60962 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 247

[SWH–FRL–5909–6]

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 issuing an amendment

to the May 1, 1995 Comprehensive

Procurement Guideline (CPG). EPA is

designating 12 new items that are or can

be made with recovered materials.

These items are shower and restroom

dividers/partitions; consolidated and

reprocessed latex paint for specified

uses; parking stops; channelizers;

delineators; flexible delineators; plastic

fencing for specified uses; garden and

soaker hoses; lawn and garden edging;

printer ribbons; plastic envelopes; and

pallets. In addition, this action clarifies

EPA’s previous designation of floor

tiles, structural fiberboard, and

laminated paperboard as items that can

be made with recovered materials.

The CPG implements section 6002 of

the Resource Conservation and

Recovery Act (RCRA), which requires

EPA to designate items that are or can

be produced with recovered materials

and to recommend practices for the

procurement of designated items by

procuring agencies. Once EPA

designates an item, RCRA requires any

procuring agency using appropriated

Federal funds to procure that item to

purchase it with the highest percentage

of recovered materials practicable.

Today’s action will foster markets for

materials recovered from solid waste by

using government purchasing power to

stimulate the use of these materials in

the manufacture of new products.

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, procuring

agencies are not required to 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 can find all of the

RCRA section 6002 procurement

provisions, as well as EPA’s item

designations, in one location. EPA

inadvertently omitted the limitations

from the codification of agency

requirements, however. Today, EPA is

codifying these procurement limitations

with the affirmative procurement

program portion of the CPG for the

convenience of procuring agencies.

EFFECTIVE DATES: The amendments to

the Comprehensive Procurement

Guideline designating additional

procurement items (§§ 247.3; 247.12

through 247.17) are effective on

November 13, 1998. The amendment

adding the procurement limitations

(§ 247.2(d)) is effective November 13,

1997.

ADDRESSES: The public docket for this

notice is Docket F–97–CP2F–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. The public may copy a

maximum of 100 pages from any

regulatory docket at no charge.

Additional copies cost $0.15/page. The

index and some supporting materials

are available electronically. See Section

VIII of the ‘‘Supplementary

Information’’ section below for

information on accessing the documents

electronically.

FOR FURTHER INFORMATION CONTACT:

General procurement guidelines

information: RCRA Hotline at (800)

424–9346, TDD (800) 553–7672 (hearing

impaired) or, in the Washington, DC

area at (703) 412–9810 or TDD (703)

412–3323.

Technical information on individual

item recommendations: For paper and

paper products, vehicular products,

construction products, non-paper office

products, and pallets: Dana Arnold,

(703) 308–7279; for landscaping

products, transportation products, and

park and recreation products: Terry

Grist, (703) 308–7257.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority

II. Regulated Entities

III. Background

A. Criteria for Selecting Items for

Designation

B. Procurement Limitations of RCRA

Section 6002

C. Clarification of Floor Tiles, Structural

Fiberboard and Laminated Paperboard

Designations

1. Floor Tiles

2. Structural Fiberboard and Laminated

Paperboard

IV. Definitions

V. Comment Summary and Agency’s

Response

A. General Comments

1. Recordkeeping and Reporting

2. Interaction Between RCRA Section 6002

and the Federal Acquisition Regulation

3. Designation of Materials

B. Comments on Proposed Item

Designations

1. Shower and Restroom Dividers

2. Latex Paint

3. Snow Fencing

4. Ink Jet Cartridges

C. Comments on Other Items Considered

for Designation

D. Comments on Public Participation

Process

VI. Availability of Designated Items

VII. Economic Impact Analysis

A. Requirements of Executive Order 12866

1. Summary of Costs

2. Product Cost

3. Summary of Benefits

B. Unfunded Mandates Reform Act of 1995

and Consultation with State, Local, and

Tribal Governments

C. Impacted Entities

D. Regulatory Flexibility Act and Small

Business Regulatory Enforcement

Fairness Act

VIII. Supporting Information and Accessing

Internet

IX. Submission to Congress and the General

Accounting Office

I. Authority

This amendment to the

Comprehensive Procurement Guideline

is promulgated 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, and section

502 of Executive Order 12873, ‘‘Federal

Acquisition, Recycling, and Waste

Prevention’’ (58 FR 54911, October 22,

1993).

II. Regulated Entities

This action may potentially affect

those procuring agencies that purchase

the following: shower and restroom

dividers/partitions, consolidated and

reprocessed latex paint for specified

uses, floor tiles, structural fiberboard,

laminated paperboard, parking stops,

temporary traffic control devices, plastic

fencing for specified uses, garden and

soaker hose, lawn and garden edging,

printer ribbons, plastic envelopes, or

pallets. For purposes of RCRA section

6002, procuring agencies include the

following: (1) any Federal agency; (2)

any State or local agencies using

appropriated Federal funds for a

procurement; or (3) any contractors with

these agencies (with respect to work

performed under the contract). See
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60963

RCRA section 1004(17). The

requirements of section 6002 apply to

such procuring agencies only when

procuring designated items where the

price of the item exceeds $10,000 or the

quantity of the item purchased in the

previous year exceeded $10,000.

Potential regulated entities for this rule

are shown in Table 1.

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 worth of a designated item in a

given year.

State Government .............................................. A State agency that uses appropriated Federal funds to procure $10,000 or more worth of a

designated item in a given year.

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

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities that could

potentially be subject to regulatory

requirements triggered by this action. To

determine whether your procurement

practices are affected by this action, you

should carefully examine the

applicability criteria in 40 CFR 247.2. If

you have questions regarding the

applicability of this action to a

particular entity, consult the persons

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

III. Background

Section 6002(e) of RCRA requires EPA

to designate items that are or can be

made with recovered materials and to

recommend practices to assist procuring

agencies in meeting their obligations

with respect to procurement of

designated items under RCRA section

6002. RCRA requires that each

procuring agency, when purchasing an

EPA-designated item, must purchase

that item composed of the highest

percentage of recovered materials

practicable.

Executive Order 12873 (Executive

Order) establishes the procedure for

EPA to follow in 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.

Concurrent with the CPG, EPA must

publish its recommended procurement

practices for purchasing designated

items, including recovered materials

content levels, in a related Recovered

Materials Advisory Notice (RMAN). The

Executive Order also directs EPA to

update the CPG annually 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. Concurrently, EPA

published the first RMAN (RMAN I) (60

FR 21386).

