21370 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 247

[FRL–5198–7]

RIN 2050–AE16

Comprehensive Guideline for

Procurement of Products Containing

Recovered Materials

AGENCY: Environmental Protection

Agency.

ACTION: Final rule.

SUMMARY: Today, the Environmental

Protection Agency (EPA) is

promulgating a final regulation

designating the following 19 items that

are or can be made with recovered

materials: Engine coolants, structural

fiberboard, laminated paperboard,

carpet, floor tile, patio blocks, cement

and concrete containing ground

granulated blast furnace slag, traffic

cones, traffic barricades, playground

surfaces, running tracks, hydraulic

mulch, yard trimmings compost, office

recycling containers, office waste

receptacles, plastic desktop accessories,

toner cartridges, binders, and plastic

trash bags. The CPG also consolidates

the designations from EPA’s five earlier

procurement guidelines, which were

previously codified at 40 CFR parts 248,

249, 250, 252, and 253. These five items,

in addition to the 19 new items

designated today, will be incorporated

into a new Comprehensive Procurement

Guideline codified at 40 CFR part 247.

This regulation is issued under the

authority of section 6002(e) of the

Resource Conservation and Recovery

Act (RCRA). This action will promote

recycling by using government

purchasing to expand markets for

recovered materials. RCRA section 6002

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 section 6002

requires that any procuring agency,

when using appropriated Federal funds

to procure that item, shall purchase it

with the highest percentage of recovered

materials practicable.

Executive Order 12873 sets forth

procedures for EPA to follow in

implementing RCRA section 6002(e).

Specifically, it calls for EPA to designate

section 6002 items in a Comprehensive

Procurement Guideline (CPG) and to

provide recommended procurement

practices in a related Recovered

Materials Advisory Notice (RMAN).

For the items designated in today’s

rule, EPA is issuing a Recovered

Materials Advisory Notice (RMAN),

which is published in the notice section

of today’s Federal Register. This RMAN

includes EPA’s consolidated

recommendations to procuring agencies

for meeting their section 6002

obligations with respect to the new and

existing designated items. In the case of

most designated items, the RMAN

contains recommended minimum

recovered materials content levels. For

other items, an alternative approach is

recommended. In addition, the RMAN

revises the recommended recovered

materials content levels originally

contained in the building insulation

guideline issued in 1988. The purpose

of the recommendations contained in

the RMAN is to assist procuring

agencies in fulfilling their obligations

under RCRA section 6002 and Executive

Order 12873 to purchase designated

items composed of the highest

percentages of recovered materials

practicable.

EFFECTIVE DATE: The Comprehensive

Procurement Guideline is effective on

May 1, 1996.

ADDRESSES: The public record for this

rulemaking (Docket Number F–95–

PRMF–FFFFF) is located at the

following address: U.S. Environmental

Protection Agency, RCRA Information

Center (RIC), Room M2616, 401 M Street

SW., Washington, DC 20460.

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

Monday through Friday, except for

Federal holidays. To review docket

materials, the public must make an

appointment by calling (202) 260–9327.

Materials may be copied for $0.15 per

page.

FOR FURTHER INFORMATION CONTACT:

‘‘Comprehensive Procurement

Guideline—Supporting Analyses’’ is the

primary supporting document for the

final Comprehensive Procurement

Guideline. Today’s Federal Register

notice and the supporting document

will be available in electronic format on

the Internet System through the EPA

Public Access Server at gopher.epa.gov.

For a paper copy of the Federal Register

notice or ‘‘Comprehensive Procurement

Guideline—Supporting Analyses,’’

please contact the RCRA Hotline at 800–

424–9346, or, in the Washington, DC

metropolitan area, (703) 412–9810.

Paper copies also are available in the

RCRA Docket at the address listed in the

previous section.

For general information, contact the

RCRA Hotline. For technical

information on individual item

designations, contact the following EPA

staff: Yard trimmings compost, Plastic

pipe and fittings, Geotextiles, Carpet,

Floor tile and Patio blocks, Playground

surfaces and Running tracks, Temporary

traffic control devices—Terry Grist,

(703) 308–7257; Engine coolant—Tracy

Bone, (703) 308–7259; Cement and

concrete containing ground granulated

blast furnace slag and Hydraulic

mulch—Dana Arnold, (703) 308–7279;

Structural fiberboard and Laminated

paperboard, Office recycling containers

and Office waste receptacles, Plastic

desktop accessories, Toner cartridges,

Binders, and Plastic trash bags—Beverly

Goldblatt, (703) 308–7278. For all other

technical information, contact Beverly

Goldblatt at (703) 308–7278, or Terry

Grist at (703) 308–7257.

Accessing Internet

1. Through Gopher: Go to:

gopher.epa.gov

From the main menu, choose ‘‘EPA

Offices and Regions’’. Next, choose

‘‘Office of Solid Waste and Emergency

Response (OSWER)’’. Next, choose

‘‘Office of Solid Waste’’. Then, choose

‘‘Non-Hazardous Waste—RCRA Subtitle

D’’. Finally, choose ‘‘Procurement/

CPG’’.

2. Through FTP: Go to: ftp.epa.gov

Login: anonymous

Password: Your Internet Address

Files are located in directories/pub/

gopher. All OSW files are in directories

beginning with ‘‘OSW’’.

3. Through MOSAIC: Go to: http://

www.epa.gov

Choose the EPA Public Access

Gopher. From the main (Gopher) menu,

choose ‘‘EPA Offices and Regions’’.

