81(i).
Exports:
Notification................... Notification to EPA at Same as current regulations with additional
least 60 days prior to information requirements, except that
initial shipment is notification to EPA must occur at least 45
required; notice then days prior to initial shipment; may use OECD-
transmitted to importing recommended notification form; EPA will
and transit countries. notify competent authorities of importing and
Notice may cover multiple transit countries.
shipments for up to 12
months.
Approval of export by competent The importing country must For amber-list wastes, consent presumed 30
authority of importing country. consent to the export. EPA days from the date the competent authority of
notifies exporter by the importing country acknowledges receipt of
sending Acknowledgement of notification unless a denial or request for
Consent or objection. additional information is received; no
consent from importing country needed if
waste is destined for pre-approved recovery
facility, although prior notification is
required. For red-list wastes, written
consent is necessary to export.
Approval of export by competent None required. As a For amber-list wastes, consent is presumed 30
authority of transit country. practical matter, however, days from the date the competent authority of
since EPA transmits any the transit country acknowledges receipt of
response received from the notification unless a denial or request for
transit country, EPA additional information is received. For red-
expects that the exporter list wastes, written approval is necessary to
would reroute shipment if export. No consent is required from transit
the transit country countries that are not OECD members. As a
objects. practical matter, however, EPA expects that
the exporter would reroute shipment if the
transit country objects.
Tracking....................... Uniform hazardous waste Substantively same as current regulations,
manifest must accompany plus additional OECD tracking information
the shipment while in the required. OECD-recommended notification and
U.S and a copy must be tracking document or other paper supplying
left with Customs; EPA the required information may be used until
Acknowledgement of Consent OECD form approved by OMB and incorporated
also must be attached. into the regulations. Tracking document must
Exporter must receive stay with the shipment until received by
written confirmation of recovery facility. Recovery facility must
delivery to foreign return signed copy to export notifier and
consignee. competent authorities of concerned countries.
Financial assurance for None required.............. None required under U.S. law for U.S.
alternate management. entities. If foreign importing or transit
countries require such assurance, U.S.
exporters may be required to have financial
assurance as a condition of their contract or
face having proposed shipments denied.
Recordkeeping.................. Copies of manifests, The same as current requirements except that
notifications of intent to written consent from competent authorities of
export, EPA concerned countries is maintained in lieu of
Acknowledgments of EPA Acknowledgement of Consent.
Consent, exception
reports, and annual
reports must be maintained
for at least 3 years.
[[Page 16298]]
Reporting...................... Exporters must prepare and Same as current requirements.
submit an annual report
and exception reports to
EPA.
Contract....................... None required.............. A legally binding written contract, chain of
contracts, or equivalent arrangement between
parties of the same legal or corporate entity
specifying the name of each responsible
person handling shipments of amber-list or
red-list wastes and the responsible party in
case alternate management, re-exportation or
re-importation is necessary because
arrangements for the shipment or recovery
operation cannot be carried out as foreseen.
Additional provisions apply to recognized
traders as defined in Sec. 262.81(i).
----------------------------------------------------------------------------------------------------------------
\1\ Imports from and exports to Canada and Mexico are governed under the U.S./Canada bilateral agreement, the
U.S./Mexico bilateral agreement, and EPA's current regulations. These regulations include 40 CFR 262 Subparts
E and F, 40 CFR 264.12(a), and 265.12(a) in lieu of today's regulations.
\2\ For imports from Canada, the U.S./Canadian bilateral agreement requires notice and allows for tacit consent
if no response is lodged 30 days after the notice is received. For imports from Mexico, the U.S./Mexico
bilateral agreement requires notice, but does not allow for tacit consent.
B. Definitions
Many of the following definitions in the Decision are being
codified in today's rule. In some cases, the OECD definitions are
somewhat different than the current RCRA definitions. Where they are,
the differences are discussed. The definitions codified at 40 CFR
260.10 (e.g., Transporter, etc.). continue to apply to all terms not
defined in today's rule.
1. Competent Authorities
Competent Authorities means the regulatory authorities of concerned
countries having jurisdiction over transfrontier movements of wastes
destined for recovery operations.
The competent authority will be the agency or similar entity that
has authority over environmental or hazardous waste issues in the
receiving country. A list of the contacts for competent authorities of
OECD countries is provided in the docket for this rule. The competent
authority of the United States is the U.S. Environmental Protection
Agency. All notices and required information must be sent to the Office
of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW, Washington, DC 20460.
The words ``Attention: OECD Export Notification'' should be displayed
prominently on the envelope.
2. Concerned Countries
Concerned Countries means the exporting and importing OECD
countries and any OECD countries of transit.
The OECD countries subject to this Decision are: Australia,
Austria, Belgium, Canada,7 Denmark, Finland, France, Germany,
Greece, Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United
Kingdom, and the United States.8
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\7\ Although Canada is subject to the Decision, movements of
waste between the U.S. and Canada that otherwise would be governed
by the Decision will continue to be controlled by the U.S./Canada
bilateral agreement and EPA's current regulations.
\8\ Mexico joined the OECD in June 1994. Movements of waste
between the U.S. and Mexico will continue to be controlled by the
U.S./Mexico bilateral agreement and EPA's current regulations, until
such time as the U.S. and Mexico agree to switch to procedures under
the OECD Decision.
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3. Consignee
Consignee means the person to whom possession or other form of
legal control of the waste is assigned at the time the waste is
received in the importing country.
Currently there is a definition of ``consignee'' at 40 CFR 262.51,
which means the ultimate treatment, storage, or disposal facility in
the receiving country to which the hazardous waste will be sent. The
OECD's definition, however, refers to the first person to take physical
or legal custody of the waste. This is broader than the Agency's
definition in 40 CFR 262.51, but imposes no new obligations on
importers. A consignee could be a recognized trader, transporter,
storage facility operator, or recovery facility operator. The OECD
definition for consignee will be codified today for exports/imports of
hazardous wastes destined for recovery among OECD countries to replace
the current definition found at 40 CFR 262.51.
4. Country of Transit
Country of Transit means any OECD country other than the exporting
or importing country across which a transfrontier movement of wastes is
planned or takes place.
The Agency interprets this definition to mean the same as transit
country, which is currently codified at 40 CFR 262.51 except that, for
purposes of this Decision, it is limited to OECD countries as defined
at 40 CFR 262.58(a).
It also should be noted that the United States made a declaration
that a state is a transit state or ``country of transit'' within the
meaning of the Decision only if wastes are moved, or are planned to be
moved, through its inland waterways, inland waters, or land territory.
Thus, in the United States' view, the movement of waste subject to
Subpart H through an OECD country's territorial sea but not through its
inland waterways, inland waters, or land territory would not make that
country a transit country for the purposes of today's rule.
5. Exporting Country
Exporting Country means any OECD country from which a transfrontier
movement of wastes is planned or has commenced.
6. Generator
Generator means a person whose activities create wastes.
It is the Agency's interpretation that the current RCRA regulatory
definition of generator found at 40 CFR 260.10 is consistent with the
OECD definition. The RCRA definition states that a ``generator'' means
any person, by site, whose act or process produces hazardous waste
identified or listed in 40 CFR part 261 or whose act first causes a
hazardous waste to become subject to regulation. This is particularly
relevant with respect to section II(8) of the Decision, which provides
that a person who mixes two or more wastes,
[[Page 16299]]
or otherwise changes the physical or chemical characteristics of the
waste, thereby creating a new hazardous waste becomes the generator.
Such persons henceforth assume responsibility for compliance with the
generator duties under RCRA and applicable notifier provisions in
today's rule.
7. Importing Country
Importing Country means any OECD country to which a transfrontier
movement of wastes is planned or takes place for the purpose of
submitting the wastes to recovery operations therein.
8. International Waste Identification Code
International Waste Identification Code (``IWIC'') is the
classification system specified and described in OECD Council Decision
C(88)90(Final) of 27 May 1988.
Determining the International Waste Identification Code for a
particular waste requires the completion of a specified formula with
information provided in each of 6 Tables. Use of the IWIC is not
required by the Decision, and as a practical matter, the IWIC has not
been used by all OECD countries; therefore, the definition is not being
codified today.
9. Notifier
Notifier is the person under the jurisdiction of the exporting
country who has, or will have at the time the planned transfrontier
movement commences, possession or other forms of legal control of the
wastes and who proposes their transfrontier movement for the ultimate
purpose of submitting them to recovery operations.
When the U.S. is the exporting country, notifier means a person
domiciled in the U.S. The Agency recognizes that in different
situations recovery facilities, consignees, recognized traders, or
generators can act as notifiers. If a person is a notifier, he is also
a primary exporter under 40 CFR 262.51.
10. OECD Area
FR Doc. 96-8087 Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations
OECD Area means all land or marine areas under the national
jurisdiction of any OECD country. As used in these regulations, the
term OECD countries means OECD areas.
11. Person
Person means any natural or legal person whether public or private.
The Agency interprets this definition to be consistent with the
definition of ``person'' currently found at 40 CFR 260.10, which states
that a Person means an individual, trust, firm, joint stock company,
Federal Agency, corporation (including a government corporation),
partnership, association, State, municipality, commission, political
subdivision of a State, or any interstate body.
12. Recognized Trader
Recognized Trader means a person who, with appropriate
authorization of concerned countries, acts in the role of principal to
purchase and subsequently sell wastes; this person has legal control of
such wastes from time of purchase to time of sale; such a person may
act to arrange and facilitate transfrontier movements of wastes
destined for recovery operations.
Under the Decision and today's rule, recognized traders who take
physical or other forms of control (e.g., legal) of the waste may act
as notifiers, consignees or recovery facilities with all associated
responsibilities. As provided in Sec. 262.86 of today's rule, a
recognized trader who takes physical custody of a waste and conducts
recovery operations (including storage prior to recovery) is acting as
the owner or operator of a recovery facility and must be so authorized
in accordance with all applicable Federal, State, and local license or
permit requirements. There also may be cases where recognized traders
act as brokers for transfrontier movements of wastes that are not
considered hazardous under U.S. national procedures, but which are
considered hazardous by another OECD country. To conduct business in
that OECD country, the broker would need to comply with the provisions
of the Decision as implemented by the OECD country. The broker's
responsibilities would most likely be addressed in his contract with
his foreign business associates. Recognized traders should anticipate
requests regarding contract information in such cases.
13. Recovery Facility
Recovery Facility means an entity which, under applicable domestic
law, is operating or is authorized to operate in the importing country
to receive wastes and to perform recovery operations on them.
Any facility in the United States that is legally allowed to
operate, to receive wastes, and to perform recovery operations and that
conforms with any applicable regulations may meet this definition. This
includes recovery facilities that are not required to obtain a RCRA
permit. Manifested hazardous waste shipments must, however, be shipped
to a RCRA designated facility (authorized under 40 CFR Parts 264, 265,
or 266 to accept manifested hazardous waste). It is important to note
that such facilities are not relieved of any regulatory requirements
associated with discharges to air and/or water that may apply under the
Clean Air Act or the Clean Water Act.
14. Recovery Operations
Recovery Operations means activities leading to resource recovery,
recycling, reclamation, direct re-use or alternative uses as listed in
Table 2B of the Annex of OECD Council Decision C(88)90(Final) of 27 May
1988.
The Agency considers ``recovery operations'' to be consistent with
the 40 CFR 261.1 and 261.2 definitions for recycling and reclamation.
Note, however, that under 40 CFR 261.2, certain wastes that are
directly re-used and off-specification products that are reclaimed are
not solid wastes; thus, they are not subject to either current RCRA
regulations or the OECD requirements implemented today.
15. Transfrontier Movement
Transfrontier Movement means any shipment of wastes destined for
recovery operations from an area under the national jurisdiction of one
OECD country to an area under the national jurisdiction of another OECD
country.
The Agency is interpreting the phrase ``area of national
jurisdiction'' in the United States to mean the 50 States, the District
of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, and the Commonwealth of the Northern Mariana
Islands.
Note: The United States made a declaration that under
international law, notification or authorization of coastal states
is not required for passage through territorial seas and exclusive
economic zones (EEZs).
16. Wastes
OECD defines wastes in the OECD Decision on transfrontier movements
of hazardous waste C(88)90(Final) dated May 27, 1988, as materials
other than radioactive materials intended for disposal. ``Disposal'' is
defined in Table 2 of the same document to include typical disposal and
recovery operations. The list of recovery operations are included in
Sec. 262.81(k) of today's rule. In this rule, EPA interprets wastes to
include materials defined as solid and hazardous wastes in 40 CFR 261.2
and 261.3 and is therefore not codifying the OECD waste definition.
Materials outside the scope of EPA's definition of solid waste are not
subject to today's regulations. (As previously noted, EPA may, in the
future, identify wastes under other statutes that are subject to the
OECD Decision).
[[Page 16300]]
C. Notification and Consent for Exports
Notification of potential exports of hazardous waste destined for
recovery operations is a key component of the OECD requirements to
ensure that wastes are not moved if there is any objection from any of
the concerned countries. The notification and consent requirement
allows for the concerned countries (i.e., exporting, importing and
transit) to determine whether the hazardous waste can be handled safely
based on the requirements of their waste management system and of the
systems and qualifications of the particular facility that is
designated to receive the waste.