On November 7, 1996, EPA proposed

to designate 13 additional items (CPG II)

and published draft recommendations

for purchasing those items containing

recovered materials (RMAN II). See 61

FR 57748–57759 and 61 FR 57760–

57766, respectively. EPA also proposed

clarifications of the previous

designations of floor tiles, structural

fiberboard, and laminated paperboard.

In addition, EPA proposed to codify the

RCRA section 6002 limitations on the

affirmative procurement requirements,

which had inadvertently been omitted

from CPG I. Today, EPA is (1)

designating 12 of the items, (2)

clarifying the previous designations of

floor tiles, structural, fiberboard, and

laminated paperboard, and (3) codifying

the procurement limitations. As

explained in section V.B.3 below, EPA

has decided not to designate ink jet

cartridges. The 12 newly-designated

items are listed below under their

associated product category.

Construction Products

Shower and restroom dividers/

partitions

Consolidated and reprocessed latex

paint for specified uses

Transportation Products

Parking stops

Channelizers

Delineators

Flexible delineators

Park and Recreation Products

Plastic fencing for specified uses

Landscaping Products

Garden and soaker hoses

Lawn and garden edging

Non-Paper Office Products

Printer ribbons

Plastic envelopes

Miscellaneous

Pallets

A. Criteria for Selecting Items for

Designation

While not limiting consideration to

these criteria, 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.

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 each procuring

agency that procures an item designated

by EPA to procure the item composed

of 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 it

determines: (1) the item is not

reasonably available within a reasonable

period of time; (2) the item fails to meet

the performance standards set forth in

the agency’s specification; or (3) the

item is available only at an

unreasonable price.

EPA recognized that these limitations

could limit the potential impact of an

individual item designation to the

extent they provide procuring agencies

with a rationale for not purchasing EPAdesignated items with recovered

materials content. (The limitations of

section 6002(c) also effectively describe

the circumstances in which a designated
60964 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

item is ‘‘available’’ for purposes of the

statute.) For this reason, EPA takes into

account the limitations cited in RCRA

section 6002(c) in its selection of items

for designation in the CPG. Thus, in the

May 1, 1995 CPG I, the Agency stated

that it had developed the following

criteria for use in selecting 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 provided a

detailed discussion of these criteria in

the CPG I background documents and

repeated that discussion, for the

convenience of the reader, in Section II

of the document entitled,

‘‘Comprehensive Procurement

Guideline (CPG) II—Supporting

Analyses.’’ A copy of this document is

included in the RCRA public docket for

the proposed CPG II rule, docket F–96-

CP2P-FFFFF.

In CPG I, EPA stated that it had

adopted two approaches in its

designation of items that are made with

recovered materials. For some items,

such as floor tiles, the Agency

designated broad categories of items and

provided information in the RMAN as to

their appropriate applications or uses.

For other items, such as plastic trash

bags, EPA designated specific items,

and, in some instances, included in the

designation the specific types of

recovered materials or applications to

which the designation applies. The

Agency explained these approaches to

designating items in the preamble to

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

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 the

designation of a broad category of items

in the CPG requires them (1) to procure

all items included in such category with

recovered materials content and (2) to

establish an affirmative procurement

program for the entire category of items,

even where specific items within the

category may not meet current

performance standards. This is clearly

not required under RCRA as

implemented through the CPG and the

RMAN. RCRA section 6002 does not

require a procuring agency to purchase

items with recovered materials content

that are not available or that 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 with recovered materials content is

only available at an unreasonable price

or the purchase of such item is

inconsistent with maintaining a

reasonable level of competition.

However, EPA stresses that, when

procuring any product for which a

recovered materials alternative is

available that meets the procuring

agency’s performance needs, if all other

factors are equal, the procuring agency

should seek to purchase the product

made with highest percentage of

recovered materials practicable.

The items designated today have all

been evaluated with respect to the

EPA’s criteria. Details of these

evaluations are discussed in ‘‘Final CPG

II/RMAN II Background Document,’’

which has been placed in the docket for

the final CPG II and RMAN II and is

available electronically. (See Section

VIII below for Internet access

directions.)

B. Procurement Limitations of RCRA

Section 6002

In the May 1, 1995 CPG, the Agency

amended 40 CFR 247.2 to include the

RCRA provisions on the applicability of

the guidelines to procuring agencies.

(See 60 FR 21381.) In that amendment,

EPA inadvertently failed to include the

statutory exceptions to the general

requirement to purchase designated

items set forth in section 6002(c)(1) (A)

through (C). Today, in § 247.2(d), EPA is

adding these procurement limitations.

As discussed in the previous section,

these provisions authorize a procuring

agency to decide not to purchase EPA

designated items with recovered

materials based on the following

determinations:

1. The agency is unable to secure a

satisfactory level of competition;

2. The item is not reasonably available

within a reasonable period of time;

3. The item fails to meet the

reasonable performance standards set

forth in the agency’s specification; and

4. The item is available only at an

unreasonable price.

EPA received no comments on the

proposed language and, as noted above,

is today amending § 247.2 to add these

provisions. EPA is making this

amendment effective immediately.

Section 553(d) of the Administrative

Procedure Act authorizes an exception

to the general requirement that a

substantive rule must be published 30

days before its effective date where an

agency determines there is good cause

for doing so. As explained above, these

amendments merely codify the statutory

conditions spelled out in section

6002(c) under which a procuring agency

may determine not to procure items

designated in the guidelines. Today’s

amendments do not change a procuring

agency’s current obligations under

section 6002 of RCRA to procure

designated items to the maximum extent

practicable but merely restate in the

regulations the exceptions to the general

requirement provided in the statute.

Under the circumstances, there is good

cause for making these amendments

effective immediately.

C. Clarification of Floor Tiles, Structural

Fiberboard and Laminated Paperboard

Designations

In the May 1, 1995 CPG, EPA

designated floor tiles, structural

fiberboard, and laminated paperboard

and, in the RMAN, provided

recommendations for purchasing these

items containing recovered materials.

EPA has since learned that there may be

some confusion on the part of procuring

agencies as to their obligation to

purchase these items for specific

applications. In fact, the Agency

received inquiries regarding the

requirements to purchase floor tile and

structural fiberboard for use as

acoustical ceiling tile. Based on these

inquiries, the Agency concluded that it

should clarify the obligations of

procuring agencies with respect to these

items. Additionally, the Agency

published a separate notice in the

Federal Register providing additional

information to assist procuring agencies

in determining their obligation to

purchase designated items for specific
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60965

applications and to clarify these issues.