Next, choose ‘‘Office of Solid Waste and

Emergency Response (OSWER).’’ Next,

choose ‘‘Office of Solid Waste’’. Then,

choose ‘‘Non-Hazardous Waste—RCRA

Subtitle D’’. Finally, choose

‘‘Procurement/CPG’’.

4. Through dial-up access:

Dial 919–558–0335. Choose EPA

Public Access Gopher. From the main

(Gopher) menu, choose ‘‘EPA Offices

and Regions’’. Next, choose ‘‘Office of

Solid Waste and Emergency Response

(OSWER)’’. Next, choose ‘‘Office of

Solid Waste’’. Then, choose ‘‘NonHazardous Waste—RCRA Subtitle D’’.

Finally, choose ‘‘Procurement/CPG’’.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority

II. Background

A. Purpose of the Procurement Guidelines

B. RCRA Section 6002

C. Executive Order 12873

D. Other Requirements and Policies
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21371

E. Existing Procurement Guidelines

F. Summary of Proposed Rule

III. Comment Summary and Agency’s

Response

A. General Comments

1. Designation of Material Specific Items

2. Purpose, Scope, and Applicability

3. Definitions

4. Affirmative Procurement Program

B. Items Proposed for Designation

1. Engine Coolants

2. Plastic Pipe and Fittings

3. Geotextiles

4. Cement and Concrete Containing

Ground Granulated Blast Furnace Slag

5. Carpet

6. Floor Tiles

7. Yard Trimmings Compost

8. Office Recycling Containers and Waste

Receptacles

9. Toner Cartridges

10. Binders

C. Other Items Considered for Designation

D. Public Participation in Future Updates to

the CPG

IV. Availability of Designated Items

V. Economic Impact Analysis

A. Requirements of Executive Order 12866

B. Unfunded Mandates Reform Act of 1995

and Consultation with State, Local, and

Tribal Governments

C. Summary of Benefits

D. Summary of Costs

E. Product Cost

F. Regulatory Flexibility Analysis

VI. Supporting Information

Appendix I

I. Authority

This 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, as amended,

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

502 of Executive Order 12873 (58 FR

54911; October 22, 1993).

II. Background

RCRA section 6002 and Executive

Order 12873 set forth requirements for

the procurement of products containing

recovered materials and the issuance of

procurement guidelines. The

requirements of RCRA section 6002

apply to ‘‘procuring agencies,’’ as

defined in RCRA section 1004;

Executive Order requirements apply

only to Federal ‘‘Executive agencies,’’ as

defined in section 202 of Executive

Order 12873. Under RCRA section

1004(17), a ‘‘procuring agency’’ means

any ‘‘Federal agency, or any State

agency or agency of a political

subdivision of a State which is using

appropriated Federal funds for such

procurement, or any person contracting

with any such agency with respect to

work performed under such contract.’’

A. Purpose of the Procurement

Guidelines

In RCRA, Congress acknowledged the

importance of recycling in helping to

manage the nation’s solid waste and

recognized that recycling is not merely

the collection of materials, but includes

the manufacture of products with these

materials and the purchase of recycled

content products by consumers. RCRA

section 6002 established the

government’s buy-recycled program,

which uses Federal purchasing power to

stimulate the demand for products made

with recovered materials. The statute

does this by requiring EPA to issue

guidelines to be used by government

when procuring recycled products. The

guidelines are used not only by Federal

agencies but also by state and local

agencies and their contractors. Many

state and local agencies have urged EPA

to designate additional items to increase

markets for recovered materials.

President Clinton’s Executive Order

12873 further bolsters the Federal

government’s commitment to buy

products containing recovered materials

by ‘‘streamlining’’ the process used by

EPA in fulfilling its obligation under

RCRA section 6002 to designate items

that are or can be made with recovered

materials.

Executive Order 12873 recognizes that

the nation’s interest is served when the

Federal government makes more

efficient use of natural resources by

maximizing recycling and preventing

waste wherever possible. The E.O. also

recognizes that the Federal government

should—through cost-effective waste

prevention and recycling activities—

work to conserve disposal capacity, and

serve as a model in this regard for

private and other public institutions.

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. Use of recovered

materials may reduce the generation and

release of air and water pollutants often

associated with manufacturing

(including air emissions that contribute

to the level of ‘‘greenhouse gases’’ and

ozone depletion). Using recovered

materials also reduces the

environmental impacts of mining,

harvesting, and other extraction of

natural resources, while conserving

non-renewable resources for future use.

Recycling can also divert large amounts

of materials from landfills. This reduces

the need to expand existing or site new

disposal facilities, allowing local

officials to devote more attention to

health, education, and safety issues.

Executive Order 12873 also points out

that the use of recycled content

products by the Federal government can

spur private sector development of new

technologies and use of such products,

thereby 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

make American industry more

competitive in the global economy.

Both RCRA and the E.O. recognize the

interdependence between buying

recycled content products and the

success of recycling. For recycling to

occur, industry must use recovered

materials as feedstock for the

manufacture of new products. Despite

the environmental and economic

efficiencies that can be realized by using

recovered materials as feedstock, a

manufacturer’s primary responsibility

remains to produce items that meet the

demands of the consumer. The Federal

government, through its purchasing

decisions as a consumer, can play a key

role in influencing manufacturers’

decisions on products made with

recovered materials. By purchasing

products containing recovered materials

pursuant to the guidelines established

under RCRA and Executive Order

12873, the Federal government and

other procuring agencies have the

opportunity to increase markets for

recovered materials and to contribute to

an increased level of recycling in this

country.

