3070 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 247

[SWH–FRL–6524–2]

RIN 2050–AE23

Comprehensive Guideline for

Procurement of Products Containing

Recovered Materials

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency today is amending the May 1,

1995 Comprehensive Procurement

Guideline (CPG). EPA is designating 18

new items that are or can be made with

recovered materials. These items are

carpet cushion; flowable fill; railroad

grade crossing surfaces; park benches

and picnic tables; playground

equipment; food waste compost; plastic

lumber landscaping timbers and posts;

solid plastic binders; plastic clipboards;

plastic file folders; plastic clip

portfolios; plastic presentation folders;

sorbents (i.e., absorbents and

adsorbents); industrial drums; awards

and plaques; mats; signage; and manualgrade strapping.

The CPG implements section 6002 of

the Resource Conservation and

Recovery Act (RCRA) and section 502 of

Executive Order 13101, which require

EPA to designate items that are or can

be made with recovered materials and to

recommend practices that procuring

agencies can use to procure designated

items. Once EPA designates an item,

any procuring agency that uses

appropriated Federal funds to procure

that item must purchase the item

containing the highest percentage of

recovered materials practicable. Today’s

action will use government purchasing

power to stimulate the use of these

materials in the manufacture of new

products, thereby, fostering markets for

materials recovered from solid waste.

RCRA section 6002 provides certain

limited exceptions to the general

requirement to buy EPA-designated

items. Under certain circumstances

based on competition, price,

availability, and performance, RCRA

section 6002 does not require that

procuring agencies purchase an item

designated by EPA. In the May 1, 1995

CPG, EPA codified the RCRA section

6002 procurement requirements for the

convenience of procuring agencies so

they could find all of the RCRA section

6002 procurement provisions, as well as

EPA’s item designations, in one

location. You can find these

requirements at 40 CFR Part 247.

EFFECTIVE DATE: This final rule is

effective on January 19, 2001.

ADDRESSES: The public docket for this

document is Docket F–1999–CP3F–

FFFFF. Documents related to today’s

notice are available for viewing in the

RCRA Information Center (RIC), which

is located at U.S. Environmental

Protection Agency, Crystal Gateway

One, 1235 Jefferson Davis Highway,

Ground Floor, Arlington, VA 22202. The

RIC is open from 9 a.m. to 4 p.m.,

Monday through Friday, except for

Federal holidays. To review docket

materials, it is recommended that the

public make an appointment by calling

(703) 603–9230. Copies cost $0.15/page.

The index and some supporting

materials are available electronically.

See Section IX of the ‘‘Supplementary

Information’’ section below for

information on accessing the documents

electronically.

FOR FURTHER INFORMATION CONTACT: For

general information contact the RCRA

Hotline at (800) 424–9346 or TDD (800)

553–7672 (hearing impaired). In the

Washington, DC metropolitan area, call

(703) 412–9810 or TDD (703) 412–3323.

For technical information on individual

item designations, contact Terry Grist at

(703) 308–7257.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. What is the statutory authority for this

amendment?

II. Who is affected by this amendment?

III. Why is EPA taking this action?

IV. What criteria did EPA use to select items

for designation?

V. What are the definitions of terms used in

today’s action?

VI. What did commenters say about the

proposed CPG III and draft RMAN III?

A. General Comments

1. Recordkeeping and Reporting

2. Designation of Materials

B. Comments on Proposed Item

Designations

1. Nylon Carpet with Backing Containing

Recovered Materials

2. Flowable Fill

3. Railroad Grade Crossing Surfaces

4. Sorbents

C. Comments on Other Items Considered

for Designation

VII. Where can agencies get information on

the availability of EPA-designated items?

VIII. Administrative Assessments

A. Executive Order 12866: Regulatory

Planning and Review

1. Summary of Costs

2. Product Cost

3. Summary of Benefits

B. Regulatory Flexibility Act and Small

Business Regulatory Enforcement

Fairness Act

C. Unfunded Mandates Reform Act of 1995

and Consultation with State, Local, and

Tribal Governments

D. Executive Order 13132: Federalism

E. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

F. Executive Order 13045: Protection of

Children from Environmental Risks and

Safety Risks

G. National Technology Transfer and

Advancement Act of 1995

H. Submission to Congress and the General

Accounting Office

IX. Supporting Information and Accessing

Internet

I. What Is the Statutory Authority for

This Amendment?

EPA (‘‘the Agency’’) is promulgating

this amendment to the Comprehensive

Procurement Guideline under the

authority of sections 2002(a) and 6002

of the Solid Waste Disposal Act, as

amended by the Resource Conservation

and Recovery Act of 1976 (RCRA), as

amended, 42 U.S.C. 6912(a) and 6962.

The Agency is also promulgating this

amendment under section 502 of

Executive Order (E.O.) 13101, ‘‘Greening

the Government Through Waste

Prevention, Recycling, and Federal

Acquisition,’’ (63 FR 49643, September

14, 1998).

II. Who Is Affected by This

Amendment?

This action may potentially affect

procuring agencies that purchase the

following items: carpet cushion;

flowable fill; railroad grade crossing

surfaces; park benches and picnic

tables; playground equipment; food

waste compost; plastic lumber

landscaping timbers and posts; solid

plastic binders; plastic clipboards;

plastic file folders; plastic clip

portfolios; plastic presentation folders;

sorbents (i.e., absorbents and

adsorbents); awards and plaques;

industrial drums; mats; signage; and

manual-grade strapping. Under RCRA

section 6002, procuring agencies

include the following: (1) Any Federal

agency; (2) any State or local agency

using appropriated Federal funds for a

procurement; or (3) any contractors of

these agencies who are procuring these

items for work they perform under the

contract. See RCRA section 1004(17).

The requirements of section 6002 apply

to these procuring agencies only when

the agencies procure designated items

whose price exceeds $10,000 or when

the quantity of the item purchased in

the previous year exceeded $10,000. A

list of entities that this rule may cover

is provided in Table 1.

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3071

TABLE 1.—ENTITIES POTENTIALLY SUBJECT TO SECTION 6002 REQUIREMENTS TRIGGERED BY CPG AMENDMENTS

Category Examples of regulated entities

Federal Government ........................................... Federal departments or agencies that procure $10,000 or more of a designated item in a given

year.

State Government ............................................... A State agency that uses appropriated Federal funds to procure $10,000 or more of a designated item in a given year.

Local Government .............................................. A local agency that uses appropriated Federal funds to procure $10,000 or more of a designated item in a given year.

Contractor ........................................................... A contractor working on a project funded by appropriated Federal funds that purchases

$10,000 or more of a designated item in a given year.

This table is not intended to be

exhaustive. To determine whether this

action applies to your procurement

practices, you should carefully examine

the applicability criteria in 40 CFR

§ 247.12. If you have questions about

whether this action applies to a

particular entity, contact Terry Grist at

(703) 308–7257.

RCRA section 6002 applies to

procuring agencies that use at least a

portion of Federal funds to procure over

$10,000 worth of a designated product

in a given year. EPA estimates that this

rule would apply to 35 Federal agencies,

all 56 states and territories and 1,900

local governments. EPA calculated the

number of local governments that would

be impacted by this rule based on

information on the amount of Federal

funds that are dispersed to specific

counties. In addition, EPA assumed that

1,000 contractors may be affected. A

description of this information is

provided in the Economic Impact

Analysis for today’s rule.

III. Why Is EPA Taking This Action?

Section 6002(e) of RCRA requires EPA

to designate items that are or can be

made with recovered materials and to

recommend practices to help procuring

agencies meet their obligations for

procuring items designated under RCRA

section 6002. RCRA requires that when

a procuring agency purchase an EPAdesignated item, the agency must

purchase that item made of the highest

percentage of recovered materials

practicable.

E.O. 13101 establishes the procedures

EPA must follow when implementing

RCRA section 6002(e). Section 502 of

the Executive Order directs EPA to issue

a Comprehensive Procurement

Guideline (CPG) that designates items

that are or can be made with recovered

materials. At the same time EPA

promulgates the CPG, the Agency must

publish its recommended procurement

practices for entities that purchase

designated items in a related Recovered

Materials Advisory Notice (RMAN).