See 61 FR 58067, November 12, 1996.

1. Floor Tiles

In the original CPG, EPA designated

19 items that are, or can be, produced

with recovered materials content,

including floor tiles and patio blocks

containing recovered rubber or plastic

[40 CFR 247.12(e)]. The Agency

designated these items as broad

categories of items, encompassing many

different applications. In the companion

RMAN, however, the Agency

recommended that procuring agencies

purchase floor tiles with specified

minimum recovered rubber or plastic

content for ‘‘heavy duty/commercial

type’’ applications only. EPA limited

the recommended applications to

heavy-duty/commercial-type uses

because, at the time CPG I was issued,

the Agency was not aware of any

manufacturers that made floor tile with

recovered materials for standard office

flooring. However, at least two

manufacturers were reportedly

considering using recovered materials in

standard office flooring and one

manufacturer indicated that these

products would be available in 1995,

the year CPG I was issued. This

information suggested to the Agency

that floor tiles could be made with

recovered materials for standard office

flooring. Therefore, the Agency elected

to broadly designate floor tiles and limit

its initial recommendations to heavyduty/commercial type uses. The Agency

has no information that standard office

floor tiles are currently commercially

available containing recovered

materials.

In CPG I and RMAN I, EPA used the

term ‘‘heavy-duty, commercial-type

uses’’ because there were no published

industry-wide definitions to describe

the applications to which the recovered

materials requirements of the CPG

should be applied. In the supporting

analysis for RMAN I, EPA explained

what it meant by ‘‘heavy-duty,

commercial-type applications.’’ There,

the Agency described, in general terms,

a number of commercial and industrial

settings where the use of such tiles with

recovered materials content would be

appropriate. These would include

entranceways in airports and stores,

furniture showrooms, skating rinks and

fitness centers. EPA has learned that

this discussion may have caused some

confusion. Some procuring agencies

may have confused EPA’s description of

the areas where, given special

circumstances, such tiles might be

appropriate, with an EPA

recommendation that such tile should

always be used in such settings. This

was not the Agency’s intention.

Therefore, the Agency is today

clarifying its recommendation that the

use of these tiles would be appropriate

for specialty purpose uses at such

locations (e.g., raised, open-web tiles for

drainage on school kitchen flooring).

Such specialty purpose uses involve

limited flooring areas where grease, tar,

snow, ice, wetness or similar substances

or conditions are likely to be present.

Commenters also supported the Agency

in its views about the limitations on

uses for floor tiles containing recovered

materials. Thus, EPA is not, at this time,

recommending floor tile made with

recovered materials for standard office

or more general purpose uses.

2. Structural Fiberboard and Laminated

Paperboard

In CPG I, EPA designated structural

fiberboard and laminated paperboard

products for applications other than

building insulation [40 CFR 247.12(b)].

EPA included acoustical and nonacoustical ceiling tiles and lay-in panels

in its list of applications to which the

designation applies. Since CPG I was

issued, one manufacturer of mineral

fiber ceiling products has expressed

concern over the scope of the structural

fiberboard and laminated paperboard

designations, particularly as they apply

to acoustical and non-acoustical ceiling

tiles and lay-in panels.

EPA is clarifying that the specific

applications included in the structural

fiberboard and laminated paperboard

designation, i.e., building board,

sheathing, shingle backer, sound

deadening board, roof insulating board,

insulating wallboard, acoustical and

non-acoustical ceiling tile, acoustical

and non-acoustical lay-in panels, floor

underlayments, and roof overlay

(coverboard), apply to the purchase of

cellulosic fiber structural fiberboard and

laminated paperboard products only.

The listed applications, and therefore

the designation, do not apply to

products made from other similar or

competing materials. In other words, if

a procuring agency is purchasing a

cellulosic fiberboard acoustical ceiling

tile, then the agency should purchase

the ceiling tile made with recovered

materials. However, if the agency

prefers to purchase a ceiling tile made

with mineral fiber rather than

fiberboard, it is free to do so. In the

latter instance, there is no requirement

to purchase a cellulosic fiberboard

ceiling tile.

IV. Definitions

Today, in § 247.3, EPA is adding

definitions for the following new itemspecific terms: channelizers,

delineators, flexible delineators, garden

hoses, latex paint, lawn edging, pallets,

parking stops, plastic fencing, printer

ribbons, restroom dividers/partitions,

shower dividers/partitions, and soaker

hoses. These definitions are based on

industry definitions, including ASTM or

other standard specifications, or

represent descriptions of the scope of

items being designated.

For several items being designated

today, EPA recommends in the final

RMAN II that procuring agencies use

two-part content levels—a

postconsumer recovered materials

component and a total recovered

materials component. In these instances,

EPA found that both types of materials

were being used to manufacture the

products. Recommending only

postconsumer content levels would be

contrary to the RCRA mandate to

maximize the use of recovered materials

because it would fail to acknowledge

the contribution to solid waste

management made by manufacturers

using other manufacturers’ byproducts

as feedstock.

Because the recommendations for the

items being designated today use the

terms ‘‘postconsumer materials’’ and

‘‘recovered materials,’’ the definitions

for these terms are repeated in this

action as a reference for the convenience

of the reader. These definitions were

part of CPG I and can be found 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 such term

does not include those materials and

byproducts generated from, and commonly

reused within an original manufacturing

process.

V. Comment Summary and Agency’s

Response

EPA received submittals from 20

commenters in response to the proposed

CPG II and the draft RMAN II. These

commenters represented various

interests, including Federal agencies,

State agencies, local governments,

product manufacturers, and product

users. A summary of the comments and

EPA’s response can be found in ‘‘Final

CPG II/RMAN II Background

Document.’’

In this section, EPA discusses the

major comments regarding the proposed

CPG II. For a discussion of the major

comments pertaining to the draft RMAN

II, see the preamble to the notice of
60966 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

availability of the final RMAN II, which

is found in the notices section of today’s

Federal Register.

A. General Comments

1. Recordkeeping and Reporting

Comment: A Federal agency

expressed concern about the burden of

tracking purchases of each procurement

item designated by EPA and the

potential difficulty in establishing the

infrastructure to institute policies and

procedures at a time when

administrative staff is being reduced.