As discussed previously in today's preamble, only those hazardous
wastes subject to the Federal requirements for manifesting under 40 CFR
Part 262 are subject to the RCRA export/import requirements set forth
in today's rule. Notifiers subject to these rules must follow the
relevant amber-list or red-list control procedures, as discussed below
and codified in Secs. 262.82 through 262.86 of today's regulations.
1. Provisions Applicable to Amber-List and Red-List Wastes
Under the amber-list control system, there are two options for
notification and consent for shipments of amber-list wastes. The first
option requires written notification with tacit or written consent. The
second option, a facility pre-approval system, requires written
notification and is discussed in Sec. III. C. 1. c. of today's
preamble. Certain contractual obligations also apply to notifiers,
recovery facilities and all other parties to the waste movement. In
addition, under the red-list control system, facility pre-approval is
not allowed for shipments of any red-list wastes. Finally, although the
notification requirements for red-list wastes are the same as those
applicable to amber-list wastes, tacit consent is not permissible for
red-list wastes.
a. Notice and Consent for Specific Shipments. According to the
Decision, the notifier must provide written notification of intent to
export to the competent authorities of the concerned countries (i.e.,
exporting, importing and transit) prior to shipment.9 The Agency
today is requiring such notices to be submitted to EPA 45 days prior to
the commencement date of the proposed shipment of waste for recovery
within the OECD.10 EPA considers this period of 45 days as
appropriate in order to allow time for EPA to review and process the
notification documents, the Acknowledgement of Receipt to be sent by
the importing country (as required by the Decision), and the 30-day
tacit or written consent period (required by the Decision). In
addition, EPA considers this period of 45 days rather than 60 days
prior notice set forth in current U.S. regulations, as appropriate for
today's rule, because within the OECD context notifications and
consents are often faxed and disseminated in a much more expedient
manner than in other contexts. EPA, in lieu of the U.S. notifier, will
forward the export notices to the importing and transit countries.
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\9\ Note that the competent authority of the exporting country
may, in accordance with domestic laws, decide to transmit this
notification to importing and transit countries.
\10\ Note that current U.S. regulations require 60 days prior
notice. See 40 CFR 262.50-262.60.
---------------------------------------------------------------------------
The export notification must contain the information specified in
Appendix 2 of the Decision. Much of this information is already
required for U.S. exports.
The OECD notification information includes:
(1) Serial number or other accepted identifier on the notification
form;
(2) Notifier name, address, and telephone and telefax numbers;
(3) Importing recovery facility name, address, telephone and
telefax numbers, and technologies employed;
(4) Consignee name, address, and telephone and telefax numbers if
the person is different than the owner or operator of the recovery
facility;
(5) Intended transporters and/or their agents;
(6) Country of export and relevant competent authority (the U.S.
Environmental Protection Agency);
(7) Countries of transit and relevant competent authorities;
(8) Country of import and relevant competent authority;
(9) Statement of whether the shipment is a single-shipment
notification or a general notification. If general, period of validity
requested;
(10) Date foreseen for commencement of transfrontier movement;
(11) If required by any concerned country, certification that any
applicable insurance or other financial guarantee is or shall be in
force covering the transfrontier movement
(Note: The U.S. does not currently require such financial
assurance);
(12) Designation of waste type(s) from the appropriate list (amber
or red), and the wastes' description(s), probable total quantity of
each, and an accepted uniform classification code (such as RCRA waste
codes and UN numbers and OECD waste list codes) 11 for each;
---------------------------------------------------------------------------
\11\ EPA requires UN numbers and RCRA waste codes in addition
to the OECD waste list codes to be included per Sec. 262.83(e)(11)
of today's rule.
---------------------------------------------------------------------------
(13) Certification that a written contract or chain of contracts or
equivalent arrangement between or among all parties to the
transfrontier movement, as required by Sec. 262.85, are in place and
are legally enforceable in all concerned countries; and
(14) Certification that the information is complete and correct to
the best of his/her knowledge.
In accordance with the existing Part 262 export regulations, EPA
will continue to require the notifier to identify facility EPA ID
numbers, if applicable, and information on the points of entry to and
departure from all foreign countries.
In July 1994, the OECD/WMPG finalized two forms: one to be used for
export notification and the other to accompany the shipment for
tracking purposes. The OECD/WMPG recommends, but does not require,
using the forms. EPA also recommends using the forms, but cannot
require their use until they are approved by OMB, and until EPA
promulgates such requirement. Before these events occur, EPA believes
that OECD countries, exporters and importers need to gain experience
with using the forms to determine if any modifications are needed;
thus, EPA recommends the forms be used immediately. Notification forms
are to be submitted to the Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting and
Data Division (2222A), Environmental Protection Agency, 401 M St.,
S.W., Washington, DC 20460, with ``Attention: OECD Export
Notification'' prominently displayed on the envelope. If the
notification is complete, EPA will forward a copy to the competent
authorities of the importing country and any transit country. The
importing country must acknowledge receipt of the notification within
three working days. The Acknowledgement of Receipt will be sent by the
competent authority of the importing country simultaneously to EPA, to
the notifier, and to the competent authority of any transit country.
EPA will accept a telephone facsimile of such acknowledgements.
During the 30-day period after the Acknowledgement of Receipt is
sent to EPA and the notifier, the competent authority of the importing
country as well as any transit country may object to the proposed
movement of wastes. Objections by any of the concerned
[[Page 16301]]
countries must be provided in writing to EPA, to the notifier, and to
the competent authorities of other concerned countries within the 30-
day period. The OECD-recommended notification form was designed to be
used for Acknowledgement of Receipt, consent, and objection purposes.
In the case of amber-list wastes, if no objections to the waste
movement are submitted within the 30-day period, tacit (or implied)
consent is granted and the movement of wastes may begin. Tacit consent
expires one calendar year after the close of the 30-day period. If a
shipment for which tacit consent has been given does not take place
within that time, a new notification must be submitted and a new
consent obtained. Competent authorities of concerned countries may also
choose to provide written consent to the notifier and concerned
countries in less than 30 days. In this event, the waste shipment may
begin immediately after the last consent is received from all of the
competent authorities. In the case of red-list wastes, the export of
such waste may not occur until the importing and all transit countries
provide written consent. Written consent expires within one calendar
year, unless otherwise specified.
b. General Notification. In cases where similar wastes (e.g., those
having similar physical and chemical characteristics, the same UN
classification, and same RCRA waste codes) are to be sent periodically
to the same recovery facility by the same notifier, the competent
authorities of concerned countries may elect to accept one notification
for these wastes for a period of up to one year. The notifier must
indicate on the form that the notification is general. Such acceptance
may be renewed for additional periods of up to one year each. A
concerned country may revoke its acceptance at any time by official
notice to the notifier and to the competent authorities of all other
concerned countries.
c. Pre-approval for Recovery Facilities Managing Amber-List Wastes.
The competent authority of an importing country with jurisdiction over
specific recovery facilities may decide that it will routinely consent
to the shipments of certain amber-list waste types to specific recovery
facilities. An importing country wishing to employ this process must
inform the OECD Secretariat of the recovery facility name and address,
technologies employed, waste types to which the pre-approval applies,
the time period covered, and any subsequent revocations.
No specific consent is required from the importing country when
waste is to be sent to a facility pre-approved to accept that waste.
However, the notifier planning to ship waste to a pre-approved recovery
facility must notify the Agency pursuant to Sec. 262.83(e) prior to
shipment. Therefore, the notifier must submit a notification to the
Agency at least 10 days in advance of the shipment to allow time for
EPA to verify that the proposed recovery facility has received pre-
approval, that the pre-approval is still valid, and that the export
notice meets any conditions set by the importing country. For example,
the importing country may need to stop the shipment in the event that
the pre-approved facility needs to shut down operations temporarily for
maintenance or repair. Moreover, the competent authorities of all
concerned countries may restrict or prohibit such waste shipments in
accordance with applicable domestic laws. In addition, pre-approval
designations may be limited to a specific time period and may be
revoked at any time. Shipments may commence after the notification has
been received by competent authorities of all concerned countries,
unless the notifier has received information indicating that the
competent authority of one or more concerned countries objects to the
shipment. The general notification procedures discussed above may be
used for multiple shipments of the same waste type to pre-approved
facilities. In addition, the regulations pertaining to tracking
documents and contracts apply. As discussed in Sec. III. F. 3. of
today's preamble, EPA has not yet decided whether or how to pre-approve
U.S. recovery facilities for the purpose of granting prior consent. The
issue will be addressed in a future rulemaking.
Facilities that intend to receive shipments of red-list wastes are
not eligible for pre-approval. Rather, each shipment of red-list waste
must proceed pursuant to a specific or general notification for which
written consent was received.
d. Return or Re-Export of Shipments. If the shipment of amber-list
or red-list waste cannot be managed in the importing country as planned
and if alternate management is unavailable or unacceptable in the
importing country, the party designated in the contract as assuming
responsibility for adequate management of the waste in such cases may
decide to return the waste to the notifier or to export the waste to a
third OECD country where a suitable facility can manage it. Any such
re-export must comply with the requirements of Sec. 262.82(c) of
today's regulations. Competent authorities of all concerned countries
(importing, transit, exporting), in addition to the competent authority
of the initial exporting country, must be notified. Each competent
authority has up to 30 days to object to the re-export. The 30-day
period begins when the competent authority of both the initial
exporting country and the new importing country issue Acknowledgements
of Receipt of the notification. The re-export may commence once the
competent authorities of all concerned countries have consented (i.e.,
tacit or written for amber-list wastes, written for red-list wastes).
Re-export to a third country outside the OECD is fully subject to the
notification and consent requirements outlined above with respect to
the initial exporting country and any OECD transit country, as well as
to the domestic laws of the original importing country and to any
applicable international agreements or arrangements to which the
(original) importing OECD country is a Party, including (if
appropriate) EPA's current regulations.
The provisions for return or re-export of red-list wastes are the
same as for amber-list wastes except that written consent must be
obtained from all concerned countries (i.e. tacit consent is not
permissible for red-list wastes).
U.S. persons are not required to comply with the re-export
provisions of today's regulations with respect to amber- or red-list
wastes that are not considered hazardous under U.S. law. If the waste
is considered hazardous in the other concerned OECD countries, however,
U.S. exporters of such wastes may find it expedient (or necessary) to
comply with return or re-export requirements of those countries in
order to continue trade with them. These requirements may be addressed
under the terms of their contracts with their trading partners.
2. Unlisted Wastes
If waste not appearing on the green, amber, or red lists is a RCRA
hazardous waste as defined in 40 CFR 261.3 and is subject to the
Federal manifesting requirements under Part 262, the waste is subject
to the notification and consent requirements established for red-list
wastes (i.e., prior written consent is required). However, if a waste
does not appear on any of the OECD lists and is not a RCRA hazardous
waste subject to manifesting requirements, the waste may be handled as
a green waste; thus no prior notification to EPA is required. Notifiers
should note, however, that the importing and transit countries may
require notification and consent controls for such wastes if they are
considered hazardous in their respective countries and if such controls
are
[[Page 16302]]
required by the domestic law of those countries. In such cases, the
foreign importer may ask U.S. notifiers to assume contractual
obligations requiring compliance with such provisions.
D. Tracking Documents
The Decision requires that a tracking document must accompany each
transfrontier shipment of amber-list or red-list waste until it reaches
its final destination (the designated recovery facility). The purpose
of the tracking document is to provide pertinent information concerning
the shipment to any interested entity while the waste is en route.
All hazardous wastes subject to today's rule (whether amber, red,
or unlisted, and whether constituting a U.S. import or export) must be
accompanied by a tracking document that contains all the information in
Sec. 262.84 of today's regulations. This includes all the information
required under Sec. 262.83(e), plus the following information:
(a) Date shipment commenced;
(b) If not same as the notifier, name, address, and telephone and
telefax numbers of primary exporter (i.e., shipper);
(c) Company name and EPA ID number of all transporters;
(d) Means and mode of transport, including types of packaging;
(e) Any special precautions to be taken by transporters;
(f) Certification by notifier that no objection has been lodged by
the competent authorities of all concerned countries. The notifier must
sign the certification; and
(g) Appropriate signatures for each custody transfer (transporter,
consignee, and owner or operator of the recovery facility).
As discussed earlier, the OECD has developed a form for tracking
purposes, in conjunction with the OECD notification form, which is
recommended for use by the OECD. The OECD developed the notification
and tracking forms for use by OECD countries implementing the Decision,
the European Union to implement its waste regulations, and non-OECD
countries for implementing the Basel Convention. After gaining
experience in using the notification and tracking forms, the OECD may
need to modify them. The Agency anticipates requiring their use in a
future rulemaking.
Until the OECD tracking form is codified into the RCRA regulations,
exporters and importers may either use the OECD tracking form itself,
or may supply all the information required in Sec. 262.84 on a separate
sheet of paper. In the latter case, all information should be typed or
printed and should be numbered to correspond to Sec. 262.84
requirements. As a practical matter, most U.S. exporters and importers
will be using the OECD-recommended forms if the OECD countries with
which they are trading require their use.