These practices must also provide

recommendations for the content of

recovered materials in the designated

items. The Executive Order also directs

EPA to update the CPG every two years

and to issue RMANs periodically to

reflect changing market conditions.

The original CPG (CPG I) was

published on May 1, 1995 (60 FR

21370). It established eight product

categories, designated 19 new items,

and consolidated five earlier item

designations. At the same time, EPA

published the first RMAN (RMAN I) (60

FR 21386). On November 13, 1997, EPA

published CPG II (62 FR 60962), which

designated an additional 12 items. At

the same time, EPA published a RMAN

II (62 FR 60975). Paper Products

RMANs were issued on May 29, 1996

(61 FR 26985) and June 8, 1998 (63 FR

31214).

On August 26, 1998, EPA proposed to

designate 19 additional items (CPG III)

and published draft recommendations

that provided recommendations for

entities to use when purchasing items

that contain recovered materials (RMAN

III). See 63 FR 45558–45578 and 63 FR

45580–45589, respectively. Today, EPA

is designating 18 of the items proposed

in CPG III. In CPG III, EPA proposed

designating nylon carpet with backing

containing recovered materials, but the

Agency is not designating this item, at

this time for the reasons explained

below. The 18 newly designated items

are listed below by product category.

Construction Products

Carpet cushion

Flowable fill

Railroad grade crossing surfaces

Park and Recreation Products

Park benches and picnic tables

Playground equipment

Landscaping Products

Food waste compost

Plastic lumber landscaping timbers and

posts

Non-Paper Office Products

Solid plastic binders

Plastic clipboards

Plastic file folders

Plastic clip portfolios

Plastic presentation folders

Miscellaneous

Sorbents

Industrial drums

Awards and plaques

Mats

Signage, including sign supports and posts

Manual-grade strapping

IV. What Criteria Did EPA Use To

Select Items for Designation?

RCRA section 6002(e) requires EPA to

consider the following when

determining which items it will

designate:

(1) Availability of the item;

(2) Potential impact of the

procurement of the item by procuring

agencies on the solid waste stream;

(3) Economic and technological

feasibility of producing the item; and

(4) Other uses for the recovered

materials used to produce the item.

The Agency also considers other

factors in its selection criteria. EPA

consulted with Federal procurement

and requirements officials to identify

other criteria to consider when selecting

items for designation. Based on these

discussions, the Agency concluded that

the limitations set forth in RCRA section

6002(c) should also be factored into its

selection decisions. This provision

requires that each procuring agency that

procures an item that EPA has

designated procure the item that

contains the highest percentage of

recovered materials practicable, while

maintaining a satisfactory level of

competition. A procuring agency,

however, may decide not to procure an

EPA-designated item containing

recovered materials if the procuring

agency determines: (1) The item is not

available within a reasonable period of

time; (2) the item fails to meet the

performance standards that the

procuring agency has set forth in the

product specifications; or (3) the item is

available only at an unreasonable price.

EPA recognized that these criteria

could provide procuring agencies with a

rationale for not purchasing EPAdesignated items that contain recovered

materials. For this reason, EPA

considers the limitations cited in RCRA

section 6002(c) when it selects items to

3072 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

designate in the CPG. Therefore, in CPG

I, the Agency outlined the following

criteria that it uses when it selects items

for designation:

• Use of materials found in solid

waste,

• Economic and technological

feasibility and performance,

• Impact of government procurement,

• Availability and competition, and

• Other uses for recovered materials.

EPA discussed these criteria in the CPG

I background documents and repeated

that discussion, for reader convenience,

in Section II of the document entitled,

‘‘Proposed Comprehensive Procurement

Guideline (CPG) III and Draft Recovered

Materials Advisory Notice (RMAN) III—

Supporting Analyses.’’ The RCRA

public docket for the proposed CPG III

rule, docket F–1998–CP3P–FFFFF

contains this document.

In CPG I, EPA stated that it had

adopted two approaches for designating

items that are made with recovered

materials. For some items, such as floor

tiles, the Agency designated broad

categories and provided information in

the RMAN about the appropriate

applications or uses for the items. For

other items, such as plastic trash bags,

EPA designated specific items, and, in

some instances, specified the types of

recovered materials or applications to

which the designation applies. The

Agency explained the approaches that it

took to designate items in the preamble

to CPG I (60 FR 21373, May 1, 1995),

and repeats them here for the

convenience of the reader:

EPA sometimes had information on the

availability of a particular item made with a

specific recovered material (e.g., plastic), but

no information on the availability of the item

made from a different recovered material or

any indication that it is possible to make the

item with a different recovered material. In

these instances, EPA concluded that it was

appropriate to include the specific material

in the item designation in order to provide

vital information to procuring agencies as

they seek to fulfill their obligations to

purchase designated items composed of the

highest percentage of recovered materials

practicable. This information enables the

agencies to focus their efforts on products

that are currently available for purchase,

reducing their administrative burden. EPA

also included information in the proposed

CPG, as well as in the draft RMAN that

accompanied the proposed CPG, that advised

procuring agencies that EPA is not

recommending the purchase of an item made

from one particular material over a similar

item made from another material. For

example, EPA included the following

statement in the preamble discussion for

plastic desktop accessories (59 FR 18879,

April 20, 1994): ‘‘This designation does not

preclude a procuring agency from purchasing

desktop accessories manufactured from

another material, such as wood. It simply

requires that a procuring agency, when

purchasing plastic desktop accessories,

purchase these accessories made with

recovered materials * * *’’

The Agency understands that some

procuring agencies may believe that

designating a broad category of items in

the CPG requires that they (1) procure

all items included in such category with

recovered materials content and (2)

establish an affirmative procurement

program for the entire category of items,

even when specific items within the

category do not meet the procuring

agency’s performance standards. RCRA

clearly does not require such actions, as

implemented through the CPG and the

RMAN. RCRA section 6002 does not

require a procuring agency to purchase

items that contain recovered materials if

the items are not available or if they do

not meet a procuring agency’s

specifications or reasonable

performance standards for the

contemplated use. Further, section 6002

does not require a procuring agency to

purchase such items if the item that

contains recovered material is only

available at an unreasonable price, or if

purchasing such item does not maintain

a reasonable level of competition.

However, EPA stresses that, the

procuring agency should seek to

purchase the product made with highest

percentage of recovered materials

practicable if that product meets the

procuring agency’s performance

requirements and all other factors are

equal.

The items designated today have all

been evaluated against EPA’s criteria.

The Agency discusses these evaluations

in the ‘‘Background Document for the

Final Comprehensive Procurement

Guideline (CPG) III and Final Recovered

Materials Advisory Notice (RMAN) III’’

(hereafter referred to as the

‘‘Background Document for the Final

CPG III/RMAN III),’’ which the Agency

has placed in the docket for the final

CPG III and RMAN III. You can also

access the document electronically. (See

Section IX below for Internet access

directions.)

V. What Are the Definitions of Terms

Used in Today’s Action?

Today, in 40 CFR 247.3, EPA is

defining the following new item-specific

terms: carpet cushion; flowable fill;

railroad grade crossing surfaces; park

benches and picnic tables; playground

equipment; food waste compost; plastic

lumber landscaping timbers and posts;

solid plastic binders; plastic clipboards;

plastic file folders; plastic clip

portfolios; plastic presentation folders;

sorbents; industrial drums; awards and

plaques; mats; signage; and manualgrade strapping. These definitions are

based on industry definitions, such as

the American Society for Testing and

Materials (ASTM) or other industry

standards, or describe the scope of items

that the Agency is designating.

For several items that the Agency is

designating today, EPA recommends in

the final RMAN III that procuring

agencies use two different measures of

the content of recovered materials: (1) A

component of postconsumer recovered

materials and (2) a component of total

recovered materials. In these instances,

EPA found that manufacturers were

using both types of materials to

manufacture the products. If the Agency

recommended only postconsumer

content levels, it would fail to meet the

RCRA mandate to maximize the use of

recovered materials, because the Agency

would fail to acknowledge the

contribution that manufacturers using

other manufacturers’ byproducts as

feedstock have made to solid waste

management.

Because the recommendations for the

items that the Agency is designating

today use the terms ‘‘postconsumer

materials’’ and ‘‘recovered materials,’’

we repeat the definitions for these terms

in this notice. The Agency provided

these definitions in CPG I, and they are

also provided at 40 CFR 247.3.