The commenter further noted that the

use of government credit cards increases

the difficulty of tracking purchases. In

addition, the commenter suggested that

an interagency reporting task force

convened by the Office of Federal

Procurement Policy (OFPP) and the

Office of the Federal Environmental

Executive (OFEE) should address

streamlining reporting requirements.

Response: Because EPA addressed the

RCRA reporting requirements in the

CPG I rulemaking, reporting issues were

not addressed as part of the CPG II

proposal. See, for example, the

background documents for the final CPG

I and RMAN I for EPA’s previous

discussions of the RCRA annual review

and reporting requirements: ‘‘Items

Designated in the Comprehensive

Procurement Guideline—Supporting

Analyses,’’ pages 40–41, and ‘‘RMAN

for Items Designated in the

Comprehensive Procurement

Guideline—Supporting Analyses,’’

pages 8–9.

The requirement that Federal

procuring agencies report on their

procurement of EPA-designated items is

mandated by RCRA section 6002(g) and

Section 301 of Executive Order 12873.

Therefore, reporting is not at the

discretion of OFEE or EPA. While EPA

and OFEE are cognizant of the labor

necessary to collect and report annual

procurement data, neither office is

authorized to significantly change the

data contained in the final report.

As noted by the commenter, OFEE

and OFPP chartered an interagency

steering committee to identify

streamlining initiatives for the data

collection requirements. As a result of

the committee’s recommendations, the

agency data collection requirements for

FY96 were reduced by 1⁄3 by capturing

data in a more efficient manner. For

agencies that requisition CPG items

from the U.S. General Services

Administration’s (GSA) Federal Supply

System, the supply center tracks and

reports on the agencies purchases.

While this significantly reduces an

agency’s data collection and reporting

burden, the final report contains the

same itemized information.

2. Interaction Between RCRA Section

6002 and the Federal Acquisition

Regulation

Comment: A Federal agency raised

issues specific to the Federal

Acquisition Regulation (FAR), which

governs Federal acquisition activities.

The agency stated that the proposed

CPG II and draft RMAN II did not

adequately address the importance of

and the responsibility of key nonprocurement personnel, who generally

develop and define a procuring agency’s

environmental needs. The agency

referenced provisions of the FAR.

Additionally, the agency stated that the

draft RMAN II provides no specific

guidance on the use of required sources,

such as Federal Prison Industries

(UNICOR) and Javits-Wagner-O’Day

(JWOD) participating non-profit

agencies.

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 I to ‘‘Final CPG

II/RMAN II Background Document,’’

EPA states 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 27, 1997, the Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council issued an

interim 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.

As the commenter indicated, the FAR

specifies the role of contracting officers

and other agency personnel in

acquisitions, as well as providing for

implementation of the required sources

requirements and the RCRA section

6002 affirmative procurement

requirements. To the extent that the

FAR generally dictates use of certain

required sources like UNICOR, EPA

believes that it is reasonable to assume

that federal procuring agencies will look

to such sources for procurement of

designated items. In fact, required

sources such as UNICOR and the

National Industries for the Blind offer

several of the items previously

designated by EPA (e.g., toner

cartridges, recycled paper products).

Therefore, EPA refers procuring

agencies to the FAR for guidance

regarding these acquisitions issues.

3. Designation of Materials

Comment: A commenter requested

that EPA designate steel in order to

recognize that this material is

recyclable, has a high recycling rate, and

contains recovered materials.

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 products,

in response to customer demand.

However, RCRA specifically requires

EPA to designate products that are or

can be made with recovered materials,

not the component materials used in

those products. Accordingly, EPA

designates products that are

manufactured with steel, but not

materials, such as steel, that can contain

recovered materials.

B. Comments on Proposed Item

Designations

No commenters opposed the

designations of the following items:

parking stops, channelizers, delineators,

flexible delineators, garden and soaker

hoses, lawn and garden edging, printer

ribbons, plastic envelopes, and pallets.

EPA is promulgating these items as

proposed. Commenters suggested

revisions to the designations of shower

and restroom dividers, latex paint, and

snow fencing, and opposed the

proposed designation of ink jet

cartridges. In response, EPA is

designating shower and restroom

dividers and latex paint, with

modifications, and revising the

designation of snow fencing to plastic

fencing for specific uses. EPA is not

designating ink jet cartridges at this

time. The comments on shower and

restroom dividers and snow fencing,

and the significant comments pertaining

to the proposed designations of latex

paint and ink jet cartridges, as well as

EPA’s response, are discussed in the

following subsections. For a full

discussion of the comments and EPA’s

response, including additional research

conducted by EPA, see ‘‘Final CPG II/

RMAN II Background Document.’’

1. Shower and Restroom Dividers

Comment: EPA received one comment

suggesting that shower and restroom

dividers be referred to as dividers/

partitions.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60967

Response: After additional research

into industry practices, EPA found that

both of the terms—‘‘partitions’’ and

‘‘dividers’’—are commonly used.

Generally speaking, ‘‘partition’’ implies

that a door is used, and ‘‘divider’’

implies a dividing wall. Based on the

comment and the additional research,

EPA is revising the term for this item in

the final CPG II and companion RMAN

II to ‘‘shower and restroom dividers/

partitions.’’

2. Latex Paint

Comment: A commenter opposed the

proposed designation of latex paint

based on concerns about performance

and availability. The commenter further

noted that the proposed designation was

overly broad and did not reflect the

variety of different latex paint

applications in government buildings

and their performance requirements.

The commenter suggested that EPA

could limit the designation and

recommendations to interior and

exterior architectural applications

where color, consistency of

performance, and durability are not

primary concerns and a spray-gun

application is not used.

EPA met with the commenter on June

17, 1997 to discuss this and other

comments. A copy of the meeting notes

has been placed in the RCRA docket for

the final CPG II.

In supplemental comments, the

commenter suggested that EPA

distinguish between consolidated and

reprocessed latex paints. The

commenter suggested that EPA revise

the designation so as to designate only:

• Consolidated latex paint used for

covering graffiti, where consistent color

and consistency of performance are not

primary concerns.

• Reprocessed latex paint used for

interior and exterior architectural

applications where the reprocessed

latex paint meets all end use

specifications (e.g., color, weathering,

durability, hiding power, and

applicability) for a particular

application.

These suggestions are similar to the

applications for reprocessed and

consolidated latex paints that EPA had

recommended in the draft RMAN II.