1. Routing of Tracking Document
As with the Uniform Hazardous Waste Manifest, EPA will not require
the tracking document (or information on separate paper) to accompany
the waste when moving by rail or bulk shipment by water. The regulated
community should continue to follow the manifest procedures for routing
the forms in 40 CFR 262.11 Subpart B.
Within 3 working days of its receipt of the hazardous wastes
subject to amber-list or red-list controls, the owner or operator of
the recovery facility must send signed copies of the tracking document
to the export notifier, to EPA's Office of Enforcement and Compliance
Assurance, and to the competent authorities of the importing and
transit countries. The original tracking document must be retained by
the recovery facility for at least 3 years. These requirements are
codified in Secs. 264.12, 265.12, 264.71 and 265.71 of today's rule.
Where U.S. recovery facilities are receiving wastes from other OECD
countries that are considered hazardous in that country but not in the
U.S., today's regulations do not apply for the U.S. recovery facility.
However, contractual provisions imposed on the foreign exporter for the
shipment to the U.S. recovery facility may result in certain
obligations for the facility, such as returning a signed tracking
document to the notifier and to competent authorities of concerned
countries. While the U.S. government does not have the authority to
enforce the requirements of other countries for wastes that are not
hazardous in the U.S., the U.S. may provide cooperative assistance to
other OECD countries in their efforts to enforce their own laws,
including sharing information and investigative support, pursuant to
domestic and international law.\12\ The owner or operator of the U.S.
recovery facility should be aware that the exporting country is
unlikely to consent to the shipment (or future similar shipments)
absent performance of these duties.
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\12\ For example, the Hague Evidence Convention, to which the
U.S. and several OECD countries belong, establishes procedures for
assistance in evidence-gathering which may be used to support
cooperation in civil enforcement.
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E. Contracts
Under today's rule, transfrontier movement of hazardous wastes
subject to amber-list or red-list controls may occur only under the
terms of a valid written contract, chain of contracts, or under
equivalent arrangements between facilities controlled by the same legal
entity. Therefore, the export notifier and the owner or operator of the
authorized recovery facility must enter into such contracts or
arrangements. In addition, all persons involved in such contracts or
arrangements must have appropriate legal status to assume the required
contractual obligations.
For the purposes of this rule, a valid contract is one that
complies with the requirements of Sec. 262.85 of today's rule. Among
other things, the contracts or equivalent arrangements must identify
the generator of each type of waste being shipped, all persons who will
have physical custody or legal control of the waste, and the designated
recovery facility. In addition, the contracts or equivalent
arrangements must identify the party who will assume responsibility for
the waste if alternate management of the waste is necessary. In
addition, such contracts or arrangements must identify the person
responsible for obtaining consent for export of the waste to a third
country, if the need should arise. Contracts or equivalent arrangements
must also contain provisions requiring each contracting party to comply
with all applicable requirements of today's regulation. Thus, contracts
provide a mechanism to ensure that all parties involved in the
transfrontier movement of waste destined for recovery operations are
cognizant of and assume appropriate responsibilities for the controls
placed on the waste shipment.
If required by the concerned countries, the contract, chain of
contracts, or equivalent arrangement must also include provisions for
financial guarantees to provide for alternate recycling, disposal, or
other means of sound management should the need arise. Currently, the
U.S. does not impose such a financial requirement. Competent
authorities of exporting and importing countries may, under domestic
law, also require the notifier to provide copies of contracts or
portions thereof. Under today's rulemaking, EPA is not requiring
routine submission of contracts to EPA. The Agency could, however,
request such information on a case-by-case basis, if necessary to
process export/import notices or for enforcement purposes. Upon
request, such information shall be held as confidential to the extent
allowed under
[[Page 16303]]
domestic law. Information for which a claim of confidentiality has been
asserted will be managed in accordance with the provisions in 40 CFR
Part 2 and 40 CFR 260.2 (as amended today), which allows information
submitted by export notifiers in their notification of intent to export
to be released to the U.S. Department of State and appropriate
authorities of receiving countries regardless of claims of
confidentiality.
As discussed earlier, there may be cases where U.S. parties are
engaged in transfrontier movements of waste that are not considered
hazardous under U.S. national procedures but that are considered
hazardous by another OECD country. In order for such waste movements to
proceed, U.S. parties would need to comply with the provisions of the
Decision as implemented by the other OECD country. It is likely that
the OECD country will rely on the contract in these situations to
define the responsibilities of all parties engaged in the transfrontier
movement. Thus, U.S. waste exporters, importers, and recognized traders
should anticipate requests from their foreign counterparts to address
these responsibilities in a contract. OECD countries are also free
under the Decision to require contract elements beyond those specified
in the Decision and today's rule. Such elements may include: \13\
\13\ This list is intended to be illustrative only; U.S. parties
may find foreign business associates requesting additional elements
in their contracts in accordance with the domestic laws and
regulations of other OECD countries.
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--Delineation of when and where responsibilities shift for
alternative waste management if disposition cannot be carried out as
described in the Notification of Intent to Export;
--Certification of compliance with tracking document requirements,
particularly the obligation of the U.S. receiving facility under
Sec. 262.84(e) to return signed tracking documents to the foreign
notifier and competent authorities of the concerned countries;
--Description of the specific financial guarantee mechanism if one
is required by any concerned country;
--Certification that all U.S. waste handlers in the contract are
authorized under U.S. law to carry out their transporter or waste
recovery functions;
--Provision requiring each contracting party to comply with all
applicable laws of the concerned countries;
--Identification of parties responsible for language translations of
export notifications or tracking document; and
--Procedures for modifying the contract, particularly to reflect
future modifications to the Decision.
F. Importers
1. Definition
There is no definition of ``importer'' in the Decision, the RCRA
regulations, or the RCRA statute. However, persons importing hazardous
waste have various responsibilities and duties under EPA's current
regulations and today's rule, including the contract provisions of
Sec. 262.85. Transfrontier movements of amber-list or red-list wastes
must occur under the terms of a valid written contract, or chain of
contracts, or equivalent arrangements (when the movement occurs between
parties controlled by the same corporate or legal entity). That
contract or equivalent arrangement must specify responsibilities of
each entity handling the waste starting with the notifier and ending
with the owner or operator of the recovery facility. In addition,
hazardous waste importers must comply with all applicable requirements
for generators and transporters pertaining to manifesting in 40 CFR
Parts 262 and 263 as well as the facility import notification
requirements in 40 CFR 264.12 and 265.12 if the facility is subject to
Parts 264 or 265. Also, hazardous waste importers in the U.S. must
comply with U.S. Customs' rules, provisions under the Toxic Substances
Control Act concerning the import of chemical substances (see Sec. IV.
B. 6. and VII of today's preamble), and any other applicable legal
requirements.
Any U.S. entity that meets the definition of ``consignee'' in
today's rule (i.e., the first person to whom possession or other form
of legal control of the waste is assigned once received in the
importing country), such as transporters, recognized traders, storage
facility operators, or recovery facility operators, may be acting as an
importer of hazardous wastes and therefore may be subject not only to
the requirements of Subpart H but also to current regulations
applicable to importers, in 40 CFR Part 262, subpart F.
2. Requirements
a. Notification of Receipt. In order to implement the Decision,
today's regulations at Sec. 262.84(d) require that the owner or
operator of the U.S. recovery facility send a signed copy of the
tracking document to the notifier and to the competent authorities of
the concerned countries, including EPA, within three working days of
receipt of a waste subject to amber-list or red-list controls. The
tracking document must contain the signatures of all parties that had
custody of the waste (see Sec. III. D. discussion on tracking
documents).
It is important to note that once a hazardous waste enters the
U.S., that waste and its management are subject not only to the OECD
procedures for transfrontier movements implemented in today's final
rule, but also to all other applicable U.S. regulations. Hence, RCRA
hazardous wastes subject to today's rules must be managed in accordance
with any applicable generator, transporter, and facility requirements
(e.g., packaging and labelling, return of manifest to the generator,
manifest discrepancy, and storage facility requirements) for hazardous
waste recyclables specified in 40 CFR 261.6 and part 266, in addition
to the Part 268 standards and requirements under other statutes (e.g.,
TSCA). When EPA (as the competent authority) receives a notification of
potential export from a foreign exporter, the Agency will review the
proposed import notice to determine if the waste is destined for a
recovery facility that is: (1) authorized to manage the specified waste
in accordance with the facility's RCRA permit or interim status
requirements; or (2) allowed to receive the waste under U.S. laws and
regulations but is not required to have a RCRA permit.
b. Pre-Approval of U.S. Recovery Facilities. The Decision allows
importing countries to pre-approve specific recovery facilities for
receiving shipments of certain amber-list wastes (see Sec. III. C. 1.
c. of today's preamble). EPA has not yet determined whether or how it
will pre-approve U.S. recovery facilities but has reserved Sec. 262.88
of today's regulations for this purpose.
EPA currently exempts many waste recycling (e.g., reclamation,
recovery, regeneration) units from RCRA permitting standards for the
actual recycling of the materials. However, storage of hazardous wastes
prior to recycling does trigger RCRA requirements, which may include a
permit requirement. There are also special circumstances where EPA
either totally or partially exempts certain recycling facilities from
RCRA regulation (see Sec. IV of today's preamble). In such cases, EPA
waste management officials may lack sufficient information regarding a
recycling facility's design and operation, and thus may be unable to
adequately assess the suitability of a particular recovery operation to
be pre-approved to receive certain amber-listed wastes. The Agency,
therefore, will defer consideration of the issue of pre-approval for
U.S. recovery facilities until a later date (see Sec. VIII of today's
preamble).
[[Page 16304]]
G. Reporting and Recordkeeping
The only new recordkeeping requirements imposed in today's rule
pertain to recovery facilities, which are now required to send signed
copies of the tracking document to the competent authorities of the
concerned countries and to retain copies for three years. In addition
to these new requirements, EPA recodifies in Subpart H for OECD
purposes the current recordkeeping and reporting requirements at 40 CFR
262.51 that are applicable to primary exporters. Recordkeeping and
reporting requirements for shipments of recyclable wastes to and from
OECD countries are in Sec. 262.87 and apply to individuals, including
notifiers and recognized traders, that meet the definition of primary
exporter at 40 CFR 262.51.
Annual reports on exports of hazardous waste to OECD countries for
recovery must continue to be filed with the Administrator no later than
March 1 of each year. As discussed in the August 8, 1986 Final Rule on
exports (51 FR 28664), there may be more than one party acting as
primary exporter (i.e., persons that are required to originate
manifests under Part 262 and any intermediaries arranging for the
export). For the purpose of today's rule, EPA expects one party (e.g.,
notifier or recognized trader acting as notifier) to submit the
notification, keep the required records, and submit the required annual
report, etc. Parties to transfrontier shipments should decide among
themselves which U.S. party should fulfill these duties. Enforcement
actions can, however, be taken against all waste handlers (e.g.,
notifiers, recognized traders, consignees, recovery facilities)
associated with the transfrontier movement of wastes for recovery
within the OECD.
If an individual is already required under 40 CFR 262.56 to file an
annual report for other hazardous waste exports, he need only file one
annual report. EPA is requiring, however, that information on OECD
exports covered under this Subpart be contained in a separate section
of the annual report since the U.S. must provide this information
annually to the OECD.
Under Sec. 262.87, annual reports must accurately summarize the
types, quantities, frequency, and ultimate destination of all hazardous
waste exported during the previous calendar year. In addition, the
report must include the facility's EPA identification number, and name
and address of the filer; the calendar year covered; the name and
address of each final recovery facility; by each final recovery
facility, a description of the waste exported, name and address of each
transporter used, the total amount of hazardous waste shipped during
the year, and the number of shipments during the year; a description of
the waste minimization efforts and results during the year;14 and
a certification statement attesting to the accuracy of the information
in the report and an acknowledgement of the potential penalties for
filing false information. The annual report must also contain the
designations of the waste type(s) from the OECD waste lists, the
applicable waste code from the OECD lists incorporated by reference in
Sec. 262.89 of today's rule, and the U.S. Department of Transportation
hazard class. Annual reports must be sent to the Office of Enforcement
and Compliance Assurance, Office of Compliance, Enforcement Planning,
Targeting and Data Division (2222A), Environmental Protection Agency,
401 M St., SW., Washington, DC 20460.
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\14\ Waste minimization information is required in even
numbered years only. No waste minimization information is required
under this section if (1) less than 1,000 kg of waste was exported
in each month of the calendar year pursuant to this subpart; or (2)
the information was already submitted as part of a biennial report
under 40 CFR 262.41.
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EPA also is recodifying in Sec. 262.87 the requirement in
Sec. 262.55 that persons who meet the definition of primary exporters
(e.g., notifiers or recognized traders acting as notifiers) must file
exception reports, under certain circumstances. For the purpose of OECD
exports, the written confirmation of delivery consists of the signed
copy of the tracking form sent by the owner or operator of the recovery
facility to the notifier as required in the parties' contract pursuant
to Sec. 262.85(f).