Postconsumer materials means a material

or finished product that has served its

intended end use and has been diverted or

recovered from waste destined for disposal,

having completed its life as a consumer item.

Postconsumer material is part of the broader

category of recovered materials.

Recovered materials means waste materials

and byproducts which have been recovered

or diverted from solid waste, but the term

does not include those materials and

byproducts generated from, and commonly

reused within, an original manufacturing

process.

VI. What Did Commenters Say About

the Proposed CPG III and Draft RMAN

III?

Forty commenters responded to the

proposed CPG III and the draft RMAN

III. These commenters represented

various interests, including but not

limited to Federal agencies, State

agencies, local governments, product

manufacturers, trade associations and

product users.

In this section, EPA discusses the

major comments that commenters

provided on the proposed CPG III. The

most significant comments received on

the draft RMAN III are discussed in the

preamble to the notice of availability of

the final RMAN III, which is published

in the notices section of today’s Federal

Register. You can find a summary of all

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3073

comments and EPA’s responses in the

‘‘Background Document for the Final

CPG III/RMAN III.’’

A. General Comments

1. Recordkeeping and Reporting

Comment: The U.S. Department of

Energy (DOE) stated that it supports

efforts to conserve resources by

procuring products containing

recovered materials. DOE stated that it

has aggressively instituted an

affirmative procurement program (APP)

throughout the Department. DOE

expressed its concern, however, that as

the number of designated items

increases, administrative costs of the

program will become increasingly

burdensome. DOE believes that as the

reporting and data collection

requirements continue to grow with

additional designations, it is likely that

the good will and positive

environmental message of E.O. 13101

will be misplaced. DOE suggested that

EPA seek to revise the Federal

Acquisition Regulation (FAR) to

channel federal purchasing toward

products with recycled content. This

way, federal agencies could report

progress in implementing the FAR

language, as opposed to attempting to

capture every purchase made by the

federal government.

Response: EPA has stated on many

occasions that implementation of RCRA

section 6002 must be consistent with

other federal procurement law. For

example, in Appendix II to the

‘‘Background Document for Proposed

Comprehensive Procurement Guideline

(CPG) III and Draft Recovered Materials

Advisory Notice (RMAN) III,’’ April

1998, EPA stated the following:

The purchase of recycled products under

RCRA section 6002 must be consistent with

other Federal procurement law, which

requires that contracts be awarded to the

lowest priced, responsive, responsible bidder

* * *.

On August 22, 1997, the Civilian Agency

Acquisition Council (CAAC) and the Defense

Acquisition Regulations Council (DARC)

issued a final rule amending the Federal

Acquisition Regulation (FAR) parts 1, 10, 11,

13, 15, 23, 36, 42, and 52 to reflect the

government’s preference for the acquisition

of environmentally-sound and energyefficient products and services and to

establish an affirmative procurement program

favoring items containing the maximum

practicable content of recovered materials.

(See 62 FR 44809, August 22, 1997.)

On September 23, 1999, the CAAC

and DARC proposed amendments to the

FAR to clarify language relating to

implementation of Executive Order

13101. The proposed rule (64 FR 51656,

September 23, 1999) also reorganizes

various sections of the FAR to make

environmental procurement policies

easier to find and implement. Procuring

agencies should consult the FAR for

guidance on acquisitions issues.

In addition, the Office of the Federal

Environmental Executive has

established a Reporting Workgroup and

associated subcommittees to examine

issues on recordkeeping and reporting.

Topics of discussion have included the

potential for using automated systems

and electronic commerce, vendor

reporting, as well as other alternatives.

It is the intent of these efforts that,

through the use of interagency

workgroups, reporting and

recordkeeping requirements can be

effectively and efficiently implemented.

Presumably, if these workgroups

determine that additional FAR changes

are warranted, these changes could be

proposed through the process and

procedures already established for

amending the FAR.

2. Designation of Materials

Comment: The Steel Recycling

Institute (SRI) and the Steel

Manufacturers Association submitted

separate comments in support of EPA’s

proposed designation of items

containing recovered steel (i.e., railroad

grade crossing surfaces, park benches

and picnic tables, playground

equipment, industrial drums, signage,

and strapping). SRI also urged EPA to

recognize (i.e., designate) steel in

general for its high recyclability and

guaranteed recycled content. The

American Iron and Steel Institute and

the American Zinc Association also

submitted comments endorsing the

comments provided by SRI.

SRI provided updated information for

use in the ‘‘Summary of Benefits’’

section of this notice, stating that its

latest study shows that for every ton of

steel recycled, 1,400 pounds of coal and

120 pounds of limestone are saved,

versus 1,000 pounds of coal and 40

pounds of limestone stated in EPA’s

notice (63 FR 45575).

SRI also submitted comments on the

recycled content of steel products. A

summary of these comments and the

Agency’s response is discussed in

RMAN III which is published in the

notices section of today’s Federal

Register.

Response: EPA agrees that steel, like

many metals, is both recyclable and can

contain recovered materials. EPA also

agrees that steel, like many metals, is a

waste management success story in

terms of its recyclability, high recycling

rate, and recovered materials content.

EPA also applauds the steel industry’s

source reduction efforts to produce

stronger, lighter weight steel, in

response to customer demand. RCRA,

however, specifically requires EPA to

designate items that are or can be made

with recovered materials, not the

component materials used in those

items. Accordingly, EPA designates

items that are manufactured with steel,

not the material itself.

EPA has used the new data provided

by SRI for coal and limestone savings

resulting from the use of recovered steel

in manufacturing. This information has

been incorporated in all applicable

documents supporting the final CPG/

RMAN III.

B. Comments on Proposed Item

Designations

A vast majority of commenters

supported the item designations

proposed in CPG III with minor

comments. This section discusses the

major comments submitted on specific

items proposed for designation in the

proposed CPG III. EPA has included a

summary of all comments on the

proposed CPG III and our responses in

the ‘‘Background Document for the

Final CPG III/RMAN III.’’ EPA received

significant comments on four items:

carpet backing, flowable fill, railroad

grade crossings, and sorbents. These

comments are discussed below. Based

on the item-specific comments received,

we are promulgating all of the items

proposed with the exception of nylon

carpet with backing containing

recovered materials.

1. Nylon Carpet With Backing

Containing Recovered Materials

Comments: EPA received six

comments in opposition to the proposed

designation of nylon carpet with

backing containing recovered materials.

These commenters all stated that there

is only one manufacturer currently

making nylon carpet backing with

recovered materials content. They

indicated that the manufacturer uses a

patented process and, therefore, a

designation is premature and does not

meet the statutory requirements for

adequate competition when designating

items.

Response: EPA proposed to designate

nylon carpet with backing containing

recovered materials based on the fact

that at the time of the proposal, one

manufacturer was producing carpet tiles

with backing containing recovered

materials commercially and, as the

Agency stated in the background

document, two other manufacturers

were piloting production runs with

recovered materials content and were

expected to enter the marketplace. As a

result of this comment, EPA conducted

3074 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

additional research and found that,

since the proposal, significant

developments have occurred in the

carpet industry with respect to the use

of recovered materials in nylon carpet

backing and the fiber facing. As an

example, one company is currently

making ‘‘renewed’’ carpet tiles. The

company takes old carpet and makes

renewed carpet tiles through a series of

process steps which include

supercleaning, retexturing of fibers, and

adding colors and patterns. In addition,

many companies have begun or are

expected to begin manufacturing nylon

carpet tiles with recovered materials in

the fiber facing. Since significant

developments have occurred with

respect to the use of recovered materials

in the nylon carpet industry, the Agency

believes additional research should be

conducted before a final designation for

nylon carpet or nylon carpet backing is

issued to ensure these developments are

given proper consideration. Therefore,

the Agency is not designating this item

at this time, but will consider

designating nylon carpet products when

proposing the next procurement

guideline (CPG IV).

Although the Agency is not

designating this item at this time,

procuring agencies may choose to

procure any item containing recovered

materials, regardless of whether the item

is specifically designated by EPA.

Procurement of items containing

recovered materials, whether or not they

are designated by EPA, is consistent

with RCRA section 6002 and E.O.

13101.