The commenter stated that adding the

language about end use specifications in

the suggested designation would

alleviate paint industry concerns that

the listing of latex paints will require

the use of reprocessed latex paints for

all interior and exterior uses without

regard to any performance criteria. The

commenter further stated that the

selection of latex paint for a particular

application is a complex process and

that, while the GSA specification for

‘‘recycled’’ latex paint covers certain

performance attributes, it may not

include all of the attributes necessary

for a particular application. The

commenter referenced three ASTM latex

paint specifications that the commenter

believes procuring agencies should

consider in evaluating whether

reprocessed latex paint has the

appropriate performance attributes for a

particular application. A copy of the

supplemental comments is included in

the docket for the final CPG II.

Response: EPA agrees that

reprocessed and consolidated latex

paints are not suitable for all

applications. In the proposed CPG II,

EPA noted, for example, that there is

little available information on the

performance of reprocessed or

consolidated paints for nonarchitectural applications. See 61 FR

57752. In the draft RMAN II, EPA

recommended the use of consolidated

paint in limited applications, such as

covering graffiti, where color and

consistency of performance are not

primary concerns. EPA recommended

the use of reprocessed paint for interior

and exterior architectural applications.

See Section C–7 of the draft RMAN II at

61 FR 57763.

In researching latex paint for the

proposed CPG II, EPA identified a latex

paint study by the California

Polytechnic University (CalPoly). The

CalPoly study included testing of

reprocessed and consolidated latex

paints for various key parameters that

measure the performance and durability

of paint for a number of different

applications. The CalPoly study

concluded that reprocessed paints are

suitable for these applications reviewed

in the study. A copy of this study was

included in the docket for the proposed

CPG II and draft RMAN II, docket F–96–

CP2P–FFFFF. Both the GSA’s

Engineering and Commodity

Management Division and CalPoly

found that latex paints containing

postconsumer materials can be

manufactured to provide consistent

performance, normal coverage and

hiding of the underlying surface, and

durability. In addition, the GSA

specification provides for testing of

color and application properties, among

other requirements.

Latex paints containing postconsumer

materials also can be formulated to be

used in spray-guns. According to paint

manufacturers and municipalities

contacted by EPA, spray applications of

reprocessed latex paint pose few, if any,

problems as long as the paint is clean

and has been filtered properly. EPA

notes, however, that some users have

encountered problems with clogged

spray nozzles, and one manufacturer

recommends using a larger diameter

spray tip to ensure that the nozzle will

not become clogged. GSA specification

TT–P–2846 requires that the

reprocessed and consolidated latex

paint meet specified brushing, roller

coating, and spraying properties, which

should ensure that manufacturers

properly filter their products.

EPA also conducted additional

research into the applications for which

agencies currently are using reprocessed

latex paints. EPA found that agencies

currently are using reprocessed paints

for the same uses for which they would

normally use latex paint—e.g., interior

and exterior wallboard, ceilings, and

trim; exterior gutter boards; and

concrete, stucco, masonry, and wood, as

well as metal surfaces.

After considering the comments and

conducting further research on

reprocessed latex applications, EPA has

concluded that the proposed

designation of ‘‘latex paint’’ is too broad

given the uses for which consolidated

and reprocessed latex paints currently

are available. As discussed above in

Section III.A, EPA sometimes designates

broad category items and provides

information in the RMAN as to their

appropriate applications or uses. In

other instances, EPA designates specific

items and might include in the

designation the specific types of

applications to which the designation

applies. The approach that EPA uses

depends on the whether items

manufactured from other types of

materials or for other applications are

made with or could contain recovered

materials. In the past, if EPA was not

aware that items used for other

applications were available, EPA

limited its designations so as not to

create an unnecessary burden on

agencies to try to purchase an item that

is not available. (See the preamble to

CPG I, 60 FR 21373, May 1, 1995, for a

more detailed discussion of EPA’s

approach.)

Based on the available information,

EPA has concluded that consolidated

latex paints are currently used for

graffiti abatement. EPA further has

determined that reprocessed latex paints

are available for architectural

applications, but not for nonarchitectural applications, such as

marking pavements or athletic fields.

EPA also agrees with the commenter

that reprocessed latex paints may not be

available for all architectural

performance needs.

Therefore, to avoid confusion by

procuring agencies about the scope of

the latex paint designation, EPA has
60968 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

concluded that it is preferable to limit

the scope of the latex paint designation,

rather than designating the broad

category ‘‘latex paint,’’ and

recommending specific applications for

using consolidated and reprocessed

latex paints in RMAN II. A narrower

designation will enable procuring

agencies to focus their procurement

efforts on the types of latex paint

currently available either through GSA

or directly from paint manufacturers.

Therefore, in today’s final CPG II, EPA

is revising the broad ‘‘latex paint’’

designation to provide the following

specific designations:

• Consolidated latex paint used for

covering graffiti.

• Reprocessed latex paint used for

interior and exterior architectural

applications such as wallboard, ceilings,

and trim; gutter boards; and concrete,

stucco, masonry, wood, and metal

surfaces.

Under this revised designation,

procuring agencies must purchase

reprocessed latex paint for the interior

and exterior architectural applications

for which they would ordinarily use

latex paint, such as wallboard, concrete,

stucco, masonry, wood, and metal.

Procuring agencies requiring a latex

paint not meeting GSA’s general

‘‘recycled’’ latex paint specification

should determine whether a latex paint

containing recovered materials is

available and if not, may use a latex

paint not containing recovered materials

for that particular application.

As discussed in section III.B above,

RCRA section 6002 provides that a

procuring agency is not required to

purchase an EPA-designated item

containing recovered materials if that

item is not reasonably available or fails

to meet the reasonable performance

standards set forth in the agency’s

specifications. Thus, if an agency has a

particular need (e.g., color, weathering,

durability, hiding power) for a

particular application, and consolidated

or reprocessed latex paint is not

available (or does not meet that

specification), the agency may purchase

a latex paint not containing recovered

materials. Given the obligation of

procuring agencies to procure

designated items with the highest

percentage of recovered materials

practicable, an agency should

thoroughly research the availability of

consolidated or reprocessed latex paint

meeting its specifications.

However, because RCRA provides for

performance exceptions to the

requirement to purchase EPAdesignated items containing recovered

materials, it would be redundant for

EPA to include performance

considerations in the description of the

designation of consolidated and

reprocessed latex paints. For this

reason, in the final designations

published today, EPA has not included

the language about end use

specifications suggested by the

commenter.

Comment: The commenter also had

noted that an Army Corps of Engineers

study of reprocessed and consolidated

latex paints had not yet been completed.