EPA also strongly encourages the

private sector to use these guidelines

when making purchasing decisions.

Private sector purchases of most

designated items far exceed government

purchases. By seeking products made

with recovered materials, the private

sector can further stimulate markets for

recovered materials, reduce the

generation of air and water pollutants

associated with virgin material

extraction and beneficiation, and, in

some instances, contribute to reductions

in our nation’s energy usage.

B. RCRA Section 6002

RCRA section 6002 requires EPA to

designate items that are or can be made

with recovered materials and to

recommend practices to assist procuring

agencies in purchasing the designated

items. Once an item is designated by

EPA, procuring agencies are required to

purchase it composed of the highest

percentage of recovered materials

practicable (and in the case of paper, the

highest percentage of postconsumer

recovered materials), taking into

consideration the limitations set forth in
21372 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

section 6002(c)(1) (A) through (C) (i.e.,

competition, price, availability, and

performance). The requirement applies

when the purchase price of the item

exceeds $10,000 or when the total cost

of such items, or of functionally

equivalent items, purchased during the

preceding fiscal year was $10,000 or

more.

Within one year after EPA designates

an item, RCRA section 6002(d)(2)

requires that Federal agencies revise

their specifications to require the use of

recovered materials to the maximum

extent possible without jeopardizing the

intended end-use of the item. Section

6002(d)(1) further requires Federal

agencies responsible for drafting or

reviewing specifications to review all of

their product specifications to eliminate

both provisions prohibiting the use of

recovered materials and requirements

specifying the exclusive use of virgin

materials. This revision process should

have been completed by May 8, 1986.

Once EPA designates an item,

responsibility for complying with RCRA

section 6002 rests with the procuring

agencies. As noted, after the date

specified in the designation, each

procuring agency must procure

designated items with the highest

recovered materials content practicable.

After the effective date, contracting

officers must require their vendors to

certify that the recovered materials

content of their product meets the

required content level. Furthermore, for

each item designated by EPA, RCRA

section 6002(i) requires each procuring

agency to develop an affirmative

procurement program, which sets forth

the agency’s policies and procedures for

implementing the requirements of

RCRA section 6002. The program must

assure that the agency purchases items

composed of recovered materials to the

maximum extent practicable and that

these purchases are made consistent

with applicable provisions of Federal

procurement law. In accordance with

RCRA section 6002(i), the affirmative

procurement program must contain at

least four elements:

(1) A recovered materials preference

program;

(2) An agency promotion program;

(3) A program for requiring vendors to

reasonably estimate, certify, and

verify the recovered materials content

of their products; and

(4) A program to monitor and annually

review the effectiveness of the

affirmative procurement program.

C. Executive Order 12873

Executive Order 12873, entitled

‘‘Federal Acquisition, Recycling, and

Waste Prevention,’’ was signed by

President Clinton on October 20, 1993.

The Order establishes a new, two-part

process for EPA to use when developing

and issuing the procurement guidelines

for products containing recovered

materials. The first part, the

Comprehensive Procurement Guideline,

contains EPA’s designations of items

that are or can be made with recovered

materials. Because this is an activity

requiring rulemaking, the CPG was

developed using formal notice-andcomment rulemaking procedures and

will be codified in the Code of Federal

Regulations. Today’s final CPG was

developed under the procedures

established in the Executive Order.

The second part, the Recovered

Materials Advisory Notice, provides

recommendations to procuring agencies

on purchasing the items designated in

the CPG. The Executive Order directs

EPA to publish the RMAN in the

Federal Register for public comment.

The RMAN for items designated in

today’s CPG appears in the notice

section of today’s Federal Register.

A detailed description of the

Executive Order provisions was

included in the preamble to the

proposed CPG (59 FR 18858; April 20,

1994).

D. Other Requirements and Policies

There are several other policies and

procedures that may affect the

procurement of products containing

recovered materials by Federal and

other government agencies. For the

convenience of the reader, in Appendix

I of this preamble, EPA has briefly

summarized requirements and policies

set forth in the Federal Acquisition

Regulation, OFPP Policy Letter 92–4,

and OMB Circulars A–102, A–119, and

A–131.

E. Existing Procurement Guidelines

Between 1983 and 1989, EPA issued

five guidelines for the procurement of

products containing recovered

materials. The guidelines issued prior to

today’s effort are listed in the following

table:

TABLE 1.—EPA GUIDELINES FOR PROCUREMENT OF PRODUCTS CONTAINING RECOVERED MATERIALS

Guideline 40 CFR

Part

Date

(FR)

Cement and

Concrete

Containing Fly

Ash.

249 January 28,

1983 (48 FR

4230).

Paper and

Paper Products.

250 June 22, 1988

(53 FR

23546).

TABLE 1.—EPA GUIDELINES FOR PROCUREMENT OF PRODUCTS CONTAINING RECOVERED MATERIALS—Continued

Guideline 40 CFR

Part

Date

(FR)

Re-Refined Lubricating Oils.252 June 30, 1988

(53 FR

24699).

Retread Tires ... 253 November 17,

1988 (53 FR

46558).

Building Insulation.248 February 17,

1989 (54 FR

7327).