2. Flowable Fill

EPA received 18 sets of comments on

its proposal to designate flowable fill

containing coal fly ash and ferrous

foundry sands. While all commenters

supported the proposed designation for

flowable fill containing coal fly ash,

some commenters raised issues on the

proposed designation of flowable fill

containing ferrous foundry sands. The

following discussions summarize these

concerns and other issues raised by the

commenters and also provides the

Agency’s response.

Comment: The FIRST Project

(Foundry Industry Recycling Starts

Today), which is an industry

consortium, supported EPA’s

designation of flowable fill containing

foundry sand, with a few comments.

The FIRST Project took issue with EPA’s

statement that nonferrous foundry sands

are typically hazardous waste due to

their lead and cadmium content (63 FR

45563). The FIRST Project maintains

that spent sand from the vast majority

of nonferrous foundries is not

hazardous, nor does it contain lead and

cadmium. The FIRST Project provided

analytical data from nonferrous foundry

sand samples to support their position.

According to the FIRST Project, due to

changes in alloy chemistries of many

nonferrous foundry operations over the

past decade, spent sands meet EPA and

state definitions of nonhazardous waste.

The FIRST Project requested that EPA

correct the statement about nonferrous

sands being hazardous waste. They also

suggested that EPA list the American

Foundrymen’s Society as another

resource for obtaining information on

the use of spent foundry sand in

flowable fill.

Response: EPA based its statement

regarding the hazardousness of

nonferrous foundry sands on industry

data provided to the Agency in 1995 as

part of the Phase IV Land Disposal

Restrictions (LDR) rulemaking (60 FR

43654, August 22, 1995). These data

indicated that the sands from 98% of

bronze and brass (B&B) foundries and

40% of bronze and brass and aluminum

(B&B&A) foundries were

characteristically hazardous for metals.

The commenter’s analytical data do

not support their claim that a majority

of nonferrous foundry sands are

nonhazardous because in numerous

cases, improper test methods were used.

First, for 8 of 12 aluminum green sand

waste samples, the digestion of the

sample uses SW–846 Method 3010A or

Method 3020A (both normally used for

water) instead of Methods 3050 and

3051 (both used for solids). (The other

4 aluminum green sand samples did use

Method 3051.) These digestion methods

are weaker and would extract less of

whatever metals are present in the waste

matrix. In addition, virtually all of the

commenter’s leachate extraction data on

spent sand waste samples were done

using either the Synthetic Precipitation

Leaching Procedure (SPLP) SW–846

Method 1312 (which relies on nitric/

sulphuric acid as the extractant or

deionized water) rather than the

Toxicity Characteristic Leachate

Procedure (TCLP) SW–846 Method 1311

which the Agency uses to determine

toxicity for purposes of assessing

hazardousness under 40 CFR 261.24.

Therefore, the commenter’s leachate

extraction data are not appropriate for

determining whether the samples tested

are characteristically hazardous.

The Agency agrees with the

commenter, however, that the statement

in the proposed CPG III was too general

and may have implied a conclusive

determination about the regulatory

nature of nonferrous foundry sands.

This clearly was not the intent of the

statement. Therefore, the Agency has

removed any characterization of

nonferrous foundry sands as hazardous

in the final CPG III and all supporting

documents.

The Agency agrees with the

commenter that the American

Foundrymen’s Society should be

identified as a resource for obtaining

information regarding the use of spent

foundry sand in flowable fill and EPA

will ensure this reference is made in all

documents supporting the final CPG III/

RMAN III where appropriate.

Comment: The FIRST Project

commented that applications for the use

of flowable fill should be broadened to

include structural fill for foundation

subbases, subfootings, floor lab bases,

and pipe beddings.

Response: EPA’s designation in the

CPG and recommendations in the

RMAN do not preclude procuring

agencies from using flowable fill in the

applications suggested by the

commenter. If flowable fill meets the

requisite specifications and performance

standards for a particular application,

then flowable fill can be considered for

use by a procuring agency. The

specifications and test methods

identified in the RMAN are provided to

help procuring agencies in their

procurement efforts. If a procuring

Agency wants to include other

applications for flowable fill in their

affirmative procurement program (APP),

it can exercise its discretion in doing so

without being restricted to the

applications recommended by EPA in

the RMAN. EPA is required to revise the

RMAN recommendations periodically

and will consider the applications

suggested by the commenter in future

revisions. However, any

recommendations made by EPA, will be

subject to notice and public comment.

EPA requests that commenters provide

any pertinent information on the

suggested applications, including

references to any industry specifications

and test methods appropriate for the

various applications. We will consider

all information received on this matter

when we update the RMAN

recommendations.

Comment: The Federal Highway

Administration (FHWA) submitted

comments stating its concern that, based

on one of its user guidelines, there

might be a problem with foundry sand

stockpile water being contaminated

with phenols and, that if this is the case,

there would be a discrepancy between

this and the CPG statement that ferrous

foundry sands are not known to be a

hazardous waste. They provided no

information or analytical data to

substantiate their statement. FHWA

requested that this issue be addressed

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3075

since they could not support this

designation if it placed an undue

burden on state departments of

transportation to monitor each site or if

it requires mitigation by contractors.

Response: EPA is aware that phenols

may be present in some ferrous foundry

sands. According to a 1989 study

sponsored by the American

Foundrymen’s Society and conducted

by the University of Wisconsin, phenols

were present in some ferrous foundry

sands well below regulatory levels, so

the Agency does not believe there is

reason for concern. In addition, the

designation of flowable fill containing

ferrous foundry sands in the CPG does

not exempt these sands from regulatory

control if phenols, or any other

regulated contaminants, are present at

levels of regulatory concern. EPA’s

designation does not change the

regulatory management obligations for

the recovered material nor does it in any

way suggest that the materials are

relieved from waste management

regulations. The determination as to

whether the sands contain contaminants

at regulatory levels should be made in

accordance with all applicable federal

and state regulations and, thus, no

additional burden would be placed on

any entity to monitor stockpiles as a

result of a final designation for this item

in the CPG. All actions relating to

determining the regulatory status of

these sands would be performed by

generators or those manufacturing

flowable fill, not by those using a

commercial product.

Comment: The Illinois Department of

Transportation (IDOT) submitted

comments in opposition to the use of

ferrous foundry sands in flowable fill

since, according to IDOT, these sands

are normally contaminated with oil.

They did not provide any information or

data to substantiate this claim. IDOT

believes the use of coal fly ash in

flowable fill is logical because it has an

acceptable track record. IDOT stated

that little research has been done on

ferrous foundry sand and that its use

has been minimal.

EPA contacted the commenter to

ascertain the basis for their comment

and was told that since the comment

was submitted, IDOT has learned that

‘‘oil contamination is not always

present.’’

Response: As stated previously, EPA’s

designation does not change the

regulatory management obligations for

treatment or management of the

recovered material nor does it exempt

the materials from existing waste

management regulations. The

determination as to whether the ferrous

foundry sands contain contaminants at

regulatory levels should be made in

accordance with applicable federal and

state regulations before the material is

used to make a commercial product.

Comment: American Electric Power

(AEP) submitted comments supporting

the proposed designation of flowable fill

containing ferrous foundry sand and

also stated that EPA should note in the

CPG and RMAN, that a variety of

flowable fills have been successfully

developed without the use of cement as

an ingredient. AEP referred to flowable

fills that use materials such as Class C

fly ashes that have a high calcium

content, making them appropriate for

use in lieu of cement. AEP also stated

that these flowable fill mixes, which

sometimes utilize other recycled

materials such as Class F fly ash and

bottom ash as filler, have been approved

for use in several states. AEP provided

copies of some state specifications.

Response: Information presented in

the CPG and RMAN pertains to those

items that have been or are being

designated by EPA. The designation of

items under RCRA section 6002 and

E.O. 13101 requires notice and comment

before final designations are

promulgated. Because EPA did not

propose to designate flowable fill

containing other materials such as Class

C fly ashes, has not reviewed sufficient

information on these materials, and did

not solicit public comments, no

reference or recommendations for these

items are appropriate at this time.