The commenter stated that it was

therefore premature for EPA to

designate latex paints.

Response: EPA noted in the

background document for the proposed

CPG II that the Paint Technology Center

at the U.S. Army Construction

Engineering Research Laboratories

(USACERL) was planning to test the

performance of latex paint containing

postconsumer materials. See page 28,

‘‘Comprehensive Procurement

Guideline (CPG) II—Supporting

Analyses,’’ August 1, 1996. EPA

contacted USACERL about the study of

reprocessed latex paint. USACERL

informed EPA that it does not have any

specific concerns about the performance

qualities of reprocessed latex paint in

different applications. Rather,

USACERL tested reprocessed latex

paints to confirm that they met GSA

specification TT–P–2846 for ‘‘recycled’’

latex paints. USACERL also tested

reprocessed latex paints against the GSA

specifications for interior and exterior

latex paints. To date, USACERL found

that the reprocessed paints tested met

the specifications for recycled latex

paint and interior latex paints.

USACERL is completing testing against

the exterior paint specification, but the

reprocessed latex paints performed well

against the exterior paint tests

conducted to date. Based on this

information about the results of the

USACERL testing of reprocessed and

consolidated latex paints, EPA does not

believe that the designation of latex

paint should be delayed pending the

final outcome of the USACERL study.

Further, USACERL informed EPA that

the Army uses acrylic latex paints to

paint primed metal and expressed

concern only about the availability of

reprocessed latex paint containing

100% acrylic. USACERL had not

researched the availability of this item,

however. EPA notes that under RCRA

section 6002, a procuring agency is not

required to purchase an EPA-designated

item containing recovered materials if

that item does not meet the agency’s

reasonable performance standards or if

the item is not reasonably available. If

the Army requires acrylic latex paints

for a particular application and this item

is not available containing recovered

materials, then the Army is not required

to purchase latex paint containing

recovered materials for that application.

For such situations, EPA has previously

recommended that agencies place a

statement in their affirmative

procurement programs indicating that

the item is not available.

Because the purpose of the

government buy-recycled program is to

develop markets for recovered materials,

EPA is reluctant to exclude acrylic latex

paints from the scope of the latex paint

designation. Rather, EPA believes that

the Army should determine periodically

whether acrylic latex paints containing

recovered materials are available in

order to encourage the recovery of this

type of paint from the waste stream.

Further, EPA notes that during

development of CPG II, neither the

Army nor any other Federal agency

requested that EPA limit the scope of

the designation. Therefore, in the final

CPG II, EPA is designating latex paints

and not excluding acrylic latex paints.

Comment: The commenter further

stated that EPA had failed to examine

the true costs of using reprocessed latex

paint because it is ‘‘likely’’ that more

coats of reprocessed paint would be

required and ‘‘it seems likely that’’ more

frequent repainting will be required

where reprocessed latex paint is used.

The commenter provided no

documentation to support these

comments.

Response: The information available

to EPA from research, product testing by

CalPoly, and users indicates that

reprocessed latex paints cover the same

as virgin latex paints and do not require

more frequent repainting. This

information is included in the record for

this rulemaking. According to the

CalPoly research report and additional

research conducted by EPA, reprocessed

and consolidated paints meet

specifications for sag resistance (a

measure of a paint’s tendency to run on

a vertical surface), contrast ratios

(ability to hide the underlying surface),

and scrub resistance (an indication of

the resistance of a paint film to repeated

washing or scrubbing). None of the

users contacted by EPA had experienced

problems with paint coverage or

durability. Based on this testing and use

information, EPA believes that

procuring agencies will not incur

additional costs from extra or more

frequent coats of paint.

Comment: The commenter also noted

that reprocessed and consolidated latex

paints are not universally available in

the United States.

Response: EPA has never limited its

designations only to items that are
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60969

‘‘universally’’ available or immediately

available in every part of the United

States. Because the purpose of the

federal buy-recycled program is to

develop markets for, and spur

development of, products containing

recovered materials, it has always been

understood that these items might not

be available to all procuring agencies in

all instances. Nor does RCRA specify

universal availability as a criteria for

EPA to consider when designating

items. Rather, it is expected that, as

procuring agencies seek to purchase

products containing recovered

materials, these items will become more

widely and universally available. For

this reason, RCRA section 6002 provides

that procuring agencies are not required

to buy an EPA-designated item

containing recovered materials if that

item is not available within a reasonable

time.

EPA explicitly recognized this early

in its development of the guidelines

program. Thus, for example, in the first

procurement guideline issued in 1983,

EPA designated cement and concrete

containing coal fly ash, even though

coal fly ash was not available in every

part of the country. EPA recommended

that agencies provide incentives for

greater availability by allowing for the

use of coal fly ash as an optional or

alternate material. EPA stated that

‘‘[a]llowing fly ash will also serve as an

incentive to potential users in that area.

Contractors will not make the

commitment necessary to use fly ash

unless it is more readily accepted.

Including it in bid solicitations and

allowing it to be used provides this

incentive.’’ See 48 FR 4242, January 28,

1983.

3. Snow Fencing

Comment: GSA recommended that

EPA revise the definition of ‘‘snow

fencing’’ by adding ‘‘and to delineate

construction areas.’’

Response: EPA reviewed its research

into snow fencing and found that plastic

fencing containing recovered materials

can be used for several applications,

including control of drifting snow and

sand and as a warning or safety barrier

at construction areas. Plastic fencing

used in these applications is called

many names—snow fencing, temporary

fencing, beach or dune fencing, warning

barrier, and safety barrier. While ‘‘snow

fencing’’ is a commonly used term, EPA

agrees with GSA that using this term

alone can mislead procuring agencies

about the scope of EPA’s designation.

Therefore, in § 247.14(b) of today’s final

CPG II, EPA is revising the designation

of ‘‘snow fencing’’ as follows: plastic

fencing containing recovered plastic for

use in controlling snow or sand drifting

and as a warning/safety barrier in

construction or other applications. EPA

also is changing the term ‘‘snow

fencing’’ to ‘‘plastic fencing’’ in the

definitions and adding the phrase ‘‘and

to provide a warning or barrier in

construction and other areas’’ to the

definition.