F. Summary of Proposed Rule

On April 20, 1994, EPA proposed a

Comprehensive Procurement Guideline

that, when finalized, would designate

21 items that are or can be made with

recovered materials. The items were

arranged into product categories as

shown below:

Vehicular Products

Reclaimed engine coolants

Construction Products

Structural fiberboard

Laminated paperboard

Plastic pipe and fittings

Geotextiles

Cement/concrete containing ground

granulated blast furnace slag

Carpet

Floor tiles

Patio blocks

Transportation Products

Traffic barricades

Traffic cones

Park and Recreation Products

Playground Surfaces

Running Tracks

Landscaping Products

Hydraulic Mulch

Yard Trimmings Compost

Non-Paper Office Products

Office recycling containers

Office waste receptacles

Plastic desktop accessories

Remanufactured toner cartridges

Binders

Plastic Trash Bags

In addition to proposing to designate

the 21 new items, EPA (1) identified

items for potential future designation,

depending on the receipt of additional

information; (2) identified items deemed

not appropriate for designation at this

time; (3) announced the Agency’s

intention to establish a process for the

public to suggest items that could be

added to future updates to the CPG; and

(4) requested comment on how EPA

might be able to increase public
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21373

participation in developing future

updates to the CPG.

EPA also proposed to delete the

outdated guidance in 40 CFR part 247,

which pre-dated the 1984 amendments

to the Resource Conservation and

Recovery Act and to consolidate the

existing five procurement guidelines

and new item designations into a new

part 247. The proposed new part 247

consisted of two subparts: Subpart A—

General, which included the general

requirements of RCRA section 6002 and

definitions, and Subpart B—Item

Designations (see 59 FR 18862, April 20,

1994). As explained in the preamble to

the proposed CPG, EPA did not seek

comment on the existing item

designations for paper and paper

products, re-refined lubricating oil,

building insulation, cement and

concrete containing fly ash, or retread

tires.

The legal basis, methodology, and

factual conclusions that formed the

basis of the proposal were described in

substantial detail in the notice of

proposed rulemaking (see 59 FR 18853–

18882).

Interested persons were invited to

participate in the rulemaking by

submitting written comments by June

20, 1994.

III. Comment Summary and Agency’s

Response

EPA received submittals from over

300 commenters in response to the

proposed CPG. These commenters

represented various interests, including

Federal agencies, State agencies, local

governments, product manufacturers,

product users, public interest groups,

waste management companies, and

members of Congress. EPA has carefully

considered all of these comments. A

discussion of the major comments

follows.

A. General Comments

1. Designation of Material Specific Items

Comment: One commenter suggested

that EPA designate items in a material

neutral manner. In other words, rather

than designating items made of specific

materials (e.g., ‘‘plastic’’ trash bags),

EPA should simply designate the items

in generic terms (e.g., trash bags).

Response: EPA believes that such an

approach is not appropriate for all

items. Under RCRA section 6002(c)(1),

each procuring agency which procures

‘‘any items’’ designated by EPA is

required to procure such items

composed of the highest percentage of

recovered materials practicable. As a

result, if EPA designates a generic

category of items, procuring agencies are

obligated to try to purchase all items

within that category containing

recovered materials. For example, when

EPA designated ‘‘paper and paper

products’’ or ‘‘building insulation

products,’’ procuring agencies were

obligated to purchase all types of paper

products or building insulation

containing recovered materials, even

though EPA did not provide content

recommendations for all products

within these categories. In other

instances, where EPA is not aware that

items manufactured from other types of

materials are made with or could

contain recovered materials, EPA has

limited its designations so as not to

create an unnecessary burden on

agencies to try to purchase an item that

is not available. When EPA learns that

the generic item is being made with

additional recovered materials, EPA will

evaluate the new information and

consider amending the item designation

accordingly.

In implementing this process for the

items listed in the proposed CPG, 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): ‘‘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 * * *’’

2. Purpose, Scope, and Applicability

Comment: A commenter inquired

about the applicability of RCRA section

6002 to designated items that are leased

rather than purchased by a procuring

agency.

Response: Section 6002 applies to

‘‘any purchase or acquisition’’ in excess

of $10,000 by a procuring agency. The

Federal Acquisition Regulation (FAR)

defines ‘‘acquisition’’ to include the

acquiring of supplies or services

(including construction) by means of a

lease (48 CFR 2.101). Therefore, RCRA

section 6002 and the procurement

guidelines developed under its

authority apply to a procuring agency’s

lease contracts for designated items.

Under the definition of ‘‘procuring

agency,’’ lessor contractors are subject to

the section 6002 requirements for work

performed under the lease contract.

Comment: Commenters inquired

when RCRA section 6002 applies to

contractors.

Response: The requirements of RCRA

section 6002 apply to contractors in the

following circumstances. A contractor

must comply with section 6002 with

respect to work under the contract if the

contractor is (1) contracting with a

Federal agency or a State agency which

is using appropriated Federal funds for

a procurement and (2) purchasing or

acquiring a designated item whose

purchase price exceeds $10,000 or the

quantity of the item purchased in the

previous year was $10,000 or more.

Under both circumstances, it is

immaterial for purposes of the $10,000

threshold whether the contractor

purchased or acquired the designated

items as a ‘‘procuring agency’’ (with

respect to work performed under a

contract with a Federal or State agency)

or in its private capacity. All the

purchases of a designated item should

be aggregated in order to determine

whether the $10,000 threshold for

section 6002 applicability is met.