However, procuring agencies may

choose to procure any item containing

recovered materials, regardless of

whether the item is specifically

designated by EPA. Procurement of

items containing recovered materials,

whether or not they are designated by

EPA, is consistent with RCRA section

6002 and E.O. 13101. EPA will consider

designating additional flowable fills

containing other recovered materials in

future amendments to the CPG.

3. Railroad Grade Crossing Surfaces

Comment: The Illinois Department of

Transportation (IDOT) submitted

comments opposing the designation and

recovered materials content

recommendations for railroad grade

crossing surfaces because crossing

designs are usually job-specific, and

IDOT believes this designation would

inhibit innovation. In addition, IDOT

believes it would be very costly to verify

the total recovered materials content.

Response: EPA disagrees that

designating railroad grade crossing

surfaces and providing

recommendations on recovered

materials content ranges would inhibit

innovation. As stated in Table C–11A of

RMAN III, ‘‘EPA’s recommendations do

not preclude a procuring agency from

purchasing another type of railroad

grade crossing surface * * *. They

simply require procuring agencies,

when purchasing concrete, rubber, or

steel grade crossing surfaces, purchase

these items made with recovered

materials when these items meet

applicable specifications and

performance requirements.’’ Therefore,

job-specific requirements and

specifications should be factored into

the procuring agency’s decision whether

to use products containing recovered

materials. If railroad grade crossings

made with recovered materials do not

meet legitimate job-specific

requirements, the procuring agency is

not required to use the designated items

with recovered materials.

EPA disagrees with the commenter’s

claim that it might be costly to verify

recovered materials content in

designated items. RCRA section 6002(i)

requires that an agency’s affirmative

procurement program (APP) ‘‘contain a

program for requiring vendors to

estimate, certify, and reasonably verify

the recovered materials content of their

products.’’ This provision is not meant

to burden either of the contracting

parties. At the federal level, there are

standard provisions for all contracts in

the Federal Acquisition Regulations

(FAR) that can be used to certify that the

products contracted for are delivered.

Standard clauses presumably exist for

contracts issued by state agencies as

well. These standard provisions can be

used to certify recovered materials

content levels with no extraneous costs

to either party.

4. Sorbents

Comment: Synthetic Industries (SI)

produces sorbents made of

polypropylene (PP) that are used to

clean up solvent and oil spills. SI is

opposed to the designation of sorbents

containing postconsumer recovered PP

because, according to SI, such products

are technologically infeasible. In

addition, SI believes PP sorbents should

not be designated for performancerelated reasons, citing doubts about the

ability of manufacturers to produce a

highly sensitive PP product from

postconsumer material. SI also stated

that it is not feasible to make sorbents

with postconsumer PP since it is

difficult to obtain a consistent, noncontaminated source of postconsumer

PP material. SI stated that if the

sorbent’s chemical content is not

known, it could react with a spilled

chemical, create a further hazard, or not

work properly.

3076 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

Response: EPA did not propose to

designate sorbents with postconsumer

PP, only those with total recovered

plastics. EPA’s research identified three

companies currently making these

products. The Agency agrees with the

commenter that not all sorbent materials

are right for all clean-ups. The Agency

stated this position in both its

background document and the proposed

CPG III FR notice (63 FR 45569, August

26, 1998). The Agency wrote, ‘‘The type

of sorbents used for spill applications

generally depends on the type of

substance being sorbed, where the spill

occurs, and worker health and safety

issues.’’ The Agency provided a lengthy

discussion of the importance of

choosing sorbents for particular

applications both in the FR notice and

background document. The Agency

notes that these factors should be

considered regardless of whether the

sorbent is made from recovered or virgin

materials. In the RMAN, published in

the notices section of today’s Federal

Register, EPA recommends that

procuring agencies use industry

standard specifications for solvent

performance when determining the

sorbents to be used in particular

applications.

Comment: The Brookhaven National

Laboratory commented on the

performance of recovered-content

sorbents. The commenter believes that

EPA should tell potential users of

sorbents that sorbent capacity is an

important factor in sorbent selection for

oil and solvent spills, and that lower

sorbent capacities compromise

performance and will result in greater

waste volumes and higher disposal

costs.

Response: EPA believes that both

virgin and recovered material content

sorbents can provide similar

performance in oil and solvent spill

situations as long as the appropriate

type of sorbent is chosen (based on a

variety of factors including sorbent

capacity) for the type of substance being

sorbed and for the location of the spill.

Whenever an inappropriate sorbent is

used, either virgin or recovered content,

the possibility exists for dangerous

reactions, environmental damage, or

increased sorbent use and recovery or

disposal. EPA notes that used sorbent

material does not necessarily end in

disposal. Under certain conditions,

some sorbent materials can be reused or

recycled. Synthetic sorbents, for

example, release sorbed substances

under pressure, and inorganic sorbents

can be recovered and used again

through a laundering process. Several

federal agencies are successfully using

recovered content sorbents to deal with

oil and solvent spills. The National Park

Service, for example, uses a product

made from recovered polypropylene, for

heavy or viscose oils. The U.S. Army

Corps of Engineers at Dworshak Dam in

Idaho, uses a product made from 100

percent recovered wood waste, for

emergency spill responses.

C. Comments on Other Items

Considered for Designation

In the proposed CPG III notice, the

Agency stated that we had considered

two items (recycled ink and shotgun

shells) and determined that it was

inappropriate to designate these items

(63 FR 45574). We requested additional

information demonstrating whether

these items should be reconsidered for

possible future designation. No

comments were submitted on these

items or on our decision not to

designate these items. EPA has received

letters from a recycled ink

manufacturer, separate from the Federal

Register notice request for comments,

stating that ink be reconsidered for

designation. However, no additional

information has been submitted by this

company despite repeated requests by

the Agency.

For the above reasons, EPA is no

longer conducting research relative to

these items or considering them for

designation in a future CPG. However,

we will review any information

submitted in support of designating

these items in the future to determine

whether these items should be

reconsidered.

VII. Where Can Agencies Get

Information on the Availability of EPADesignated Items?

EPA has developed lists of

manufacturers and vendors of the items

designated in today’s rule. In addition,

EPA has updated the lists of

manufacturers and vendors of the 36

items previously designated in the CPG.

These lists have been placed in the

RCRA docket for this action and will be

updated periodically as new sources are

identified and product information

changes. These lists will also be

available through EPA’s web site on the

Internet. (See section IX below for

Internet access information.) Procuring

agencies should contact the

manufacturers/vendors directly to

discuss their specific needs and to

obtain detailed information on the

availability and price of recycled

products meeting their needs.

Other information is available from

the GSA, the Defense Logistics Agency

(DLA), State and local recycling offices,

private corporations, and trade

associations. Refer to Section XIV of the

document, ‘‘Background Document for

the Final CPG III/RMAN III’’ for more

information on these other sources of

information.

State and local recycling programs are

also a potential source of information on

local distributors and the availability of

designated items. In addition, state and

local government purchasing officials

that are contracting for recycled content

products may have relative price

information. A current list of state

purchasing/procurement officials has

been placed in the docket for the final

CPG III. The public docket also includes

a list of states with recycled content

products purchasing programs, current

as of October 1998. Information is also

available from trade associations whose

members manufacture or distribute

products containing recovered

materials. These trade associations are

included in the updated lists of product

manufacturers and vendors described

above.

Additionally, Environmental

Newsletters, Inc., publisher of Waste

Reduction Tips, prepared a directory of

recycled product directories. EPA has

placed the ‘‘1996 Directory of Recycled

Product Directories,’’ from

Environmental Newsletters’ Recycled

Products Business Letter, in the public

docket for the final CPG III.

Environmental Newsletters, Inc. can be

reached at 703 758–8436 for further

information.

VIII. Administrative Assessments

A. Executive Order 12866: Regulatory

Planning and Review

Executive Order 12866 requires

agencies to determine whether a

regulatory action is ‘‘significant.’’ The

Order defines a ‘‘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

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; 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 estimates that the costs

associated with today’s rule is well

below the $100 million threshold. EPA

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3077

has prepared an Economic Impact

Analysis (EIA) to evaluate the potential

impact of today’s action. The results of

the EIA are discussed below. More

information on the estimated economic

impact of today’s rule is included in the

‘‘Economic Impact Analysis for the

Final Comprehensive Procurement

Guideline III.’’ A copy of this document

is in the public docket.