The Agency is requiring individuals who meet the definition of
primary exporters at 40 CFR 262.51 to continue to maintain specified
records for at least three years, consistent with current practice and
RCRA export recordkeeping requirements. These records include, where
applicable, a copy of each annual report from the three previous years,
a copy of each written consent obtained from competent authorities of
concerned countries (in lieu of EPA Acknowledgement of Consent), and a
copy of each confirmation of delivery by the recovery facility (i.e.,
tracking document). If there is an unresolved enforcement action
pending or if requested by the Administrator, the record retention
period may be extended.
IV. OECD Waste Lists and Relationship to RCRA
A. Relationship of OECD Wastes and RCRA Hazardous Wastes
The full text of the Decision containing the waste lists is
included in the official record for today's rule, and the green, amber,
and red waste lists are incorporated by reference in Sec. 262.89 of
today's regulations. EPA has developed a table that provides a general
guideline of possible RCRA wastes and waste codes that may correspond
to the amber and red listings, which is available in the docket for
today's rule. Because the OECD waste category descriptions for the
amber and red lists are broad and may include both RCRA hazardous waste
and waste that is not hazardous under RCRA, EPA is unable to
predetermine applicable RCRA waste codes in the absence of information
on the physical and chemical characteristics of the particular wastes
involved.
B. Status of Specific RCRA Hazardous Wastes
1. Definitions of Wastes Subject to National Procedures
The Decision establishes varying controls depending on whether a
waste is considered hazardous by the country of export or import, based
on the country's ``national procedures.'' For purposes of today's rule,
EPA considers that a waste is hazardous under U.S. national procedures
if the waste meets the following RCRA requirements: (1) Meets the
Federal definition of hazardous waste in 40 CFR 261.3; and (2) is
subject to either the Federal manifest procedures of 40 CFR part 262,
or to the universal waste management standards of 40 CFR part 273, or
to State requirements analogous to Part 273. (As previously noted, EPA
may, in the future, identify wastes under other statutes that are
subject to the OECD Decision). Under the RCRA regulations, however,
certain wastes do not meet the Federal hazardous waste definition when
they are recycled, or are not subject to the Federal manifesting
requirements, or are not subject to Federal or State universal waste
management standards. Such wastes are exempt from today's rules.
[Please see discussion on universal wastes in section IV. B. 6. below.]
Such exempt wastes would, however, remain subject to the controls
normally applied to international commercial transactions, just as
green-list wastes are subject to these controls (e.g., bill of lading,
international insurance, etc.). However, the exporter of U.S. exempt
[[Page 16305]]
wastes may still be required by her/his contract with the foreign
consignee to comply with notification, consent, and contractual
requirements imposed by other concerned countries as a condition of
exporting the waste if one or more of those concerned countries
considers the waste hazardous. OECD countries are acting within the
terms of the Decision if they impose such obligations for wastes they
consider hazardous, and will likely reject any shipment which does not
comply with these requirements. Thus, if a person is considering
exporting recyclable waste to an OECD country, that person should
determine the status of the waste in question (under the national
procedures of the importing and transit countries) well in advance of
the proposed shipment date so that no unnecessary delays are
encountered.
2. Exemptions From the Definition of Solid Waste
Current RCRA regulations subject recyclable materials to controls
under Subtitle C of RCRA if they meet the definition of solid waste
15 and are identified or listed as hazardous. The determination of
whether a recyclable material is a solid waste, and potentially a
hazardous waste, depends on the secondary material and the recycling
activity [see 50 FR 614 (Jan. 4, 1985) and 40 CFR 261.2 for further
discussion and requirements].
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\15\ Under Subtitle C of RCRA, EPA authority is limited to the
regulation of ``hazardous waste.'' However, to be regulated as a
hazardous waste, a material must first be a ``solid waste.'' Section
1004(27) of RCRA defines solid waste to include any garbage, refuse,
sludge and other discarded material [see RCRA Sec. 1004(8)]. A
central element of this definition is that wastes are ``discarded.''
EPA retains considerable discretion to define whether materials
being recycled can be considered to be ``discarded'' [see American
Mining Congress v. EPA, 907 F.2d 1179, 1185-87 (D.C. Cir. 1990); and
American Petroleum Institute v. EPA, 906 F.2d 729 at 740-42 (D.C.
Cir. 1990)].
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There is a relatively narrow set of (large volume) hazardous
secondary materials that, when recycled, are not defined as solid
wastes (e.g., off-specification commercial chemicals that are
reclaimed). Therefore, these materials are also not hazardous wastes
when recycled, and are therefore not subject to RCRA export/import
requirements. Potential notifiers of transfrontier movements of such
materials should keep in mind they bear the burden of demonstrating
that such materials are exempt from the definition of solid waste under
40 CFR 261.2 [see 40 CFR 261.2(f)]. Notifiers must therefore maintain
documentation that can substantiate their claims, consistent with the
regulations at 40 CFR 261.2(f).
3. Applicability to Hazardous Waste Subject to Special Recycling
Standards
EPA's regulatory definition of ``hazardous waste'' includes solid
wastes that are listed as hazardous waste or that exhibit a
characteristic of ignitability, corrosivity, reactivity, or toxicity.
However, there is a very small number of ``hazardous wastes'' that EPA,
for various reasons, has conditionally exempted in part from domestic
regulation. Because certain of these wastes are also not subject to
Federal hazardous waste manifest controls, including but not limited to
Federal manifest controls, EPA does not consider these wastes to be
hazardous under U.S. national procedures; therefore, these wastes are
not subject to the requirements set forth today. Such recyclable wastes
are discussed briefly below. In order to determine whether a particular
waste in fact qualifies for special recycling consideration, interested
persons will need to consult the appropriate RCRA regulations.
a. Scrap Metal. EPA has determined that scrap metal is exempt from
regulation as a hazardous waste under Subtitle C when recycled [see 40
CFR 261.6(a)(3)(iii); 50 FR 624 Jan. 4, 1985]. Because scrap metal is
also exempt from Federal manifest requirements, it is not considered
hazardous under U.S. national procedures. Additionally, scrap metal is
on the OECD green list as a non-hazardous waste.
b. Lead-Acid Batteries. Persons who generate, transport, or collect
whole spent lead-acid batteries for reclamation are not subject to the
Federal manifest requirements. Since spent lead-acid batteries being
reclaimed are exempt from Federal manifest requirements, they are not
considered hazardous under U.S. national procedures [see 40 CFR 266.80,
261.6(a)(2)(iv)]. Thus, persons exporting whole spent lead-acid
batteries for reclamation are not subject to today's export/import
requirements. However, they may be required to notify the importing
country of their intention to export lead-acid batteries, pursuant to
contracts they execute with foreign consignees, because lead-acid
batteries are found on the amber list and are considered to be
hazardous under the national procedures of many OECD countries.
Additional requirements may also apply per contracts with foreign
consignees.
4. Wastes Excluded Under 40 CFR 261.4
Many wastes listed in 40 CFR 261.4 are excluded from some or all
hazardous waste controls. Because some of these wastes are not defined
as solid waste [see 40 CFR 261.4(a)], they cannot be defined as
hazardous waste in accordance with Subtitle C of RCRA. Additionally,
some of the wastes are specifically excluded from the definition of
hazardous waste [see 40 CFR 261.4(b)], and therefore, are not subject
to the requirements of Subtitle C. Because these wastes are not defined
as hazardous and are not subject to the Federal manifesting procedures,
among other procedures, they are not covered under the RCRA export/
import requirements set forth today. These exempt wastes may, however,
be subject to controls imposed by other OECD countries. EPA expects to
bring additional solid wastes that are currently excluded from the
definition of hazardous waste under export and import controls in the
future.
Below are examples of wastes that are currently identified at 40
CFR 261.4(a) as excluded from the definition of solid waste. Persons
interested in determining whether a particular waste is excluded from
the definition of solid waste will need to consult 40 CFR 261.4(a)
directly.
--Domestic sewage and any mixture of domestic sewage and other waste
that passes through a sewer system to a publicly owned treatment works
for treatment;
--Industrial point source wastewater discharges subject to Sec. 402 of
the Clean Water Act;
--Irrigation return flows; and
--Source, special nuclear, or byproduct material as defined by the
Atomic Energy Act of 1954, as amended.
--Materials subjected to in-situ mining techniques that are not removed
from the ground as part of the extraction process;
--Pulping liquors reclaimed in a pulping liquor recovery furnace and
then reused in the pulping process, unless they are accumulated
speculatively;
--Spent sulfuric acid used to produce virgin sulfuric acid, unless it
is accumulated speculatively;
--Secondary materials that are reclaimed and returned for reuse to the
original production process where they were generated provided, inter
alia, that the process is a closed-loop system, only tank storage is
involved, and there is no combustion used;
--Spent wood preserving solutions that have been reclaimed and are
reused for their original intended purpose; and
--Coke and coal tar from the iron and steel industry that contain or
are produced from decanter tank tar sludge (K087) when coke and coal
tar are used as a fuel.
[[Page 16306]]
The solid wastes that are excluded under 40 CFR 261.4(b) from the
definition of hazardous waste include the following wastes listed
below. Persons interested in determining whether a particular waste is
excluded from the definition of hazardous waste will need to consult 40
CFR 261.4(b) directly.
--Household waste; 16
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\16\ Note that household waste and ash from incineration of
household waste appear on the amber list and may, therefore, be
subject to OECD procedures outside of the United States. Household
waste will be subject to export controls once EPA obtains new
statutory authority for exports and imports of waste. In addition,
the U.S. Supreme Court has ruled that ash from the incineration of
municipal solid waste that exhibits a characteristic of hazardous
waste must be managed as hazardous waste. Such characteristically
hazardous MSW ash will be subject to Amber controls when exported.
---------------------------------------------------------------------------
--Agricultural crop wastes and manures returned to soil as fertilizer;
--Mining overburden returned to the mine site;
--Fly ash waste, bottom ash waste, and flue gas emission control waste,
generated primarily from the combustion of coal or other fossil fuels
except as provided in 40 CFR 266.12;
--Drilling fluids, produced waters, and other wastes associated with
the exploration, development, or production of crude oil, natural gas,
or geothermal energy;
--Certain waste streams that exhibit the characteristic of hazardous
waste only for chromium and that were generated by a process using
nearly exclusively trivalent chromium in a non-oxidizing process such
as certain leather tanning wastes, and wastewater treatment sludges
from the production of TiO2 pigment using chromium-bearing ores by
the chloride process;
--Certain solid wastes from the extraction, beneficiation, and
processing of ores and minerals except as provided in 40 CFR 266.12;
--Cement kiln dust except as provided in 40 CFR 266.12;
--Under certain circumstances, solid waste that consists of discarded
wood products that fail the toxicity characteristic test solely for
arsenic and are not hazardous for any other reason;
--Petroleum-contaminated media resulting from an underground storage
tank undergoing corrective action;
--Used chlorofluorocarbon refrigerants from totally enclosed heat
transfer equipment destined for reclamation;
--Samples of solid waste, water, soil, or air, which are collected for
the sole purpose of testing to determine their characteristics or
composition; and
--Certain samples collected for the purposes of conducting treatability
testing and analysis.
5. Hazardous Waste Exempted Under 40 CFR 261.5
Under 40 CFR 261.5, hazardous wastes generated by conditionally
exempt small quantity generators (CESQGs) (i.e., generators of no more
than 100 kilograms per calendar month) are exempt from Subtitle C
requirements, including manifesting, provided such generators comply
with the requirements in 40 CFR 261.5. Thus, hazardous waste generated
by a CESQG or collected from CESQGs is not subject to today's rule.
These exempt wastes may, however, be subject to controls imposed by
other OECD countries, if those countries consider the wastes to be
hazardous.
6. Applicability to Universal Wastes
Today's rule applies to universal wastes as defined in 40 CFR 273
or by State requirements analogous to Part 273. Universal wastes are
defined as hazardous wastes, but are subject to streamlined management
requirements for collection, accumulation and transportation. For
instance, universal wastes are not subject to Federal manifesting
requirements. Universal wastes exported to non-OECD countries are,
however, subject to certain existing export regulations found in 40 CFR
part 262 Subpart E. Today's rule amends the export sections of 40 CFR
part 273 to clarify that universal wastes exported to designated OECD
countries for purposes of recovery are not subject to 40 CFR 273.20,
273.40, 273.56, but are instead subject to 40 CFR part 262, Subpart H
of today's rule. Furthermore, today's rule amends the import section of
40 CFR part 273 to clarify that universal wastes imported from
designated OECD countries for purposes of recovery are subject to 40
CFR 273.70 in addition to 40 CFR part 262, Subpart H of today's rule.