4. Ink Jet Cartridges

Commenters raised a number of

concerns in opposing the proposed

designation of ink jet cartridges. These

comments raised solid waste,

performance, quality, availability, and

patent and trademark concerns. After

considering the information submitted

by commenters, EPA has concluded that

there is insufficient evidence to support

a designation of ink jet cartridges at this

time. On April 14, 1997, EPA published

a Notice of Data Availability in the

Federal Register (62 FR 18072) to notify

interested parties of the tentative

decision not to designate ink jet

cartridges, summarize the information

available to the Agency, and request

further public comment.

EPA received only two responses to

the April 14 notice—one from a vendor

of ink jet refilling equipment and

additional information from one of the

original commenters. The vendor

appears to have promising technology

for resolving many of the performance

and solid waste issues raised by

commenters. The vendor did not,

however, submit sufficient information

to change EPA’s earlier conclusion that

there is insufficient information to

support designating ink jet cartridges at

this time. In particular, the commenter

did not address the lack of industry

quality and performance standards.

Therefore, EPA has decided not to

designate ink jet cartridges in today’s

final CPG II. EPA also is deleting the

recommendations for purchasing ink jet

cartridges from the final RMAN II

published in the notice section of

today’s Federal Register. EPA will

continue to monitor developments in

ink jet cartridge and refilling/

remanufacturing technology and will

consider designating ink jet cartridges in

the future.

C. Comments on Other Items

Considered for Designation

In the background document for the

proposed CPG II, EPA stated that it had

considered the following 12 items and

determined that it was inappropriate to

designate them: lead-acid batteries,

water retention systems, flat sheet glass,

wall covering, ceramic and glass tile,

glass fiber-reinforced concrete, curbing,

dock bumpers, glass beads for reflective

paint, magazine boxes, rulers, and pallet

stretch wrap. EPA requested additional

information demonstrating that the

items should be reconsidered for

possible future designation. No

comments were submitted on these

items or on EPA’s decision not to

designate them. Therefore, EPA is no

longer considering these items for future

designation in the CPG.

D. Comments on Public Participation

Process

On September 20, 1995, EPA issued a

notice in the Federal Register

explaining the procedures for interested

persons to (1) suggest items for EPA to

consider for designation in future

updates to the CPG and (2) provide

information for EPA to use in

developing or revising its

recommendations for recovered

materials content levels contained in the

RMANs that accompany the CPG

updates (60 FR 48714). EPA stated that

it would issue annual notices to request

additional information from interested

persons.

No comments were received on these

procedures, and EPA plans to continue

to use them. Over 30 commenters

submitted information on items for EPA

to consider. Some of these comments

provided supporting information for

items designated in today’s CPG II. EPA

currently is evaluating the other items

for potential designation in future CPG

updates. Because EPA is still

considering these items, we will not be

issuing annual notices requesting

additional suggestions and information.

However, persons wishing to submit

information for EPA to consider may

send it to: Buy Recycled Program, U.S.

Environmental Protection Agency,

5306W, 401 M Street, SW., Washington,

DC 20460. Any submittals should

address the seven areas listed in the

September 20, 1995 Federal Register

notice. See 60 FR 48715.

VI. Availability of Designated 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 24

items designated in the original 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 VIII below for

Internet access information.) Procuring

agencies should contact the

manufacturers/vendors directly to

discuss their specific needs and to
60970 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

obtain detailed information on the

availability and price of recycled

products meeting those 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 XV of the

document, ‘‘Final CPG II/RMAN II

Background Document’’ for more

detailed information on these other

sources of information.

State and local recycling programs are

also a potential source of information on

local distributors and availability. 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 II. Also included in the

public docket is a list of states with

recycled content products purchasing

programs, current as of April 1994.

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 II.

Environmental Newsletters, Inc. can be

reached at 703 758–8436 for further

information.

Finally, EPA is considering

mechanisms to increase the electronic

dissemination of information about the

items designated in the CPG, such as a

buy-recycled home page on the Internet.

If the Agency decides to implement

such mechanisms, we will provide

public notice in the Federal Register in

concert with future revisions to the

CPG.

VII. Economic Impact Analysis

A. Requirements of Executive Order

12866

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. To

enable the Agency to evaluate the

potential impact of today’s action, EPA

has prepared an Economic Impact

Analysis (EIA), as discussed below. For

more information on the estimated

economic impact of today’s rule, see the

‘‘Economic Impact Analysis for the

Final Comprehensive Procurement

Guideline II.’’

1. Summary of Costs

EPA estimated that the annualized

costs of the proposed rule to designate

13 items would fall in the range of $4.8

to $8.7 million. Because today’s final

rule designates 12 items, rather than 13

items, EPA revised the economic impact

analysis to reflect the fact that fewer

items are being designated than

originally proposed.

As shown in Table 2 below, EPA

estimates that the annualized costs of

today’s rule will range from $4.5 to $8.4

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

drive 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 II AMENDMENTS TO ALL PROCURING AGENCIES

Procuring agency

Total

annualized

costs ($1000)

Best estimate

total

annualized

costs ($1000)

Federal Agencies ..................................................................................................................................................... 5,008–2,584 5,008

States ....................................................................................................................................................................... 926–520 926

Local Governments .................................................................................................................................................. 2,337–1,324 1,700

Contractors ............................................................................................................................................................... 81–27 54

Total ......................................................................................................................................................................... 8,352–4,455 8,352

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

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.

With regard to possible impacts to

business, including small businesses,

there may be both positive and negative

impacts to individual 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
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60971

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 recovered

from municipal solid waste.

EPA is unable to determine the

number of businesses, including small

businesses, that may be adversely

impacted by today’s final rule. It is

possible that if a business that currently

supplies products to a procuring agency

uses virgin materials only, the

amendments to the CPG may reduce its

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 their virgin

counterparts. 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

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 (e.g.,

from reinking ribbons or repairing

pallets). Waste prevention can reduce

the nation’s reliance on natural

resources by reducing the amount of

materials used in making products. Less

raw materials use 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,

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; 1,000

lbs. of coal; and 40 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

realizing 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 engaged in

recycling activities.

B. 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),

P.L. 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 costeffective or least burdensome alternative

that achieves 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, $2.6 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 $54,000 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, $2.6 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,
60972 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

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, $2.6 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.

C. Impacted Entities

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 entities that would be

impacted based on information

regarding 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.

D. 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.

The Administrator 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 12 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

12 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.

Therefore, EPA provides the following

certification under the Regulatory

Flexibility Act, as amended by the

Small Business Regulatory Enforcement

Fairness Act. Pursuant to the provision

at 5 U.S.C. § 605(b), I hereby certify 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.
Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations 60973

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.