1. Summary of Costs

EPA estimated that the annualized

costs of the proposed rule to designate

19 items would fall in the range of $6.5

to $13 million. Even though today’s

final rule designates 18 items, rather

than 19 items, the costs associated with

this rule are estimated to be slightly

higher than the estimates in the

proposal. This is due to the fact that the

Agency revised the economic impact

analysis to reflect 1999 labor rates

which are higher than those in 1998

when the rule was proposed.

As shown in Table 2 below, EPA

estimates that the annualized costs of

today’s rule will range from $7.6 to

$14.8 million, with costs being spread

across all procuring agencies (i.e.,

Federal agencies, State and local

agencies that use appropriated Federal

funds to procure designated items, and

government contractors). These costs are

annualized over a 10-year period at a

three percent discount rate. Because

there is considerable uncertainty

regarding several of the parameters that

influence the costs, EPA conducted

sensitivity analyses to identify the range

of potential costs of today’s rule. Thus,

high-end and low-end estimates are

presented along with the best estimate.

The primary parameter affecting the

range of cost estimates is the number of

products each procuring agency is

assumed to procure each year. Details of

the costs associated with today’s final

rule are provided in the Economic

Impact Analysis for this rule.

TABLE 2.—SUMMARY OF ANNUALIZED COSTS OF CPG III AMENDMENTS TO ALL PROCURING AGENCIES

Procuring agency Total annualized

costs ($1000)

Best Estimate

Total annualized

costs ($1000)

Federal agencies ................................................................................................................................... $9,254–$4,627 $9,254

States ..................................................................................................................................................... 1,680–840 $1,680

Local Governments ................................................................................................................................ 3,787–2,066 2,927

Contractors ............................................................................................................................................ 123–61 92

Total ....................................................................................................................................................... 14,844–7,594 13,953

As a result of today’s rule, procuring

agencies will be required to take certain

actions pursuant to RCRA section 6002,

including rule review and

implementation; estimation,

certification, and verification of

designated item procurement; and for

Federal agencies, reporting and

recordkeeping. The costs shown in

Table 2 represent the estimated

annualized costs associated with these

activities. Table 2 also includes

estimates for Federal agencies that will

incur costs for specification revisions

and affirmative procurement program

modification. More details of the costs

associated with today’s rule are

included in the Economic Impact

Analysis.

There may be both positive and

negative impacts to individual

businesses, including small businesses.

EPA anticipates that today’s final rule

will provide additional opportunities

for recycling businesses to begin

supplying recovered materials to

manufacturers and products made from

recovered materials to procuring

agencies. In addition, other businesses,

including small businesses, that do not

directly contract with procuring

agencies may be affected positively by

the increased demand for recovered

materials. These include businesses

involved in materials recovery programs

and materials recycling. Municipalities

that run recycling programs are also

expected to benefit from increased

demand for certain materials collected

in recycling programs.

EPA is unable to determine the

number of businesses, including small

businesses, that may be adversely

impacted by today’s final rule. If a

business currently supplies products to

a procuring agency and those products

are made only out of virgin materials,

the amendments to the CPG may reduce

that company’s ability to compete for

future contracts. However, the

amendments to the CPG will not affect

existing purchase orders, nor will it

preclude businesses from adapting their

product lines to meet new specifications

or solicitation requirements for products

containing recovered materials. Thus,

many businesses, including small

businesses, that market to procuring

agencies have the option to adapt their

product lines to meet specifications.

2. Product Cost

Another potential cost of today’s

action is the possible price differential

between an item made with recovered

materials and an equivalent item

manufactured using virgin materials.

The relative prices of recycled content

products compared to prices of

comparable virgin products vary. In

many cases, recycled content products

are less expensive than similar virgin

products. In other cases, virgin products

have lower prices than recycled content

products. Many factors can affect the

price of various products. For example,

temporary fluctuations in the overall

economy can create oversupplies of

virgin products, leading to a decrease in

prices for these items. Under RCRA

section 6002(c), procuring agencies are

not required to purchase a product

containing recovered materials if it is

only available at an unreasonable price.

However, the decision to pay more or

less for such a product is left up to the

procuring agency.

3. Summary of Benefits

EPA anticipates that today’s final rule

will result in increased opportunities for

recycling and waste prevention. Waste

prevention can reduce the nation’s

reliance on natural resources by

reducing the amount of materials used

in making products. Using less raw

materials results in a commensurate

reduction in energy use and a reduction

in the generation and release of air and

water pollutants associated with

manufacturing. Additionally, waste

prevention leads to a reduction in the

environmental impacts of mining,

harvesting, and other extraction

processes.

Recycling can effect the more efficient

use of natural resources. For many

products, the use of recovered materials

in manufacturing can result in

significantly lower energy and material

input costs than when virgin raw

materials are used; reduce the

generation and release of air and water

pollutants often associated with

manufacturing; and reduce the

environmental impacts of mining,

3078 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

harvesting, and other extraction of

natural resources. For example,

according to information published by

the Steel Recycling Institute, recycling

one ton of steel saves nearly 11 million

Btus of energy; 2,500 lbs. of ore; 1,400

lbs. of coal; and 120 lbs. of limestone.

Recycling can also reduce greenhouse

gas emissions associated with

manufacturing new products. When

compared to landfilling, recycling one

ton of high density polyethylene, low

density polyethylene, or polyethylene

terephthalate plastic can reduce

greenhouse gas emissions by up to 0.64

metric tons of carbon equivalent

(MTCE). In addition to conserving nonrenewable resources and reducing the

environmental impacts associated with

resource extraction and processing,

recycling can also divert large amounts

of materials from landfills, conserving

increasingly valuable space for the

management of materials that truly

require disposal.

By purchasing products made from

recovered materials, government

agencies can increase opportunities for

all of these benefits. On a national and

regional level, today’s final rule can

result in expanding and strengthening

markets for materials diverted or

recovered through public and private

collection programs. Also, since many

State and local governments, as well as

private companies, reference EPA

guidelines when purchasing designated

items, this rule can result in increased

purchase of recycled products, locally,

regionally, and nationally and provide

opportunities for businesses involved in

recycling activities.

B. Regulatory Flexibility Act and Small

Business Regulatory Enforcement

Fairness Act

The Regulatory Flexibility Act (RFA),

5 U.S.C. 601 et seq., as amended by the

Small Business Regulatory Enforcement

Fairness Act, provides that, whenever

an agency promulgates a final rule

under 5 U.S.C. 553, after being required

by that section or any other law to

public a general notice of proposed

rulemaking, the agency must prepare a

final regulatory flexibility analysis

(FRFA). The agency must prepare an

FRFA for a final rule unless the head of

the agency certifies that it will not have

a significant economic impact on a

substantial number of small entities.

EPA is today certifying, pursuant to

section 605(b) of the RFA, that the final

rule will not have a significant

economic impact on a substantial

number of small entities. Therefore, the

Agency did not prepare an FRFA.

The final rule will not have a

significant economic impact on a

substantial number of small entities for

the following reasons. The RFA defines

‘‘small entity’’ to mean a small business,

small organization or small

governmental jurisdiction. EPA’s action

today in designating 18 new items that

are or may be produced with recovered

materials content may establish

requirements applicable, in some cases,

to small governmental jurisdictions and

small businesses.

In the case of small entities which are

small governmental jurisdictions, EPA

has concluded that the rule will not

have a significant economic impact.

EPA concluded that no small

government with a population of less

than 50,000 is likely to incur costs

associated with the designation of the

18 items because it is improbable that

such jurisdictions will purchase more

than $10,000 of any designated item.

Consequently, section 6002 would not

apply to their purchases of designated

items. Moreover, there is no evidence

that complying with the requirements of

section 6002 would impose significant

additional costs on the small

governmental entity to comply in the

event that a small governmental

jurisdiction purchased more than

$10,000 worth of a designated item.

This is the case because in many

instances items with recovered

materials content may be less expensive

than items produced from virgin

material.

Similarly, EPA has concluded that the

economic impact on small entities that

are small businesses would not be

significant. The CPG applies to small

businesses that are ‘‘procuring

agencies.’’ The potential economic

impact of the CPG on small businesses

that are ‘‘procuring agencies’’ is

minimal.