7. Non-RCRA Wastes and Other Regulatory Regimes
There are other wastes on the OECD lists that may or may not be
regulated under RCRA in the U.S., but that are controlled under other
statutes. Such wastes may include PCBs, asbestos, and some chlorinated
dioxins and chlorinated furans.17 Because these materials
themselves are not hazardous wastes as defined by RCRA, in most cases,
they are not subject to today's requirements (although other OECD
countries may subject them to controls). If, however, PCBs, asbestos,
chlorinated dioxins, or chlorinated furans are constituents in a waste
or waste mixture that is a RCRA listed or characteristic hazardous
waste that is subject to Federal manifest requirements under RCRA,
these wastes are subject to all applicable export and import
requirements under RCRA, including today's regulations. (As previously
noted, EPA may, in the future, identify wastes under other statutes
that are subject to the OECD Decision).
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\17\ Some dioxin wastes are included in listed RCRA hazardous
waste from non-specific sources, hazardous waste numbers F020, F021,
F022, F023, F026, and F027 [see 40 CFR 261.31(a)].
---------------------------------------------------------------------------
The Toxic Substances Control Act (TSCA) generally addresses the
regulation of materials containing PCBs [see 15 U.S.C.
Sec. 6(e)(2)(A)]. EPA proposed a rule on December 6, 1994 (59 FR 62788)
which addressed imports and exports of PCBs. EPA plans to promulgate
final rules in the near future.
Potential exporters of these wastes may consider contacting the
government of the specific OECD country for clarification as to
requirements associated with a particular waste type before planning
the waste shipment because other countries also may have restrictions
on the import or export of such wastes.
C. OECD Waste Lists Incorporated by Reference
The OECD Green List of Wastes (revised May 1994), Amber List of
Wastes and Red List of Wastes (both revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix 5, respectively, to the OECD
Council Decision C(92)39/FINAL (Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations) were approved by
the Director of the Federal Register to be incorporated by reference in
today's rule on July 11, 1996. These materials are incorporated as they
exist on the date of the approval and a notice of any change in these
materials will be published in the Federal Register. The materials are
available for inspection at: the Office of the Federal Register, 800
North Capitol Street, NW, suite 700, Washington, DC; the U.S.
Environmental Protection Agency, 401 M Street, SW, Room M2616,
Washington, DC; the Organization for Economic Cooperation and
Development, Environment Directorate, 2 rue Andre Pascal, 75775 Paris
Cedex 16, France; and, on the Internet (see instructions for accessing
these materials in electronic format in the Supplementary Information
section of the preamble to today's rule).
[[Page 16307]]
V. Applicability in Authorized States
In the same way that existing RCRA export requirements of 40 CFR
262 Subpart E are administered exclusively by EPA and not by States,
States may not receive authorization from EPA to control exports of
hazardous waste subject to Subpart H. This is because the exercise of
foreign relations and international commerce powers is reserved to the
Federal government under the Constitution. In the Agency's view,
foreign policy interests and exporter interests in expeditious
processing are better served by EPA's retention of these functions. In
addition, concentrating these responsibilities within EPA will provide
the U.S Department of State with a single contact point regarding the
transfrontier waste program and will better allow for uniformity and
expeditious transmission of information between the United States and
foreign countries.
States do, however, play a key role in providing EPA with
information on whether U.S. facilities designated to receive hazardous
waste imports are authorized to manage specific wastes and in ensuring
facility compliance with all applicable environmental laws and
regulations. Additionally, EPA may authorize States to receive facility
import notifications required under 40 CFR 264.12(a) and 265.12(a).
For the purposes of the transfrontier movement of wastes under
current RCRA requirements (and by extension, under today's rule), only
those wastes identified or listed under the Federal program that are
subject to Federal manifesting requirements are subject to the U.S.
requirements for exporting and importing. Thus, hazardous wastes
identified or listed by a State under State law that are not included
in the Federal hazardous waste universe (i.e., where the State program
is broader in scope than the federal hazardous waste program) will not
be subject to today's export and import regulations.
VI. Relationship to U.S. Bilateral Agreements
The U.S. has existing bilateral agreements that address
transboundary movements of hazardous waste between the U.S. and Mexico
and between the U.S. and Canada. Mexico became an OECD member in June
1994. Today's rule implementing the provisions of the Decision will not
apply to imports or exports of hazardous waste between the U.S. and
Mexico; the provisions of the bilateral agreement with Mexico continue
to apply as well as EPA's current export and import regulations, such
as those in 40 CFR 262, Subparts E and F, and 40 CFR 264.12(a) and
265.12(a).
Canada is a member of the OECD and has adopted the Decision.
Shipments of hazardous waste to and from Canada, both for the purposes
of recycling and final disposal, will continue to be subject to the
provisions of the U.S./Canada bilateral agreement and to EPA's current
import and export regulations. After the Agency has more experience
with implementing today's rule for transfrontier shipments between the
U.S. and other OECD countries, EPA may revisit this Decision. If so,
EPA will publish a notice in the Federal Register and allow the
regulated community adequate time to comply with any new requirements
imposed.
VII. Relationship to Other Programs
Under Section 13 of the Toxic Substances Control Act (TSCA),
importers of ``chemical substances and mixtures'' must certify
compliance with TSCA at the point of entry into the United States (see
40 CFR 707.20). Some chemical substances or mixtures as defined by TSCA
also can be hazardous wastes as defined by RCRA. Therefore, if a
hazardous waste as defined by RCRA meets the definition of a chemical
substance or mixture under TSCA, importers 18 must certify
compliance with TSCA in accordance with 40 CFR 707.20. This TSCA
compliance certification provision requires all importers of chemical
substances and mixtures to certify that their shipments are in
compliance with all applicable rules or orders under TSCA [see 40 CFR
707.20(b)(2)(i)]. Compliance with TSCA may require, among other things,
that the substances are not banned from importation, that they are
listed in the TSCA Inventory of chemical substances, and that the
substances are not being imported for a ``significant new use'' without
first providing notice to EPA at least 90 days prior to the import. If
the shipment (including a hazardous waste) contains no material covered
by TSCA (e.g., pesticides), then the importer must certify that the
substances in the shipment are not subject to TSCA [see 40 CFR
707.20(b)(2)(ii)].
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\18\ Under TSCA, an importer is considered the ``manufacturer.''
The term ``manufacture'' is defined in Sec. 3(7) of the act as: ``*
* * to import into the Customs territory of the United States (as
defined in general headnote 2 of the Tariff Schedules of the United
States) * * *.''
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U.S. Customs' regulations for importing require that the importer
of record or a Customs broker be responsible for filing entry
documentation.19 The importer of record may be a foreign entity,
provided that, in the state or territory where the port of entry is
located, there is a resident who is authorized to accept service of
process against such foreign entity. Such resident must file a bond
having a resident corporation surety to secure payment of any increased
or additional duties that may be found due.
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\19\ Under Federal regulations (19 CFR 111), a Customs broker is
an individual, a partnership, or an association or corporation who
is licensed under Part 111 to transact customs business on behalf of
others (19 CFR 111.1). Among other requirements, an individual
seeking a broker's license must be a U.S. citizen (19 CFR
111.11(a)). For a partnership, association, or corporation to act as
a Customs broker, at least one member or officer must be a licensed
Customs broker, which requires U.S. citizenship [19 CFR 111.11(b)
and (c)].
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VIII. Future Rulemaking
This Decision is a negotiated international agreement that provides
nations with some limited flexibility to implement the Decision within
their unique domestic waste management schemes. As such, certain
definitions and procedures in the Decision are less explicit than
current RCRA regulations. It may be appropriate in the future to revise
today's regulations to address additional elements of the Decision.
Some of the elements of the Decision that the Agency may address in
future regulations include:
--Notification and tracking documents. The OECD/WMPG developed
recommended, standardized notification and tracking documents for
shipments of amber-list and red-list wastes. Once the notification and
tracking documents have been in use, they may need to be modified
according to experience by the member countries. When use of the forms
becomes mandatory by the OECD, the Agency will amend its regulations to
require their use.
--Pre-approval of recovery facilities. The Decision allows importing
countries to pre-approve recovery facilities. The Agency has not yet
decided whether to pre-approve recovery facilities and, if so, whether
only RCRA permitted or interim status recovery facilities should
qualify for pre-approval or whether pre-approval criteria can feasibly
be established for recovery facilities currently exempt from RCRA
permit or technical standards. The Agency has already received a
proposal for such criteria from the International Precious Metals
Institute (IPMI). IPMI's proposal is included in the public docket for
today's rule.
--Recognized traders. Consistent with the Decision, today's regulations
set forth certain responsibilities for
[[Page 16308]]
recognized traders of hazardous wastes destined for recovery within the
OECD. The Agency will be further assessing the relationship of
recognized traders, as defined in today's regulations, to waste brokers
and whether additional regulations are needed to clarify the scope of
coverage and associated responsibilities.
As the Agency gains experience implementing today's regulations, it
may identify additional issues requiring further regulatory action.
IX. Regulatory Impact Analysis
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735 October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
EPA has determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 and is therefore not
subject to OMB review. This rule raises no novel legal or policy
issues. It simply implements the Decision which the U.S. has already
supported. The rule promulgates regulatory language that differs from
the language of the Decision in only a minimal, nonsubstantive manner,
in order to conform this rule to existing RCRA rules. The rule's scope
is not broader than that of the Decision. The only costs of this rule
are those associated with the additional notification and tracking
costs. Analysis in the ICR (Information Collection Request) shows that
the annual burden for U.S. exporters and importers will total less than
$225,000. This rule will not cause any inconsistencies or interfere
with other Agencies' actions, nor materially alter the budgetary impact
of entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof.
While EPA recognizes that some companies may experience economic
dislocation if there are significant delays in processing notifications
and consents, the Agency believes that judicious planning on the part
of these companies could eliminate or lessen the impact of such delays,
if any. Moreover, the Agency again emphasizes that the Decision imposed
these new notification and consent requirements. EPA is merely
codifying those requirements in this rule.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., a
Regulatory Flexibility Analysis must be performed if the regulatory
requirements have a significant impact on a substantial number of small
entities. No Regulatory Flexibility Analysis is required where the head
of an agency certifies that the rule will not have a significant
economic impact on a substantial number of small entities.
Since the enactment of RCRA Section 3017 and the 1986 regulations
at 40 CFR part 262, subpart E, generators subject to the manifesting
requirements for exports of hazardous waste have been required to
comply with notification and consent requirements as a condition of
exporting such wastes. Generators who generate less than 100 kgs/mo
(conditionally exempt small quantity generators) were not required to
comply with these requirements because they are not subject to the
manifesting requirements. Conditionally exempt small quantity
generators are not subject to any of the requirements of today's rule;
thus, the universe of regulated individuals is not changing.
EPA does not believe this rule will increase burdens for any small
entities that are not already exempt as small quantity generators.
Today's rule is not expected to have a significant economic impact on a
substantial number of small entities and does not require a Regulatory
Flexibility Analysis. Therefore, pursuant to 5 U.S.C. 601(b), I certify
that this regulation will not have a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
1. Display of OMB Control Numbers
EPA is amending the table of currently approved information
collection request (ICR) control numbers issued by OMB for various
regulations. This amendment updates the table to accurately display
those information requirements contained in this final rule. This
display of the OMB control number and its subsequent codification in
the Code of Federal Regulations satisfies the requirements of the
Paperwork Reduction Act (44 USC 3501 et seq.) and OMB's implementing
regulations at 5 CFR 1320.
EPA finds that there is ``good cause'' under section 553(b)(B) of
the Administrative Procedure Act (5 U.S.C. 553(b)(B)) to amend this
table without prior notice and comment. Due to the technical nature of
the table, further notice and comment would be unnecessary. For the
same reasons, EPA also finds that there is good cause under 5 U.S.C.
553(d)(3).
2. Burden Statement
The information collection requirements in this rule have been
approved by the Office of Management and Budget (OMB) under the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and have been assigned
control number 2050-0143.
This collection of information has an estimated reporting burden
averaging from 5.74 hours per year per exporter to 2.99 hours per year
per importer. This includes time for reviewing regulations/
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
Send comments regarding the burden estimate or any other aspect of
this collection of information, including suggestions for reducing this
burden, to Chief, Information Policy Branch (2136); U.S. Environmental
Protection Agency; 401 M Street, S.W.; Washington, DC 20460; and to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, Washington, DC 20503, marked ``Attention: Desk Officer for
EPA.''
List of Subjects
40 CFR Part 9
Environmental protection, Information collection, OMB approval,
Paperwork reduction.
40 CFR Part 260
Administrative practice and procedure, Confidential business
information, Hazardous waste.
40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping.
40 CFR Part 262
Exports, Hazardous waste, Imports, Incorporation by reference,
International agreements, Labeling, Manifest,
[[Page 16309]]
Packaging and containers, Recycling, Reporting and recordkeeping
requirements.
40 CFR Part 263
Export, Hazardous waste, Hazardous waste transportation, Import,
Manifesting, Tracking documents.
40 CFR Part 264
Hazardous waste, Imports, Manifest, Recordkeeping, Recycling.
40 CFR Part 265
Hazardous waste, Imports, Manifest, Recordkeeping requirements,
Recycling.
40 CFR Part 266
Precious metals, Recycling.
40 CFR Part 273
Hazardous waste, Recycling, Universal waste.