However, the obligations of section 6002

are prospective. The contractor must

determine whether the $10,000

threshold is met only after it is a

‘‘procuring agency.’’ That is, purchases

exceeding the $10,000 threshold in the

year prior to the year in which a

contractor becomes a ‘‘procuring

agency’’ do not trigger section 6002(a)

requirements. Furthermore, while the

contractor is subject to section 6002

requirements once it exceeds the

threshold, the RCRA requirements apply

only with respect to work performed

under the contract (i.e, when supplying

the designated item to any State or

Federal agency).
21374 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

For example, in Year One, Contractor

X contracts to supply $500 of hydraulic

mulch to a State agency using

appropriated Federal funds to purchase

the hydraulic mulch. Therefore, in Year

One, Contractor X is a ‘‘procuring

agency.’’ During Year One, Contractor X

also purchases hydraulic mulch for its

own use and to supply the requirements

of its other customers, with total

purchases of hydraulic mulch exceeding

$10,000. In Year One, while Contractor

X is a procuring agency, Contractor X is

not subject to the section 6002

requirements for hydraulic mulch

supplied to the State agency because the

contract price does not exceed $10,000.

In Year Two, Contractor X is subject to

section 6002 requirements for hydraulic

mulch provided to the State agency for

the procurement regardless of the

amount of the contracted purchase,

because, while a ‘‘procuring agency’’ in

Year One, it purchased in excess of

$10,000 of hydraulic mulch.

In another example, in Year One,

Contractor Y purchases $10,000 of

hydraulic mulch but none was

purchased on behalf of a government

agency using appropriated Federal

funds. In Year One, Contractor Y is not

a procuring agency. In Year Two,

Contractor Y contracts to supply less

than $10,000 of hydraulic mulch to a

State agency using appropriated Federal

funds for the purchase. In Year Two,

Contractor Y is a procuring agency, but

is not subject to section 6002

requirements for its purchases of

hydraulic mulch because it was not a

procuring agency during the previous

year when it acquired in excess of

$10,000 of hydraulic mulch.

3. Definitions

In the proposed CPG, EPA explained

that the definitions found in the five

existing guidelines would be

incorporated into a new part 247 (59 FR

18863, April 20, 1994). The new part

247 would include the relevant

definitions found in RCRA, the

definitions of items, and definitions of

terms used in the companion RMAN.

EPA has concluded that it will be easier

for procuring agencies to use the

definitions if they are limited to those

terms used in the CPG. Therefore, in the

final CPG, the definitions section

contains only terms used in the CPG.

4. Affirmative Procurement Program

Comment: Several commenters

expressed concern with the

administrative requirements associated

with individual item designations. In

particular, many commenters objected

to the requirement that procuring

agencies develop affirmative

procurement programs for all designated

items, including items that they may not

purchase or that they are unable to

obtain with recovered materials content.

Response: In the proposed CPG (59 FR

18864, April 20, 1994), EPA

recommended that procuring agencies

develop one comprehensive affirmative

procurement program with a structure

that provides for the integration of new

items as they are designated. EPA

believes that developing a single

affirmative procurement program will

substantially reduce procuring agencies’

administrative burdens under RCRA

that result from today’s item

designations.

EPA also recommends that if a

procuring agency does not purchase a

specific designated item, it should

simply include a statement in its

preference program to that effect.

Similarly, if a procuring agency is

unable to obtain a particular item for

one or more of the reasons cited in

RCRA section 6002(c)(1), a similar

statement should be included in the

preference program along with the

appropriate justification.

For example, if a state agency

procures cement and concrete using

appropriated Federal funds and has

determined that ground granulated blast

furnace slag is not available in the state

due to high transportation costs, then

that state agency would include the

following or similar statement in its

preference program:

The State currently is unable to use ground

granulated blast furnace slag in cement and

concrete products due to the high

transportation costs of this material.

Therefore, this State has concluded that,

based on RCRA section 6002(c)(1)(C), it is not

required to procure this material.

EPA notes that, in accordance with

RCRA section 6002(i)(2)(D), it is the

procuring agency’s responsibility to

monitor and regularly update its

affirmative procurement program.

Should an item that was previously

unobtainable become available, then the

procuring agency should modify its

affirmative procurement program

accordingly.

B. Items Proposed for Designation

No commenters opposed the

designations of the following items:

Structural fiberboard, laminated

paperboard, patio blocks, traffic

barricades, traffic cones, playground

surfaces, running tracks, hydraulic

mulch, plastic desktop accessories, and

plastic trash bags. Therefore, today, EPA

is promulgating these item designations

as proposed. The following subsections

discuss the significant comments

pertaining to the remaining proposed

item designations.

1. Engine Coolants

Comment: Two commenters asked

that EPA clarify that the proposed

designation applies only to engine

coolants used in vehicles and not to

other glycol-based coolants used in

other types of machinery such as

generator motors.

Response: EPA believed that

inclusion of engine coolants in the

Vehicular Products Category clarifies

that the designation is limited to

vehicular engine coolants and does not

apply to other non-vehicular coolants.

However, to remove any ambiguity, EPA

is revising the engine coolant

designation to specify that it applies to

vehicles only.

Comment: Two commenters urged

EPA to limit the designation to

ethylene-glycol based engine coolants

and exclude other types of engine

coolants. These two commenters stated

that propylene glycol is not currently

being reclaimed and that, therefore,

propylene glycol-based engine coolants

do not meet the statutory requirements

for designation. Furthermore, one

commenter noted that U.S. automobile

manufacturers ‘‘currently disallow the

use of propylene glycol engine coolants

in their products. Products which are

not ethylene glycol-based fail to meet

the appropriate chemical properties

requirement and are therefore not

qualified for use in American

Automobile Manufacturers Association

members’ vehicles.’’