RCRA section 6002 applies to a

contractor with a Federal agency (or a

state or local agency that is a procuring

agency under Section 6002) when the

contractor is purchasing a designated

item, is using Federal money to do so,

and exceeds the $10,000 threshold.

There is an exception for purchases that

are ‘‘incidental to’’ the purposes of the

contract, i.e., not the direct result of the

funds disbursement. For example, a

courier service contractor is not

required to purchase re-refined oil and

retread tires for its fleets because

purchases of these items are incidental

to the purpose of the contract.

Therefore, as a practical matter, there

would be very limited circumstances

when a contractor’s status as a

‘‘procuring agency’’ for section 6002

purposes would impose additional costs

on the contractor. Thus, for example, if

the State or Federal agency is

contracting with a supplier to obtain a

designated item, then the cost of the

designated item (and any associated

costs of meeting section 6002

requirements) to the supplier

presumably will be fully recovered in

the contract price. Any costs to small

businesses that are ‘‘procuring agencies’’

(and subject to section 6002) are likely

to be insubstantial. Even if a small

business is required to purchase other

items with recovered materials content,

such items may be less expensive than

items with virgin content.

For these reasons, EPA certifies that

today’s designations will not have a

significant economic impact on a

substantial number of small entities.

Because today’s action does not impose

significant new burdens on small

entities, this rule does not require a final

regulatory flexibility analysis.

The basis for EPA’s conclusions that

today’s rule will not have a significant

impact on a substantial number of small

entities is described in greater detail in

the ‘‘Economic Impact Analysis’’ for the

rule which is located in the RCRA

public docket.

While not a factor relevant to

determining whether the rule will have

a significant impact for RFA purposes,

EPA believes that the effect of today’s

rule would be to provide positive

opportunities to businesses engaged in

recycling and the manufacture of

recycled products. Purchase and use of

recycled products by procuring agencies

increase demand for these products and

result in private sector development of

new technologies, creating business and

employment opportunities that enhance

local, regional, and national economies.

Technological innovation associated

with the use of recovered materials can

translate into economic growth and

increased industry competitiveness

worldwide, thereby, creating

opportunities for small entities.

C. Unfunded Mandates Reform Act of

1995 and Consultation With State,

Local, and Tribal Governments

Under section 202 of the Unfunded

Mandates Reform Act of 1995 (the Act),

Public Law 104–4, which was signed

into law on March 22, 1995, EPA

generally must prepare a written

statement for rules with Federal

mandates that may result in estimated

costs to State, local, or tribal

governments in the aggregate, or to the

private sector, of $100 million or more

in any one year. When such a statement

is required for EPA rules, under section

205 of the Act EPA must identify and

consider alternatives, including the least

costly, most cost-effective or least

burdensome alternative that achieves

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3079

the objectives of the rule. EPA must

select that alternative, unless the

Administrator explains in the final rule

why it was not selected or it is

inconsistent with law. Before EPA

establishes regulatory requirements that

may significantly or uniquely affect

small governments, including tribal

governments, it must develop under

section 203 of the Act a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, giving them

meaningful and timely input in the

development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising them

on compliance with the regulatory

requirements.

EPA has determined that today’s final

rule does not include a Federal mandate

that may result in estimated annualized

costs of $100 million or more to either

State or local governments in the

aggregate, or to the private sector. To the

extent enforceable duties arise as a

result of this rule on State and local

governments, they are exempt from

inclusion as Federal inter-governmental

mandates if such duties are conditions

of Federal assistance. Even if they are

not conditions of Federal assistance,

such enforceable duties do not result in

a significant regulatory action being

imposed upon State and local

governments since the estimated

aggregate cost of compliance for them

are not expected to exceed, at the

maximum, $4.6 million annually. The

cost of enforceable duties which may

arise as a result of today’s rule on the

private sector are estimated not to

exceed $92,000 annually. Thus, today’s

rule is not subject to the written

statement requirement in sections 202

and 205 of the Act.

The newly designated items included

in the CPG may give rise to additional

obligations under section 6002(i)

(requiring procuring agencies to adopt

affirmative procurement program and to

amend their specifications) for state and

local governments. As noted above, the

expense associated with any additional

costs is not expected to exceed, at the

maximum, $4.6 million annually. In

compliance with E.O. 12875, which

requires the involvement of State and

local governments in the development

of certain Federal regulatory actions,

EPA conducts a wide outreach effort

and actively seeks the input of

representatives of state and local

governments in the process of

developing its guidelines.

When EPA proposes to designate

items in the CPG, information about the

proposal is distributed to governmental

organizations so that they can inform

their members about the proposals and

solicit their comments. These

organizations include the U.S.

Conference of Mayors, the National

Association of Counties, the National

Association of Towns and Townships,

the National Association of State

Purchasing Officials, and the American

Association of State Highway and

Transportation Officials. EPA also

provides information to potentially

affected entities through relevant

recycling, solid waste, environmental,

and industry publications. In addition,

EPA’s regional offices sponsor and

participate in regional and state

meetings at which information about

proposed and final designations of items

in the CPG is presented. Finally, EPA

has sponsored buy-recycled education

and outreach activities by organizations

such as the U.S. Conference of Mayors,

the Northeast Recycling Council, the

Environmental Defense Fund, Keep

America Beautiful, and the California

Local Government Commission, whose

target audience includes small

governmental entities.

The requirements do not significantly

affect small governments because they

are subject to the same requirements as

other entities whose duties result from

today’s rule. As discussed above, the

expense associated with any additional

costs to State and local governments, is

not expected to exceed, at the

maximum, $4.6 million annually. The

requirements do not uniquely affect

small governments because they have

the same ability to purchase these

designated items as other entities whose

duties result from today’s rule.

Additionally, use of designated items

affects small governments in the same

manner as other such entities. Thus, any

applicable requirements of section 203

have been satisfied.

D. Executive Order 13132: Federalism

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that 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.’’

Under Executive Order 13132, EPA

may not issue a regulation that has

federalism implications, that imposes

substantial direct compliance costs, and

that is not required by statute, unless

the Federal government provides the

funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This final rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The rule will

not impose substantial costs on States

and localities. As a result of today’s

action, procuring agencies will be

required to perform certain activities

pursuant to RCRA section 6002,

including rule review and

implementation; estimation,

certification, and verification of

designated item procurement; and for

Federal agencies, reporting and record

keeping. As noted above, EPA estimates

that the total annualized costs of today’s

rule will range from $7.6 to $14.8

million. EPA’s estimate reflects the costs

of the rule for all procuring agencies

(i.e., Federal agencies, State and local

agencies that use appropriated Federal

funds to procure designated items, and

government contractors), not just States

and localities. Thus, the costs to States

and localities alone will be even lower

and not substantial. Thus, the

requirements of section 6 of the

Executive Order do not apply to this

rule.

E. Executive Order 13084: Consultation

and Coordination with Indian Tribal

Governments

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian Tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

3080 Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected officials and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities.’’

Today’s Rule does not significantly or

uniquely affect the communities of

Indian tribal governments. The rule

does not impose any mandate on tribal

governments or impose any duties on

these entities. Accordingly, the

requirements of section 3(b) of

Executive Order 13084 do not apply to

this rule.

F. Executive Order 13045: Protection of

Children from Environmental Risks and

Safety Risks

Executive Order 13045, entitled

‘‘Protection of Children from

Environmental Health Risks and Safety

Risks’’ (62 FR 19885, April 23, 1997),

applies to any rule that EPA determines

is (1) ‘‘economically significant’’ as

defined under Executive Order 12866,

and (2) concerns an environmental

health or safety risk that EPA has reason

to believe may have a disproportionate

effect on children. If the regulatory

action meets both criteria, the Agency

must evaluate the environmental health

or safety effects of the planned rule on

children; and explain why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

EPA interprets the E.O. 13045 as

encompassing only those regulatory

actions that are risk based or health

based, such that the analysis required

under section 5–501 of the E.O. has the

potential to influence the regulation.

This rule is not subject to E.O. 13045

because it does not involve decisions

regarding environmental health or safety

risks.

G. National Technology Transfer and

Advancement Act of 1995

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (‘‘NTTAA’’), Public Law

104–113, Section 12(d)(15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures,

business practices) that are developed or

adopted by voluntary consensus

standard bodies. The NTTAA directs

EPA to provide Congress explanations

when the Agency decides not to use

available and applicable voluntary

consensus standards.