Dated: November 29, 1995.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter 1,
subchapter I of the Code of Federal Regulations, is amended as set
forth below.
PART 9--OMB APPROVALS UNDER THE PAPERWORK REDUCTION ACT
1. In Part 9:
a. The aut
FR Doc. 96-8087 Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision C(92)39 Concerning the Control of Transfrontier Movements of Wastes Destined for Recovery Operations
hority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1321, 1326, 1330, 1344, 1345
(d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 1971-1975 Comp.,
p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g-5, 300g-6, 300j-1,
300j-2, 300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-
7671q, 7542, 9601-9657, 11023, 11048.
b. Section 9.1 is amended by adding a new entry and heading in
numerical order to the table to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
40 CFR citation No.
------------------------------------------------------------------------
Public Information:
Part 2, subpart B..................................... 2050-0143
* * * * *
------------------------------------------------------------------------
PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL
2. In part 260:
a. The authority citation continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
b. Section 260.2(b) is revised to read as follows:
Sec. 260.2 Availability of information; confidentiality of
information.
* * * * *
(b) Any person who submits information to EPA in accordance with
parts 260 through 266 and 268 of this chapter may assert a claim of
business confidentiality covering part or all of that information by
following the procedures set forth in Sec. 2.203(b) of this chapter.
Information covered by such a claim will be disclosed by EPA only to
the extent, and by means of the procedures, set forth in part 2,
subpart B, of this chapter except that information required by
Sec. 262.53(a) and Sec. 262.83 that is submitted in a notification of
intent to export a hazardous waste will be provided to the U.S.
Department of State and the appropriate authorities in the transit and
receiving or importing countries regardless of any claims of
confidentiality. However, if no such claim accompanies the information
when it is received by EPA, it may be made available to the public
without further notice to the person submitting it.
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
3. In 40 CFR part 261:
a. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.
b. Section 261.6 is amended by adding paragraph (a)(5) to read as
follows:
Sec. 261.6 Requirements for recyclable materials.
(a) * * *
(5) Hazardous waste that is exported to or imported from designated
member countries of the Organization for Economic Cooperation and
Development (OECD) (as defined in Sec. 262.58(a)(1)) for purpose of
recovery is subject to the requirements of 40 CFR part 262, subpart H,
if it is subject to either the Federal manifesting requirements of 40
CFR Part 262, to the universal waste management standards of 40 CFR
Part 273, or to State requirements analogous to 40 CFR Part 273.
* * * * *
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
4. The authority citation for part 262 is revised to read as
follows:
Authority: 42 U.S.C 6906, 6912, 6922, 6923, 6925, 6937, and
6938.
5. Section 262.10 is amended by redesignating paragraphs (d), (e),
(f), and (g) as (e), (f), (g), and (h) respectively and adding a new
paragraph (d) to read as follows:
Sec. 262.10 Purpose, scope, and applicability.
* * * * *
(d) Any person who exports or imports hazardous waste subject to
the Federal manifesting requirements of part 262, or subject to the
universal waste management standards of 40 CFR Part 273, or subject to
State requirements analogous to 40 CFR Part 273, to or from the
countries listed in Sec. 262.58(a)(1) for recovery must comply with
subpart H of this part.
* * * * *
6. Section 262.53(b) is revised to read as follows:
Sec. 262.53 Notification of intent to export.
* * * * *
(b) Notifications submitted by mail should be sent to the following
mailing address: Office of Enforcement and Compliance Assurance, Office
of Compliance, Enforcement Planning, Targeting, and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460. Hand-delivered notifications should be sent to: Office of
Enforcement and Compliance Assurance, Office of Compliance, Enforcement
Planning, Targeting, and Data Division (2222A), Environmental
Protection Agency, Ariel Rios Bldg., 12th St. and Pennsylvania Ave.,
NW., Washington, DC. In both cases, the following shall be prominently
displayed on the front of the envelope: ``Attention: Notification of
Intent to Export.''
* * * * *
7. Section 262.56(b) is revised to read as follows:
Sec. 262.56 Annual reports.
* * * * *
(b) Annual reports submitted by mail should be sent to the
following mailing address: Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting, and
Data Division (2222A), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460. Hand-delivered reports should be sent to: Office
of Enforcement and Compliance Assurance, Office of
[[Page 16310]]
Compliance, Enforcement Planning, Targeting, and Data Division (2222A),
Environmental Protection Agency, Ariel Rios Bldg., 12th St. and
Pennsylvania Ave., NW., Washington, DC.
8. Section 262.58 is amended by adding text to read as follows:
Sec. 262.58 International agreements.
(a) Any person who exports or imports hazardous waste subject to
Federal manifest requirements of Part 262, or subject to the universal
waste management standards of 40 CFR Part 273, or subject to State
requirements analogous to 40 CFR Part 273, to or from designated member
countries of the Organization for Economic Cooperation and Development
(OECD) as defined in paragraph (a)(1) of this section for purposes of
recovery is subject to Subpart H of this part. The requirements of
Subparts E and F do not apply.
(1) For the purposes of this Subpart, the designated OECD countries
consist of Australia, Austria, Belgium, Denmark, Finland, France,
Germany, Greece, Iceland, Ireland, Italy, Japan, Luxembourg,
Netherlands, New Zealand, Norway, Portugal, Spain, Sweden, Switzerland,
Turkey, United Kingdom, and the United States.
(2) For the purposes of this Subpart, Canada and Mexico are
considered OECD member countries only for the purpose of transit.
(b) Any person who exports hazardous waste to or imports hazardous
waste from: a designated OECD member country for purposes other than
recovery (e.g., incineration, disposal), Mexico (for any purpose), or
Canada (for any purpose) remains subject to the requirements of
subparts E and F of this part.
9. Part 262 is amended by adding subpart H consisting of
Secs. 262.80 through 262.89 to read as follows:
Subpart H--Transfrontier Shipments of Hazardous Waste for Recovery
within the OECD
Sec.
262.80 Applicability.
262.81 Definitions.
262.82 General conditions.
262.83 Notification and consent.
262.84 Tracking document.
262.85 Contracts.
262.86 Provisions relating to recognized traders.
262.87 Reporting and recordkeeping.
262.88 Pre-approval for U.S. Recovery Facilities (Reserved).
262.89 OECD Waste Lists.
Subpart H--Transfrontier Shipments of Hazardous Waste for Recovery
within the OECD
Sec. 262.80 Applicability.
(a) The requirements of this subpart apply to imports and exports
of wastes that are considered hazardous under U.S. national procedures
and are destined for recovery operations in the countries listed in
Sec. 262.58(a)(1). A waste is considered hazardous under U.S. national
procedures if it meets the Federal definition of hazardous waste in 40
CFR 261.3 and it is subject to either the Federal manifesting
requirements at 40 CFR Part 262, Subpart B, to the universal waste
management standards of 40 CFR Part 273, or to State requirements
analogous to 40 CFR Part 273.
(b) Any person (notifier, consignee, or recovery facility operator)
who mixes two or more wastes (including hazardous and non-hazardous
wastes) or otherwise subjects two or more wastes (including hazardous
and non-hazardous wastes) to physical or chemical transformation
operations, and thereby creates a new hazardous waste, becomes a
generator and assumes all subsequent generator duties under RCRA and
any notifier duties, if applicable, under this subpart.
Sec. 262.81 Definitions.
The following definitions apply to this subpart.
(a) Competent authorities means the regulatory authorities of
concerned countries having jurisdiction over transfrontier movements of
wastes destined for recovery operations.
(b) Concerned countries means the exporting and importing OECD
member countries and any OECD member countries of transit.
(c) Consignee means the person to whom possession or other form of
legal control of the waste is assigned at the time the waste is
received in the importing country.
(d) Country of transit means any designated OECD country in
Sec. 262.58(a)(1) and (a)(2) other than the exporting or importing
country across which a transfrontier movement of wastes is planned or
takes place.
(e) Exporting country means any designated OECD member country in
Sec. 262.58(a)(1) from which a transfrontier movement of wastes is
planned or has commenced.
(f) Importing country means any designated OECD country in
Sec. 262.58(a)(1) to which a transfrontier movement of wastes is
planned or takes place for the purpose of submitting the wastes to
recovery operations therein.
(g) Notifier means the person under the jurisdiction of the
exporting country who has, or will have at the time the planned
transfrontier movement commences, possession or other forms of legal
control of the wastes and who proposes their transfrontier movement for
the ultimate purpose of submitting them to recovery operations. When
the United States (U.S.) is the exporting country, notifier is
interpreted to mean a person domiciled in the U.S.
(h) OECD area means all land or marine areas under the national
jurisdiction of any designated OECD member country in Sec. 262.58. When
the regulations refer to shipments to or from an OECD country, this
means OECD area.
(i) Recognized trader means a person who, with appropriate
authorization of concerned countries, acts in the role of principal to
purchase and subsequently sell wastes; this person has legal control of
such wastes from time of purchase to time of sale; such a person may
act to arrange and facilitate transfrontier movements of wastes
destined for recovery operations.
(j) Recovery facility means an entity which, under applicable
domestic law, is operating or is authorized to operate in the importing
country to receive wastes and to perform recovery operations on them.
(k) Recovery operations means activities leading to resource
recovery, recycling, reclamation, direct re-use or alternative uses as
listed in Table 2.B of the Annex of OECD Council Decision
C(88)90(Final) of 27 May 1988, (available from the Environmental
Protection Agency, RCRA Information Center (RIC), 1235 Jefferson-Davis
Highway, first floor, Arlington, VA 22203 (Docket # F-94-IEHF-FFFFF)
and the Organisation for Economic Co-operation and Development,
Environment Direcorate, 2 rue Andre Pascal, 75775 Paris Cedex 16,
France) which include:
R1 Use as a fuel (other than in direct incineration) or other means to
generate energy
R2 Solvent reclamation/regeneration
R3 Recycling/reclamation of organic substances which are not used as
solvents
R4 Recycling/reclamation of metals and metal compounds
R5 Recycling/reclamation of other inorganic materials
R6 Regeneration of acids or bases
R7 Recovery of components used for pollution control
R8 Recovery of components from catalysts
R9 Used oil re-refining or other reuses of previously used oil
[[Page 16311]]
R10 Land treatment resulting in benefit to agriculture or ecological
improvement
R11 Uses of residual materials obtained from any of the operations
numbered R1-R10
R12 Exchange of wastes for submission to any of the operations
numbered R1-R11
R13 Accumulation of material intended for any operation in Table 2.B
(l) Transfrontier movement means any shipment of wastes destined
for recovery operations from an area under the national jurisdiction of
one OECD member country to an area under the national jurisdiction of
another OECD member country.
Sec. 262.82 General conditions.
(a) Scope. The level of control for exports and imports of waste is
indicated by assignment of the waste to a green, amber, or red list and
by U.S. national procedures as defined in Sec. 262.80(a). The green,
amber, and red lists are incorporated by reference in Sec. 262.89 (e).
(1) Wastes on the green list are subject to existing controls
normally applied to commercial transactions, except as provided below:
(i) Green-list wastes that are considered hazardous under U.S.
national procedures are subject to amber-list controls.
(ii) Green-list waste that are sufficiently contaminated or mixed
with amber-list wastes, such that the waste or waste mixture is
considered hazardous under U.S. national procedures, are subject to
amber-list controls.
(iii) Green-list wastes that are sufficiently contaminated or mixed
with other wastes subject to red-list controls such that the waste or
waste mixture is considered hazardous under U.S. national procedures
must be handled in accordance with the red-list controls.
(2) Wastes on the amber list that are considered hazardous under
U.S. national procedures as defined in Sec. 262.80(a) are subject to
the amber-list controls of this Subpart.
(i) If amber-list wastes are sufficiently contaminated or mixed
with other wastes subject to red-list controls such that the waste or
waste mixture is considered hazardous under U.S. national procedures,
the wastes must be handled in accordance with the red-list controls.
(ii) [Reserved].
(3) Wastes on the red list that are considered hazardous under U.S.
national procedures as defined in Sec. 262.80(a) are subject to the
red-list controls of this subpart.
Note to paragraph (a)(3): Some wastes on the amber or red lists
are not listed or otherwise identified as hazardous under RCRA
(e.g., polychlorinated biphenyls) and therefore are not subject to
the amber- or red-list controls of this subpart. Regardless of the
status of the waste under RCRA, however, other Federal environmental
statutes (e.g., the Toxic Substances Control Act) may restrict
certain waste imports or exports. Such restrictions continue to
apply without regard to this Subpart.
(4) Wastes not yet assigned to a list are eligible for
transfrontier movements, as follows:
(i) If such wastes are considered hazardous under U.S. national
procedures as defined in Sec. 262.80(a), these wastes are subject to
the red-list controls; or
(ii) If such wastes are not considered hazardous under U.S.
national procedures as defined in Sec. 262.80(a), such wastes may move
as though they appeared on the green list.
(b) General conditions applicable to transfrontier movements of
hazardous waste.