Response: EPA believes that

propylene glycol-based engine coolants

are not currently being recovered and

processed into reclaimed engine

coolants. However, EPA is unaware of

any technical reason that would prevent

this from occurring. RCRA directs EPA

to ‘‘designate those items which are or

can be produced with recovered

materials and whose procurement by

procuring agencies will carry out the

objectives of this section (Section 6002

of RCRA).’’ Rather than precluding

procuring agencies from purchasing

propylene glycol-based engine coolants

and reclaiming them, EPA concludes

that it is inappropriate to limit the item

designation to ethylene glycol-based

engine coolants only. If propylene

glycol-based engine coolants do not

meet a procuring agency’s performance

requirements, the agency need not

purchase them. Thus, EPA has decided

to finalize the engine coolants

designation as proposed.
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21375

1 ‘‘Report to Congress on Special Wastes from

Mineral Processing,’’ Volume II: Methods and

Analyses, U.S. Environmental Protection Agency,

Office of Solid Waste, July 1990, Chapter 8.

2. Plastic Pipe and Fittings

Comment: While one commenter

supported the proposed designation of

plastic pipe and fittings, EPA received

numerous comments expressing

concern about the possible liability and

adverse effects were there to be failures

of plastic pipe containing recovered

materials. These commenters stated that

the American Society for Testing and

Materials (ASTM) and American

Association of State Highway and

Transportation Officials (AASHTO) are

currently reviewing their material

specifications that preclude the use of

recovered materials in plastic pipe and

fittings for possible revision to allow the

use of these materials. These

commenters suggested that ASTM and

other reliable specifications are

necessary to ensure the quality of plastic

pipe containing recovered materials,

and that EPA should not designate

plastic pipe containing recovered

materials until such specifications are in

place.

Response: As described in the

proposed CPG, several manufacturers

have conducted performance testing on

pipe made with recovered materials and

demonstrated that the pipe meets

applicable ASTM performance

specifications. However, there currently

exist ASTM and other material

specifications that preclude the use of

recovered materials in plastic pipe and

fittings. As pointed out by commenters,

there is a major effort underway to

review these specifications for possible

revision to allow the use of recovered

materials. This effort is not yet

completed. Based on the comments

received, EPA has become aware that

many manufacturers and users of plastic

pipe do not believe that adequate

testing, especially field testing, has been

conducted and that designation should

be delayed until such testing is

conducted. For this reason, EPA has

determined that it is premature to

designate plastic pipe and fittings, even

for non-pressure applications.

Many commenters in industry and

government, particularly state

transportation officials, expressed a

strong interest in working with EPA to

overcome the barriers to using plastic

pipe made of recovered materials. At

least one state transportation office

currently is conducting field testing of

HDPE drain pipe made of recovered

materials. EPA will continue to follow

developments in this area and will

reconsider designating plastic pipe

when these barriers have been

overcome. In the meantime, EPA

encourages manufacturers and users of

plastic pipe made with recovered

materials to keep the Agency apprised

of new developments in product

performance testing and revision of

material specifications.

3. Geotextiles

Comment: Although many

commenters supported the proposed

designation of geotextiles, the majority

of commenters opposed it. Those in

support of the designation stated that

there are non-woven geotextiles

available made with postconsumer

recovered polyethylene terephthalate

(PET) and they are being used in a

variety of applications. These

commenters also stated that adequate

performance testing has been conducted

to justify the designation of geotextiles

made with recovered materials.

Commenters opposed to the proposed

designation of geotextiles expressed

concern that using recovered resins in

geotextiles could result in catastrophic

failures if used in critical applications,

such as in landfills or in road

construction. These commenters stated

that evidence does not exist on the longterm performance of geotextiles made

with recovered resin or on the chemical

compatibility of geotextiles containing

recovered materials when used in

landfill applications. Additional

commenters claimed that no

manufacturers actually make geotextiles

with postconsumer polypropylene, that

the technology does not exist to make

geotextiles with recovered

polypropylene, and that high-quality

postconsumer polypropylene is not

available in sufficient quantities for use

in making geotextiles.

Response: EPA has not yet been able

to resolve the numerous technical issues

raised during the comment period. To

do so would have meant a delay in

issuance of the final CPG and a delay in

the date on which procuring agencies

would be required to begin purchasing

the 19 additional items that are being

designated at this time. Thus, EPA

determined that it would be best to

issue the CPG for those items on which

the Agency is ready to proceed and to

defer a final decision on the designation

of geotextiles until a future update of

the CPG.

EPA will continue to track

developments in this area, evaluate the

issues raised by commenters, and

maintain a dialog with manufacturers

and users of geotextiles. EPA encourages

manufacturers of geotextiles made with

recovered materials to keep the Agency

apprised of new products being

manufactured with recovered materials,

the availability of recovered

polypropylene, and developments in

product performance testing.

4. Cement and Concrete Containing

Ground Granulated Blast Furnace Slag

Comment: Several commenters

opposed the designation of ground

granulated blast furnace (GGBF) slag

because of its lack of availability.

Response: EPA has concluded that

availability is not a barrier to

designating GGBF slag. Data provided in

comments by GGBF slag producers

indicate that granulators currently are

located at four steel plants, an

additional five steel companies are

considering the installation of

granulation capacity at locations in six

states, ten cement manufacturers in nine

states currently grind granulated blast

furnace slag, and excess capacity is

available to supply granulated blast

furnace slag to additional customers.

Additionally, EPA’s Report to Congress

on special wastes from mineral

processing 1 indicates that most U.S.

primary iron producers are expected to

modernize their blast furnaces and

install slag granulation facilities,

resulting in greater availability of

granulated blast furnace slag for use in

cement and concrete.