This rule does not establish technical

standards. Therefore, the Agency has

not conducted a search to identify

potentially applicable test methods from

voluntary consensus standard bodies.

As part of this rulemaking effort, EPA

has developed guidance for procuring

agencies to use in complying with

section 6002’s obligation to purchase

items with recovered materials content

to the maximum extent practicable.

These recommendations include

minimum recovered materials content

standards and, as previously noted, are

published today in the companion

RMAN for the designated items. In

developing these recommendations,

EPA did consider current voluntary

consensus standards on recovered

materials content.

H. Submission to Congress and the

General Accounting Office

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A Major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a ‘‘major rule’’ as

defined by 5 U.S.C. 804(2). This rule

will be effective January 19, 2000.

IX. Supporting Information and

Accessing Internet

The index of supporting materials for

today’s final CPG III is available in the

RCRA Information Center (RIC) and on

the Internet. The address and telephone

number of the RIC are provided in

ADDRESSES above. The index and the

following supporting materials are

available in the RIC and on the Internet:

‘‘Background Document for the Final

CPG III/RMAN III,’’ U.S. EPA, Office of

Solid Waste and Emergency Response,

September 1999.

Copies of the following supporting

materials are available for viewing at the

RIC only:

‘‘Economic Impact Analysis for the

Final Comprehensive Procurement

Guideline III,’’ U.S. Environmental

Protection Agency, July 14, 1999.

‘‘Telephone Notes, Nylon Carpet With

Backing Containing Recovered

Materials, Between Lynne Gilbert,

Eastern Research Group and Dave

Whitley, Interface Carpet, January, 22,

1999.’’

‘‘E-mail message, Nylon Carpet With

Backing Containing Recovered

Materials, Between Lynne Gilbert,

Eastern Research Group and Dobbin

Callahan, Collins & Aikman, January 26,

1999.’’

‘‘Telephone Notes and Facsimile

Message, Nylon Carpet With Backing

Containing Recovered Materials,

Between Birgette Junior, Eastern

Research Group and Pamela Marple,

Brand, Lowell, and Ryan, June 24,

1999.’’

‘‘National Association of State

Purchasing Officials, 1998/1999

Membership Roster.’’

‘‘List of States with Recycled Content

Product Purchasing Programs.’’

To access information on the Internet

go to www.epa.gov/cpg.

List of Subjects in 40 CFR Part 247

Environmental protection,

Government procurement, Recycling.

Dated: January 10, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40 of the Code of Federal

Regulations, part 247, is amended as set

forth below.

PART 247—COMPREHENSIVE

PROCUREMENT GUIDELINE FOR

PRODUCTS CONTAINING

RECOVERED MATERIALS

1. The authority citation for part 247

is revised to read as follows:

Authority: 42 U.S.C. 6912(a) and 6962;

E.O. 13101, 63 FR 49643, 3 CFR, 1998 Comp.,

p. 210.

2. In § 247.3, the following definitions

are added alphabetically:

§ 247.3 Definitions.

* * * * *

Awards and plaques refers to freestanding statues and boardlike products

generally used as wall-hangings.

* * * * *

Carpet cushion, also known as carpet

underlay, is padding placed beneath

carpet to reduce carpet wear caused by

foot traffic or furniture indentation,

Federal Register / Vol. 65, No. 12 / Wednesday, January 19, 2000 / Rules and Regulations 3081

enhance comfort, and prolong

appearance.

* * * * *

Compost made from yard trimmings,

leaves, grass clippings, and/or food

wastes is a thermophilic converted

product with high humus content.

Compost can be used as a soil

amendment and can also be used to

prevent or remediate pollutants in soil,

air, and storm water run-off.

* * * * *

Flowable fill is a low strength material

that is mixed to a wet, flowable slurry

and used as an economical fill or

backfill material in place of concrete,

compacted soils, or sand.

* * * * *

Industrial drums are cylindrical

containers used for shipping and storing

liquid or solid materials.

* * * * *

Manual-grade strapping refers to

straps of material used with transport

packaging to hold products in place on

pallets or in other methods of

commercial, bulk shipment. Strapping

can also prevent tampering and

pilferage during shipping.

Mats are temporary or semipermanent

protective floor coverings used for

numerous applications, including home

and office carpet protection, car and

truck floor board protection, traction on

slippery surfaces, cushion from floor

hardness, and reduction of injury risk

during athletic events.

* * * * *

Park benches and picnic tables are

recreational furniture found in parks,

outdoor recreational facilities, and the

grounds of office buildings and other

facilities.

* * * * *

Plastic lumber landscaping timbers

and posts are used to enhance the

appearance of and control erosion in

parks, highways, housing developments,

urban plazas, zoos, and the exteriors of

office buildings, military facilities,

schools, and other public use areas.

Playground equipment includes many

components, like slides, merry-gorounds, hand rails, etc., and is found in

parks, schools, child care facilities,

institutions, multiple family dwellings,

restaurants, resort and recreational

developments, and other public use

areas.

* * * * *

Railroad grade crossing surfaces are

materials placed between railroad

tracks, and between the track and the

road at highway and street railroad

crossings, to enhance automobile and

pedestrian safety.

* * * * *

Signage (including sign posts and

supports) is used for identification and

directional purposes for public roads

and highways, and inside and outside

office buildings, museums, parks, and

other public places.

* * * * *

Sorbents (i.e., absorbents and

adsorbents) are materials used to retain

liquids and gases in a diverse number of

environmental, industrial, agricultural,

medical, and scientific applications.

Absorbents incorporate a substance

while adsorbents gather substances on

their surfaces.

* * * * *

3. In § 247.12, add paragraphs (h), (i),

and (j) to read as follows:

§ 247.12 Construction products.

* * * * *

(h) Carpet cushion made from bonded

polyurethane, jute, synthetic fibers, or

rubber containing recovered materials.

(i) Flowable fill containing coal fly

ash and/or ferrous foundry sands.

(j) Railroad grade crossing surfaces

containing coal fly ash, recovered

rubber, or recovered steel.

4. In § 247.14, add paragraphs (c) and

(d) to read as follows:

§ 247.14 Park and recreation products.

* * * * *

(c) Park benches and picnic tables

containing recovered steel, aluminum,

plastic, or concrete.

(d) Playground equipment containing

recovered plastic, steel, or aluminum.

5. In § 247.15, revise paragraph (b)

and add paragraph (e) to read as follows:

§ 247.15 Landscaping products.

* * * * *

(b) Compost made from yard

trimmings, leaves, grass clippings, and/

or food waste for use in landscaping,

seeding of grass or other plants on

roadsides and embankments, as a

nutritious mulch under trees and

shrubs, and in erosion control and soil

reclamation.

* * * * *

(e) Plastic lumber landscaping timbers

and posts containing recovered

materials.

6. In § 247.16, revise paragraph (d)

and add paragraphs (h) through (k) to

read as follows:

§ 247.16 Non-paper office products.

* * * * *

(d) Plastic-covered binders containing

recovered plastic; chipboard and

pressboard binders containing recovered

paper; and solid plastic binders

containing recovered plastic.

* * * * *

(h) Plastic clipboards containing

recovered plastic.

(i) Plastic file folders containing

recovered plastic.

(j) Plastic clip portfolios containing

recovered plastic.

(k) Plastic presentation folders

containing recovered plastic.

7. In § 247.17, add paragraphs (b)

through (g) to read as follows:

§ 247.17 Miscellaneous products.

* * * * *

(b) Sorbents containing recovered

materials for use in oil and solvent

clean-ups and as animal bedding.

(c) Industrial drums containing

recovered steel, plastic, or paper.

(d) Awards and plaques containing

recovered glass, wood, paper, or plastic.

(e) Mats containing recovered rubber

and/or plastic.

(f)(1) Non-road signs containing

recovered plastic or aluminum and road

signs containing recovered aluminum.

(2) Sign supports and posts containing

recovered plastic or steel.

(g) Manual-grade strapping containing

recovered steel or plastic.

[FR Doc. 00–1066 Filed 1–18–00; 8:45 am]

BILLING CODE 6560–50–U