(1) The waste must be destined for recovery operations at a
facility that, under applicable domestic law, is operating or is
authorized to operate in the importing country;
(2) The transfrontier movement must be in compliance with
applicable international transport agreements; and
Note to paragraph (b)(2): These international agreements
include, but are not limited to, the Chicago Convention (1944), ADR
(1957), ADNR (1970), MARPOL Convention (1973/1978), SOLAS Convention
(1974), IMDG Code (1985), COTIF (1985), and RID (1985).
(3) Any transit of waste through a non-OECD member country must be
conducted in compliance with all applicable international and national
laws and regulations.
(c) Provisions relating to re-export for recovery to a third
country.
(1) Re-export of wastes subject to the amber-list control system
from the U.S., as the importing country, to a third country listed in
Sec. 262.58(a)(1) may occur only after a notifier in the U.S. provides
notification to and obtains consent of the competent authorities in the
third country, the original exporting country, and new transit
countries. The notification must comply with the notice and consent
procedures in Sec. 262.83 for all concerned countries and the original
exporting country. The competent authorities of the original exporting
country as well as the competent authorities of all other concerned
countries have 30 days to object to the proposed movement.
(i) The 30-day period begins once the competent authorities of both
the initial exporting country and new importing country issue
Acknowledgements of Receipt of the notification.
(ii) The transfrontier movement may commence if no objection has
been lodged after the 30-day period has passed or immediately after
written consent is received from all relevant OECD importing and
transit countries.
(2) Re-export of waste subject to the red-list control system from
the original importing country to a third country listed in
Sec. 262.58(a)(1) may occur only following notification of the
competent authorities of the third country, the original exporting
country, and new transit countries by a notifier in the original
importing country in accordance with Sec. 262.83. The transfrontier
movement may not proceed until receipt by the original importing
country of written consent from the competent authorities of the third
country, the original exporting country, and new transit countries.
(3) In the case of re-export of amber or red-list wastes to a
country other than those in Sec. 262.58(a)(1), notification to and
consent of the competent authorities of the original OECD member
country of export and any OECD member countries of transit is required
as specified in paragraphs (c)(1) and (c)(2) of this section in
addition to compliance with all international agreements and
arrangements to which the first importing OECD member country is a
party and all applicable regulatory requirements for exports from the
first importing country.
Sec. 262.83 Notification and consent.
(a) Applicability. Consent must be obtained from the competent
authorities of the relevant OECD importing and transit countries prior
to exporting hazardous waste destined for recovery operations subject
to this Subpart. Hazardous wastes subject to amber-list controls are
subject to the requirements of paragraph (b) of this section; hazardous
wastes subject to red-list controls are subject to the requirements of
paragraph (c) of this section; and wastes not identified on any list
are subject to the requirements of paragraph (d) of this section.
(b) Amber-list wastes. The export from the U.S. of hazardous wastes
as described in Sec. 262.80(a) that appear on the amber list is
prohibited unless the notification and consent requirements of
paragraph (b)(1) or paragraph (b)(2) of this section are met.
(1) Transactions requiring specific consent:
(i) Notification. At least 45 days prior to commencement of the
transfrontier
[[Page 16312]]
movement, the notifier must provide written notification in English of
the proposed transfrontier movement to the Office of Enforcement and
Compliance Assurance, Office of Compliance, Enforcement Planning,
Targeting and Data Division (2222A), Environmental Protection Agency,
401 M St., SW., Washington, DC 20460, with the words ``Attention: OECD
Export Notification'' prominently displayed on the envelope. This
notification must include all of the information identified in
paragraph (e) of this section. In cases where wastes having similar
physical and chemical characteristics, the same United Nations
classification, and the same RCRA waste codes are to be sent
periodically to the same recovery facility by the same notifier, the
notifier may submit one notification of intent to export these wastes
in multiple shipments during a period of up to one year.
(ii) Tacit consent. If no objection has been lodged by any
concerned country (i.e., exporting, importing, or transit countries) to
a notification provided pursuant to paragraph (b)(1)(i) of this section
within 30 days after the date of issuance of the Acknowledgment of
Receipt of notification by the competent authority of the importing
country, the transfrontier movement may commence. Tacit consent expires
one calendar year after the close of the 30 day period; renotification
and renewal of all consents is required for exports after that date.
(iii) Written consent. If the competent authorities of all the
relevant OECD importing and transit countries provide written consent
in a period less than 30 days, the transfrontier movement may commence
immediately after all necessary consents are received. Written consent
expires for each relevant OECD importing and transit country one
calendar year after the date of that country's consent unless otherwise
specified; renotification and renewal of each expired consent is
required for exports after that date.
(2) Shipments to facilities pre-approved by the competent
authorities of the importing countries to accept specific wastes for
recovery:
(i) The notifier must provide EPA the information identified in
paragraph (e) of this section in English, at least 10 days in advance
of commencing shipment to a pre-approved facility. The notification
should indicate that the recovery facility is pre-approved, and may
apply to a single specific shipment or to multiple shipments as
described in paragraph (b)(1)(i) of this section. This information must
be sent to the Office of Enforcement and Compliance Assurance, Office
of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460, with the words ``OECD Export Notification--Pre-approved
Facility'' prominently displayed on the envelope.
(ii) Shipments may commence after the notification required in
paragraph (b)(1)(i) of this section has been received by the competent
authorities of all concerned countries, unless the notifier has
received information indicating that the competent authorities of one
or more concerned countries objects to the shipment.
(c) Red-list wastes. The export from the U.S. of hazardous wastes
as described in Sec. 262.80(a) that appear on the red list is
prohibited unless notice is given pursuant to paragraph (b)(1)(i) of
this section and the notifier receives written consent from the
importing country and any transit countries prior to commencement of
the transfrontier movement.
(d) Unlisted wastes. Wastes not assigned to the green, amber, or
red list that are considered hazardous under U.S. national procedures
as defined in Sec. 262.80(a) are subject to the notification and
consent requirements established for red-list wastes in accordance with
paragraph (c) of this section. Unlisted wastes that are not considered
hazardous under U.S. national procedures as defined in Sec. 262.80(a)
are not subject to amber or red controls when exported or imported.
(e) Notification information. Notifications submitted under this
section must include:
(1) Serial number or other accepted identifier of the notification
form;
(2) Notifier name and EPA identification number (if applicable),
address, and telephone and telefax numbers;
(3) Importing recovery facility name, address, telephone and
telefax numbers, and technologies employed;
(4) Consignee name (if not the owner or operator of the recovery
facility) address, and telephone and telefax numbers; whether the
consignee will engage in waste exchange or storage prior to delivering
the waste to the final recovery facility and identification of recovery
operations to be employed at the final recovery facility;
(5) Intended transporters and/or their agents;
(6) Country of export and relevant competent authority, and point
of departure;
(7) Countries of transit and relevant competent authorities and
points of entry and departure;
(8) Country of import and relevant competent authority, and point
of entry;
(9) Statement of whether the notification is a single notification
or a general notification. If general, include period of validity
requested;
(10) Date foreseen for commencement of transfrontier movement;
(11) Designation of waste type(s) from the appropriate list (amber
or red and waste list code), descriptions of each waste type, estimated
total quantity of each, RCRA waste code, and United Nations number for
each waste type; and
(12) Certification/Declaration signed by the notifier that states:
I certify that the above information is complete and correct to
the best of my knowledge. I also certify that legally-enforceable
written contractual obligations have been entered into, and that any
applicable insurance or other financial guarantees are or shall be
in force covering the transfrontier movement.
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
Note to paragraph (e)(12): The U.S. does not currently require
financial assurance; however, U.S. exporters may be asked by other
governments to provide and certify to such assurance as a condition
of obtaining consent to a proposed movement.
Sec. 262.84 Tracking document.
(a) All U.S. parties subject to the contract provisions of
Sec. 262.85 must ensure that a tracking document meeting the conditions
of Sec. 262.84(b) accompanies each transfrontier shipment of wastes
subject to amber-list or red-list controls from the initiation of the
shipment until it reaches the final recovery facility, including cases
in which the waste is stored and/or exchanged by the consignee prior to
shipment to the final recovery facility, except as provided in
Secs. 262.84(a)(1) and (2).
(1) For shipments of hazardous waste within the U.S. solely by
water (bulk shipments only) the generator must forward the tracking
document with the manifest to the last water (bulk shipment)
transporter to handle the waste in the U.S. if exported by water, (in
accordance with the manifest routing procedures at Sec. 262.23(c)).
(2) For rail shipments of hazardous waste within the U.S. which
originate at the site of generation, the generator must forward the
tracking document with the manifest (in accordance with the routing
procedures for the manifest in Sec. 262.23(d)) to the next non-rail
transporter, if any, or the last rail transporter to handle the waste
in the U.S. if exported by rail.
[[Page 16313]]
(b) The tracking document must include all information required
under Sec. 262.83 (for notification), and the following:
(1) Date shipment commenced.
(2) Name (if not notifier), address, and telephone and telefax
numbers of primary exporter.
(3) Company name and EPA ID number of all transporters.
(4) Identification (license, registered name or registration
number) of means of transport, including types of packaging.
(5) Any special precautions to be taken by transporters.
(6) Certification/declaration signed by notifier that no objection
to the shipment has been lodged as follows:
I certify that the above information is complete and correct to
the best of my knowledge. I also certify that legally-enforceable
written contractual obligations have been entered into, that any
applicable insurance or other financial guarantees are or shall be
in force covering the transfrontier movement, and that:
1. All necessary consents have been received; OR
2. The shipment is directed at a recovery facility within the
OECD area and no objection has been received from any of the
concerned countries within the 30 day tacit consent period; OR
3. The shipment is directed at a recovery facility pre-
authorized for that type of waste within the OECD area; such an
authorization has not been revoked, and no objection has been
received from any of the concerned countries.
(delete sentences that are not applicable)
Name:------------------------------------------------------------------
Signature:-------------------------------------------------------------
Date:------------------------------------------------------------------
(7) Appropriate signatures for each custody transfer (e.g.
transporter, consignee, and owner or operator of the recovery
facility).
(c) Notifiers also must comply with the special manifest
requirements of 40 CFR 262.54(a), (b), (c), (e), and (i) and consignees
must comply with the import requirements of 40 CFR part 262, subpart F.
(d) Each U.S. person that has physical custody of the waste from
the time the movement commences until it arrives at the recovery
facility must sign the tracking document (e.g. transporter, consignee,
and owner or operator of the recovery facility).
(e) Within 3 working days of the receipt of imports subject to this
Subpart, the owner or operator of the U.S. recovery facility must send
signed copies of the tracking document to the notifier, to the Office
of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460,
and to the competent authorities of the exporting and transit
countries.
Sec. 262.85 Contracts.
(a) Transfrontier movements of hazardous wastes subject to amber or
red control procedures are prohibited unless they occur under the terms
of a valid written contract, chain of contracts, or equivalent
arrangements (when the movement occurs between parties controlled by
the same corporate or legal entity). Such contracts or equivalent
arrangements must be executed by the notifier and the owner or operator
of the recovery facility, and must specify responsibilities for each.
Contracts or equivalent arrangements are valid for the purposes of this
section only if persons assuming obligations under the contracts or
equivalent arrangements have appropriate legal status to conduct the
operations specified in the contract or equivalent arrangement.
(b) Contracts or equivalent arrangements must specify the name and
EPA ID number, where available, of:
(1) The generator of each type of waste;
(2) Each person who will have physical custody of the wastes;
(3) Each person who will have legal control of the wastes; and
(4) The recovery facility.
(c) Contracts or equivalent arrangements must specify which party
to the contract will assume responsibility for alternate management of
the wastes if its disposition cannot be carried out as described in the
notification of intent to export. In such cases, contracts must specify
that:
(1) The person having actual possession or physical control over
the wastes will immediately inform the notifier and the competent
authorities of the exporting and importing countries and, if the wastes
are located in a country of transit, the competent authorities of that
country; and
(2) The person specified in the contract will assume responsibility
for the adequate management of the wastes in compliance with applicable
laws and regulations including, if necessary, arranging their return to
the original country of export.
(d) Contracts must specify that the consignee will provide the
notification required in Sec. 262.82(c) prior to re-export of
controlled wastes to a third country.
(e) Contracts or equivalent arrangements must include provisions
for financial guarantees, if required by the competent authorities of
any concerned country, in accordance with applicable national or
international law requirements.
Note to paragraph (e): Financial guarantees so required are
intended to provide for alternate recycling, disposal or other means
of sound management of the wastes in cases where arrangements for
the shipment and the recovery operations cannot be carried out as
foreseen. The U.S. does not require such financial guarantees at
this time; however, some OECD countries do. It is the responsibility
of the notifier to ascertain and comply with such requirements; in
some cases, transporters or consignees may refuse to enter into the
necessary contracts absent specific references or certifications to
financial guarantees.
(f) Contracts or equivalent arrangements must contain provisions
requiring each contracting party to comply with all applicable
requirements of this subpart.
(g) Upon request by EPA, U.S. notifiers, consignees, or recovery
facilities must submit to EPA copies of contracts, chain of contracts,
or equivalent arrangements (when the movement occurs between parties
controlled by the same corporate or legal entity). Information
contained in the contracts or equivalent arrangements for which a claim
of confidentiality is asserted accordance with 40 CFR 2.203(b) will be
treated as confidential and will be disclosed by EPA only as provided
in 40 CFR 260.2.