While GGBF slag currently is used

primarily in Eastern states and states

located just west of the Mississippi

River, the product also has been used in

states more remote from the nation’s

steel centers (e.g., Texas, Oklahoma, and

Colorado), indicating that this item can

be made available to states that are not

proximate to steel mills. In light of the

Agency’s past experience with the

positive effect of an item designation on

markets, EPA concludes that

designation of cement and concrete

containing GGBF slag will encourage

additional states to consider the use of

GGBF slag, thereby creating expanded

markets for this item.

If a procuring agency determines that

cement or concrete containing GGBF

slag is not available, it is not required

to purchase this item. Section 6002 of

RCRA provides that procuring agencies

need not purchase a designated item if

the item is not reasonably available

within a reasonable period of time or

the item is available only at an

unreasonable price. The procuring

agency must, however, take the

affirmative step of inquiring whether the

item is or can be made available.

Comment: The comments contained

both positive and negative information

about the performance of cement and

concrete containing GGBF slag. Several

states commented that they use GGBF
21376 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

slag in cement or concrete for its

positive attributes. A federal agency also

cited several positive attributes of this

material. The positive attribute most

often cited was GGBF slag-cement’s

contribution to a reduction in alkalisilica reactivity. It also adds

cementitious properties.

Commenters also cited negative

performance factors about the use of

GGBF slag, although conflicting

information was provided about almost

all of these factors. For example,

commenters noted that concrete

containing GGBF slag has a slower set

time than concrete without GGBF slag.

This fact could limit the time of year in

which the product is used. However,

considering that 70% of concrete is used

in warmer months, other commenters

stated that slower set time, in an of

itself, is not a barrier to using this

product in most projects.

Response: EPA’s detailed response to

each of these comments is contained in

‘‘Comprehensive Procurement

Guideline—Supporting Analyses.’’ In

many instances, the negative attributes

cited by commenters were cited as

positive attributes by others. For

example, slower setting times are often

advantageous, especially in warm

weather when 70 percent of concrete is

placed. With respect to other

performance criteria, other commenters

provided conflicting information. For

example, while some commenters cited

a problem with the workability of

concrete containing GGBF slag, a

Federal agency commented that GGBF

slag will generally improve the

workability of concrete. Based on a

review of the information submitted by

commenters, EPA agrees with one

commenter that GGBF slag is suitable

for some, but not all, concrete

applications and, therefore, should not

be blindly substituted for Portland

cement without regard for its effects on

the characteristics of the concrete mix.

For the following reasons, EPA

concludes that cement and concrete

containing GGBF slag should be

designated: (1) The use of GGBF slag in

cement and concrete can provide

beneficial properties to users of

concrete, such as reduced alkali-silica

reactions, (2) the use of GGBF slag in

cement and concrete can reduce the

quantities of this material requiring

disposal, and (3) cement and concrete

containing GGBF slag is used on a

widespread basis in several states.

Additionally, EPA believes that the

designation of this item will encourage

procuring agencies to learn more about

this product, which will, in turn,

increase the likelihood that they will

begin to purchase it where it is available

and meets their performance

requirements.

Under the exceptions in RCRA section

6002, in those instances where the use

of GGBF slag will not meet a procuring

agency’s reasonable performance

requirements, the agency is not required

to purchase the product.

Comment: Several state agencies

commented that coal fly ash is

generated and used in their state. They

stated that a designation of GGBF slag

could result in reduced markets for coal

fly ash because GGBF slag would

compete with coal fly ash.

Response: EPA’s designation of GGBF

slag does not require procuring agencies

to favor this item over coal fly ash.

Because it is an expansion of the

existing cement and concrete

designation, the GGBF slag designation

simply requires that procuring agencies

use cement and concrete containing

either coal fly ash or GGBF slag when

it meets their price and performance

objectives. Which type of cement or

concrete a procuring agency purchases

will depend on a number of factors,

including the performance requirements

for the construction project, product

availability, competition, and product

price.

5. Carpet

Comment: Several commenters were

concerned about the proposed

designation of polyester carpet, stating

that this item generally does not meet

the performance standards for

commercial applications. Commenters

stated that nylon carpeting is preferred

in commercial applications because of

the fiber’s superior performance

characteristics, while polyester

carpeting is mainly suited for low-wear

or residential applications. Another

commenter stated that nylon fibers can

be made in a loop pile construction,

whereas polyester fibers are typically

made in a cut-pile construction which is

prone to faster wear.

Response: EPA is aware that polyester

carpeting may not perform as well as

nylon carpeting in high-wear and

severe-wear applications. For this

reason, EPA proposed to designate

polyester carpet for low- and mediumwear applications only. The designation

of polyester carpet applies only in those

cases where procuring agencies have

determined that polyester carpet has

suitable performance characteristics to

meet the agencies’ particular

applications. Where it is determined

that polyester carpet is suitable,

procuring agencies should purchase

polyester carpet containing recovered

materials.

6. Floor Tiles

Comment: No commenters opposed

the proposed designation of floor tiles.

However, commenters explained that

floor tiles containing recovered

materials are not typically used in

certain applications, such as for

standard office flooring. Commenters

explained that their use has been

limited to certain heavy-duty

applications.