VIII. Supporting Information and

Accessing Internet

The index of supporting materials for

today’s final CPG II 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:

‘‘Final CPG II/RMAN II Background

Document,’’ U.S. EPA, Office of Solid

Waste and Emergency Response,

September 1997.

Copies of the following supporting

materials are available for viewing at the

RIC only:

‘‘Economic Impact Analysis for the

Final Comprehensive Procurement

Guideline II,’’ U.S. Environmental

Protection Agency, August 1997.

‘‘Ex Parte Meeting Notes, Meeting

Between U.S. Environmental Protection

Agency and National Paint & Coatings

Association, June 17, 1997.’’

‘‘Letter to Dana F. Arnold, U.S.

Environmental Protection Agency, from

National Paint & Coatings Association,

July 28, 1997.’’

‘‘Telephone Notes, Testing of

Reprocessed/consolidated Latex Paint,

Between Dana Arnold, U.S.

Environmental Protection Agency and

Sue Drozdz, Army Corps of Engineers,

May 19, 1997.’’

‘‘National Association of State

Purchasing Officials, 1996–1997

Membership Roster.’’

Follow these instructions to access

the information electronically:

WWW: http://www.epa.gov/epaoswer/

non-hw/index.htm#procure.

FTP: ftp.epa/gov

Login: anonymous

Password: your Internet address

Files are located in /pub/epaoswer.

IX. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

List of Subjects in 40 CFR Part 247

Environmental protection,

Channelizers, Consolidated latex paint,

Construction products, Delineators,

Flexible delineators, Garden hose,

Garden edging, Government

procurement, Laminated paperboard,

Landscaping products, Latex paint,

Lawn edging, Office products, Pallets,

Park and recreation products, Parking

stops, Plastic fencing, Printer ribbons,

Procurement guidelines, Recycling,

Reprocessed latex paint, Restroom

dividers/partitions, Shower dividers/

partitions, Soaker hose, Structural

fiberboard, Temporary traffic control

devices, Transportation products.

Dated: October 8, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40 , chapter I 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

continues to read as follows:

Authority: 24 U.S.C. 6912(a) and 6962;

E.O. 12873, 58 FR 54911.

2. In § 247.2, paragraph (d) is added

to read as follows:

§ 247.2 Applicability.

* * * * *

(d) RCRA section 6002(c)(1) requires

procuring agencies to procure

designated items composed of the

highest percentage of recovered

materials practicable, consistent with

maintaining a satisfactory level of

competition, considering such

guidelines. Procuring agencies may

decide not to procure such items if they

are not reasonably available in a

reasonable period of time; fail to meet

reasonable performance standards; or

are only available at an unreasonable

price.

3. In § 247.3, the following definitions

are added alphabetically:

§247.3 Definitions.

* * * * *

Channelizers means highly visible

barrels or drums that can be positioned

to direct traffic through detours;

Delineator means a highly visible

pavement marker that can be positioned

to direct traffic or define boundaries;

* * * * *

Flexible delineator means a highly

visible marker that can be positioned to

direct traffic or define boundaries and

that will flex if struck by a vehicle to

prevent damage to the vehicle or the

delineator;

* * * * *

Garden hose means a flexible tubing

that conducts water to a specific

location;

* * * * *

Latex paint means a water-based

decorative or protective covering having

a latex binder;

Lawn edging means a barrier used

between lawns and landscaped areas or

garden beds to prevent grass roots or

weeds from spreading to the landscaped

areas;

* * * * *

Pallet means a portable platform for

storing or moving cargo or freight;

* * * * *

Parking stop means a barrier used to

mark parking spaces and keep parked

vehicles from rolling beyond a

designated parking area;

* * * * *

Plastic fencing means a barrier with

an open-weave pattern that can be used

to control drifting snow or sand by

restricting the force of wind and to

provide a warning or barrier in

construction and other areas;

* * * * *

Printer ribbon means a nylon fabric

designed to hold ink and used in dot

matrix and other types of impact

printers;

* * * * *

Restroom divider/partition means a

barrier used to provide privacy in public

restroom facilities;

* * * * *

Shower divider/partition means a

water-proof barrier used to provide

privacy in public shower facilities;

Soaker hose means a perforated

flexible tubing that is used to deliver

gentle irrigation to plants;

* * * * *

4. Section 247.12 is amended by

adding new paragraphs (f) and (g) to

read as follows:
60974 Federal Register / Vol. 62, No. 219 / Thursday, November 13, 1997 / Rules and Regulations

§ 247.12 Construction products.

* * * * *

(f) Shower and restroom dividers/

partitions containing recovered plastic

or steel.

(g)(1) Consolidated latex paint used

for covering graffiti; and

(2) Reprocessed latex paint used for

interior and exterior architectural

applications such as wallboard, ceilings,

and trim; gutter boards; and concrete,

stucco, masonry, wood, and metal

surfaces.

5. Section 247.13 is amended by

redesignating the existing text as

paragraph (a) and by adding new

paragraphs (b), (c), (d), and (e) to read

as follows:

§ 247.13 Transportation products.

* * * * *

(b) Parking stops made from concrete

or containing recovered plastic or

rubber.

(c) Channelizers containing recovered

plastic or rubber.

(d) Delineators containing recovered

plastic, rubber, or steel.

(e) Flexible delineators containing

recovered plastic.

6. Section 247.14 is amended by

redesignating the existing text as

paragraph (a) and by adding a new

paragraph (b) to read as follows:

§ 247.14 Park and recreation products.

* * * * *

(b) Plastic fencing containing

recovered plastic for use in controlling

snow or sand drifting and as a warning/

safety barrier in construction or other

applications.

7. In § 247.15, new paragraphs (c) and

(d) are added to read as follows:

§ 247.15 Landscaping products.

* * * * *

(c) Garden and soaker hoses

containing recovered plastic or rubber.

(d) Lawn and garden edging

containing recovered plastic or rubber.

8. In § 247.16, new paragraphs (f) and

(g) are added to read as follows:

§ 247.16 Non-paper office products.

* * * * *

(f) Printer ribbons.

(g) Plastic envelopes.

9. Section 247.17 is revised to read as

follows:

§ 247.17 Miscellaneous products.

(a) Pallets containing recovered wood,

plastic, or paperboard.

(b) (Reserved)

[FR Doc. 97–29734 Filed 11–12–97; 8:45 am]

BILLING CODE 6560–50–P