Note to paragraph (g): Although the U.S. does not require
routine submission of contracts at this time, OECD Council Decision
C(92)39/FINAL allows members to impose such requirements. When other
OECD countries require submission of partial or complete copies of
the contract as a condition to granting consent to proposed
movements, EPA will request the required information; absent
submission of such information, some OECD countries may deny consent
for the proposed movement.
Sec. 262.86 Provisions relating to recognized traders.
(a) A recognized trader who takes physical custody of a waste and
conducts recovery operations (including storage prior to recovery) is
acting as the owner or operator of a recovery facility and must be so
authorized in accordance with all applicable Federal laws.
(b) A recognized trader acting as a notifier or consignee for
transfrontier shipments of waste must comply with all the requirements
of this Subpart associated with being a notifier or consignee.
Sec. 262.87 Reporting and recordkeeping.
(a) Annual reports. For all waste movements subject to this
Subpart, persons (e.g., notifiers, recognized traders) who meet the
definition of
[[Page 16314]]
primary exporter in Sec. 262.51 shall file an annual report with the
Office of Enforcement and Compliance Assurance, Office of Compliance,
Enforcement Planning, Targeting and Data Division (2222A),
Environmental Protection Agency, 401 M St., SW., Washington, DC 20460,
no later than March 1 of each year summarizing the types, quantities,
frequency, and ultimate destination of all such hazardous waste
exported during the previous calendar year. (If the primary exporter is
required to file an annual report for waste exports that are not
covered under this Subpart, he may include all export information in
one report provided the following information on exports of waste
destined for recovery within the designated OECD member countries is
contained in a separate section). Such reports shall include the
following:
(1) The EPA identification number, name, and mailing and site
address of the notifier filing the report;
(2) The calendar year covered by the report;
(3) The name and site address of each final recovery facility;
(4) By final recovery facility, for each hazardous waste exported,
a description of the hazardous waste, the EPA hazardous waste number
(from 40 CFR part 261, subpart C or D), designation of waste type(s)
from OECD waste list and applicable waste code from the OECD lists, DOT
hazard class, the name and U.S. EPA identification number (where
applicable) for each transporter used, the total amount of hazardous
waste shipped pursuant to this Subpart, and number of shipments
pursuant to each notification;
(5) In even numbered years, for each hazardous waste exported,
except for hazardous waste produced by exporters of greater than 100kg
but less than 1000kg in a calendar month, and except for hazardous
waste for which information was already provided pursuant to
Sec. 262.41:
(i) A description of the efforts undertaken during the year to
reduce the volume and toxicity of waste generated; and
(ii) A description of the changes in volume and toxicity of the
waste actually achieved during the year in comparison to previous years
to the extent such information is available for years prior to 1984;
and
(6) A certification signed by the person acting as primary exporter
that states:
I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this and all
attached documents, and that based on my inquiry of those
individuals immediately responsible for obtaining the information, I
believe that the submitted information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information including the possibility of fine and
imprisonment.
(b) Exception reports. Any person who meets the definition of
primary exporter in Sec. 262.51 must file an exception report in lieu
of the requirements of Sec. 262.42 with the Administrator if any of the
following occurs:
(1) He has not received a copy of the tracking documentation signed
by the transporter stating point of departure of the waste from the
United States, within forty-five (45) days from the date it was
accepted by the initial transporter;
(2) Within ninety (90) days from the date the waste was accepted by
the initial transporter, the notifier has not received written
confirmation from the recovery facility that the hazardous waste was
received;
(3) The waste is returned to the United States.
(c) Recordkeeping. (1) Persons who meet the definition of primary
exporter in Sec. 262.51 shall keep the following records:
(i) A copy of each notification of intent to export and all written
consents obtained from the competent authorities of concerned countries
for a period of at least three years from the date the hazardous waste
was accepted by the initial transporter;
(ii) A copy of each annual report for a period of at least three
years from the due date of the report; and
(iii) A copy of any exception reports and a copy of each
confirmation of delivery (i.e., tracking documentation) sent by the
recovery facility to the notifier for at least three years from the
date the hazardous waste was accepted by the initial transporter or
received by the recovery facility, whichever is applicable.
(2) The periods of retention referred to in this section are
extended automatically during the course of any unresolved enforcement
action regarding the regulated activity or as requested by the
Administrator.
Sec. 262.88 Pre-approval for U.S. Recovery Facilities (Reserved).
Sec. 262.89 OECD Waste Lists.
(a) General. For the purposes of this Subpart, a waste is
considered hazardous under U.S. national procedures, and hence subject
to this Subpart, if the waste:
(1) Meets the Federal definition of hazardous waste in 40 CFR
261.3; and
(2) Is subject to either the Federal RCRA manifesting requirements
at 40 CFR part 262, subpart B, to the universal waste management
standards of 40 CFR part 273, or to State requirements analogous to 40
CFR part 273.
(b) If a waste is hazardous under paragraph (a) of this section and
it appears on the amber or red list, it is subject to amber- or red-
list requirements respectively;
(c) If a waste is hazardous under paragraph (a) of this section and
it does not appear on either amber or red lists, it is subject to red-
list requirements.
(d) The appropriate control procedures for hazardous wastes and
hazardous waste mixtures are addressed in Sec. 262.82.
(e) The OECD Green List of Wastes (revised May 1994), Amber List of
Wastes and Red List of Wastes (both revised May 1993) as set forth in
Appendix 3, Appendix 4 and Appendix 5, respectively, to the OECD
Council Decision C(92)39/FINAL (Concerning the Control of Transfrontier
Movements of Wastes Destined for Recovery Operations) are incorporated
by reference. These incorporations by reference were approved by the
Director of the Federal Register in accordance with 5 U.S.C. 552(a) and
1 CFR part 51 on July 11, 1996. These materials are incorporated as
they exist on the date of the approval and a notice of any change in
these materials will be published in the Federal Register. The
materials are available for inspection at: the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington, DC; the
U.S. Environmental Protection Agency, RCRA Information Center (RIC),
1235 Jefferson-Davis Highway, first floor, Arlington, VA 22203 (Docket
# F-94-IEHF-FFFFF) and may be obtained from the Organisation for
Economic Co-operation and Development, Environment Direcorate, 2 rue
Andre Pascal, 75775 Paris Cedex 16, France.
PART 263--STANDARDS APPLICABLE TO TRANSPORTERS OF HAZARDOUS WASTE
10. The authority citation for part 263 is revised to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922, 6923, 6925, 6937, and
6938.
11. Section 263.10 is amended by adding paragraph (d) to read as
follows:
Sec. 263.10 Scope.
* * * * *
(d) A transporter of hazardous waste subject to the Federal
manifesting requirements of 40 CFR part 262, or subject to the waste
management standards of 40 CFR part 273, or subject
[[Page 16315]]
to State requirements analogous to 40 CFR part 273, that is being
imported from or exported to any of the countries listed in 40 CFR
262.58(a)(1) for purposes of recovery is subject to this Subpart and to
all other relevant requirements of subpart H of 40 CFR part 262,
including, but not limited to, 40 CFR 262.84 for tracking documents.
12. Section 263.20(a) is revised to read as follows:
Sec. 263.20 The manifest system.
(a) A transporter may not accept hazardous waste from a generator
unless it is accompanied by a manifest signed in accordance with the
provisions of 40 CFR 262.20. In the case of exports other than those
subject to subpart H of 40 CFR part 262, a transporter may not accept
such waste from a primary exporter or other person if he knows the
shipment does not conform to the EPA Acknowledgement of Consent; and
unless, in addition to a manifest signed in accordance with the
provisions of 40 CFR 262.20, such waste is also accompanied by an EPA
Acknowledgement of Consent which, except for shipment by rail, is
attached to the manifest (or shipping paper for exports by water (bulk
shipment)). For exports of hazardous waste subject to the requirements
of subpart H of 40 CFR part 262, a transporter may not accept hazardous
waste without a tracking document that includes all information
required by 40 CFR 262.84.
* * * * *
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
13a. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a) 6924, and 6925, 13b. Section
264.12 is amended by redesignating paragraph (a) as paragraph (a)(1)
and by adding a paragraph (a)(2) to read as follows:
Sec. 264.12 Required notices.
(a) * * *
(2) The owner or operator of a recovery facility that has arranged
to receive hazardous waste subject to 40 CFR part 262, subpart H must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460; and to the competent authorities of all other concerned
countries within three working days of receipt of the shipment. The
original of the signed tracking document must be maintained at the
facility for at least three years.
* * * * *
14. Section 264.71 is amended by adding paragraph (d) after the
comment to read as follows:
Sec. 264.71 Use of manifest system.
* * * * *
(d) Within three working days of the receipt of a shipment subject
to 40 CFR part 262, subpart H, the owner or operator of the facility
must provide a copy of the tracking document bearing all required
signatures to the notifier, to the Office of Enforcement and Compliance
Assurance, Office of Compliance, Enforcement Planning, Targeting and
Data Division (2222A), Environmental Protection Agency, 401 M St., SW.,
Washington, DC 20460, and to competent authorities of all other
concerned countries. The original copy of the tracking document must be
maintained at the facility for at least three years from the date of
signature.
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
15. The authority citation for part 265 is revised to read as
follows:
Authority: 42 U.S.C 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936, and 6937.
16. Section 265.12 is amended by redesignating paragraph (a) as
paragraph (a)(1) and by adding paragraph (a)(2) to read as follows:
Sec. 265.12 Required notices.
(a) * * *
(2) The owner or operator of a recovery facility that has arranged
to receive hazardous waste subject to 40 CFR part 262, subpart H must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460 and to the competent authorities of all other concerned
countries within three working days of receipt of the shipment. The
original of the signed tracking document must be maintained at the
facility for at least three years.
* * * * *
17. Section 265.71 is amended by adding paragraph (d) after the
comment to read as follows:
Sec. 265.71 Use of the manifest system.
* * * * *
(d) Within three working days of the receipt of a shipment subject
to 40 CFR part 262, subpart H, the owner or operator of facility must
provide a copy of the tracking document bearing all required signatures
to the notifier, to the Office of Enforcement and Compliance Assurance,
Office of Compliance, Enforcement Planning, Targeting and Data Division
(2222A), Environmental Protection Agency, 401 M St., SW., Washington,
DC 20460, and to competent authorities of all other concerned
countries. The original copy of the tracking document must be
maintained at the facility for at least three years from the date of
signature.
PART 266--STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES
AND SPECIFIC TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES
18. The authority citation for part 266 is revised to read as
follows:
Authority: 42 U.S.C 1006, 2002(a), 3004, 3014, 6905, 6906, 6912,
6922, 6923, 6924, 6925, 6934, and 6937.
19. Section 266.70 is amended by adding paragraph (b)(3) and by
adding the word ``and'' at the end of paragraph (b)(2) to read as
follows:
Sec. 266.70 Applicability and requirements.
* * * * *
(b) * * *
(3) For precious metals exported to or imported from designated
OECD member countries for recovery, subpart H of part 262 and
Sec. 265.12(a)(2) of this chapter. For precious metals exported to or
imported from non-OECD countries for recovery, subparts E and F of 40
CFR part 262.
* * * * *
PART 273--STANDARDS FOR UNIVERSAL WASTE MANAGEMENT
20a. The authority citation for part 273 continues to read as
follows:
Authority: 42 U.S.C. 6922, 6923, 6924, 6925, 6930, and 6937.
20b. The introductory text for Sec. 273.20 is revised to read as
follows:
Sec. 273.20 Exports.
A small quantity handler of universal waste who sends universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
21. The introductory text for Sec. 273.40 is revised to read as
follows:
[[Page 16316]]
Sec. 273.40 Exports.
A large quantity handler of universal waste who sends universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the handler is subject
to the requirements of 40 CFR part 262, subpart H) must:
* * * * *
22. The introductory text for Sec. 273.56 is revised to read as
follows:
Sec. 273.56 Exports.
A universal waste transporter transporting a shipment of universal
waste to a foreign destination other than to those OECD countries
specified in 40 CFR 262.58(a)(1) (in which case the transporter is
subject to the requirements of 40 CFR part 262, subpart H) may not
accept a shipment if the transporter knows the shipment does not
conform to the EPA Acknowledgment of Consent. In addition the
transporter must ensure that:
* * * * *
23. Section 273.70 is amended by revising the introductory text and
by adding a new paragraph (d) to read as follows:
Sec. 273.70 Imports.
Persons managing universal waste that is imported from a foreign
country into the United States are subject to the applicable
requirements of this part, immediately after the waste enters the
United States, as indicated in paragraphs (a) through (c) of this
section:
* * * * *
(d) Persons managing universal waste that is imported from an OECD
country as specified in 40 CFR 262.58(a)(1) are subject to paragraphs
(a) through (c) of this section, in addition to the requirements of 40
CFR part 262, subpart H.
[FR Doc. 96-8087 Filed 4-11-96; 8:45 am]
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