Response: EPA is not aware of any

floor tiles containing recovered

materials being used in standard office

flooring applications; consistent with

information submitted by commenters,

their use has been limited to heavyduty, commercial applications. For this

reason, EPA is limiting the

recommendations contained in the

Recovered Materials Advisory Notice

that accompanies today’s rule to rubber

and plastic floor tiles used in heavyduty, commercial applications. If other

uses, such as for standard office flooring

are identified in the future, EPA will

consider revising its recommendations

to incorporate these applications.

7. Yard Trimmings Compost

Comment: One commenter expressed

concern about the proposed designation

of yard trimmings compost because

there are a lack of national standards for

this item.

Response: The Agency does not

believe that a lack of national standards

will inhibit the general use of yard

trimmings compost, or that national

standards are a necessary prerequisite

for its designation. As noted in the

preamble to the proposed rule, compost

can have many different applications,

each of which may require compost

with differing characteristics. For

instance, using compost for turf

establishment would typically require a

mature, cured compost, while an

application for landfill cover might

utilize less mature compost. As

explained in EPA’s draft RMAN issued

concurrently with the proposed CPG,

the State of Maine has developed

quality standards for six different types

of compost ranging from topsoil (three

classes), to wetlands substrate, to mulch

(two classes) (see 59 FR 18906, April 20,

1994). These standards are being used

by many State agencies in purchasing

compost and can serve as a guide to

anyone purchasing this item.

In addition to the guidance afforded

by the State of Maine’s quality

standards, compost suppliers can assist

procuring agencies in determining the

type(s) of compost needed for particular

applications. The agency recommends,

therefore, that when purchasing yard
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21377

trimmings compost, the specific use of

the compost should be described to the

supplier to ensure the purchase of a

product compatible with the intended

use.

In the preamble to the proposed CPG,

EPA also noted that the Composting

Council, a diverse group of

professionals engaged in promoting the

beneficial use of compost, as well as a

number of State agencies are developing

standards and specifications for

compost (see 59 FR 18878, April 20,

1994). As these standards are

developed, EPA will make their

availability known to procuring

agencies by referencing them in a future

Recovered Materials Advisory Notice.

8. Office Recycling Containers and

Waste Receptacles

Comment: One commenter questioned

EPA’s proposed designation of steel

office recycling containers and office

waste receptacles, stating that the

amount of steel used to manufacture

such items is inconsequential when

compared to the amount of steel

produced in the U.S. Another

commenter stated that the designation

of recycling containers and waste

receptacles made from multiple

materials (i.e., plastic, steel, and paper)

could encourage the purchase of plastic

and paper containers rather than the

traditional steel containers.

Response: EPA encourages the use of

all recovered materials in products and

does not favor one material over

another. If EPA did not include steel

containers in its designation, procuring

agencies might assume that EPA was

recommending the use of plastic or

paper containers only, when this is not

the case. Additionally, steel containers

made from recovered materials are

readily available as are containers made

from plastic and paper. For these

reasons, the Agency believes it is

appropriate to designate containers

made from steel, paper, and plastic. EPA

also believes that the type of containers

purchased should be the sole decision

of the procuring agencies and that they

can best choose the product that meets

their needs.

9. Toner Cartridges

Comment: Two commenters contested

EPA’s designation of remanufactured

toner cartridges, citing RCRA section

6002(e)(1) and Executive Order 12873 as

requiring EPA to designate items made

with ‘‘recovered,’’ not

‘‘remanufactured’’ materials. The

commenters further stated that, should

EPA proceed with its designation of

remanufactured toner cartridges, it

should expand the designation to

include new toner cartridges made from

recovered materials as well.

Response: EPA believes that the

designation of remanufactured toner

cartridges is consistent with the

directives contained in RCRA section

6002 and Executive Order 12873. EPA

believes that the reuse of materials in

remanufacturing operations falls within

the statutory definition of ‘‘recovered

materials’’ in that these are materials

‘‘which have been recovered or diverted

from solid waste, but * * * not * * *

generated from, and commonly reused

within, an original manufacturing

process.’’ Additionally, in 1988, the

Agency designated retread tires as a

guideline item (53 FR 46558, November

17, 1988). Retread tires are also

remanufactured items.

EPA now has information that toner

cartridges made with recovered

materials are available for purchase.

Thus, EPA agrees with the commenters

that it is appropriate at this time to

designate toner cartridges made with

recovered materials as well as

remanufactured toner cartridges.

Therefore, the Agency has changed its

designation from ‘‘remanufactured toner

cartridges’’ to ‘‘toner cartridges’’ to

include new cartridges made with

recovered materials.

10. Binders

Comment: Two commenters stated

that EPA’s proposed item designation

for binders was incomplete because it

did not mention binders made from

pressboard.

Response: The commenters are

correct. EPA inadvertently omitted

reference to pressboard in the proposed

CPG under the erroneous assumption

that ‘‘pressboard’’ was included in the

term ‘‘chipboard.’’ EPA has since

determined that this is not the case. For

this reason, today’s final item

designation for binders references

chipboard and pressboard, both of

which are paper and paperboard

products. As explained in the final

Recovered Materials Advisory Notice

that accompanies this final CPG,

procuring agencies should rely on the

guidance provided in Section II, Part A

of the Recovered Materials Advisory

Notice that accompanies this final CPG

and in the draft Paper Products

Recovered Materials Advisory Notice

(60 FR 14182, March 15, 1995) when

purchasing chipboard or pressboard

binders.

C. Other Items Considered for

Designation

In addition to the items proposed for

designation, EPA listed and requested

information on 23 items as potential

items for future designation and 4 items

that the Agency believed were

inappropriate for designation at this

time (59 FR 18881, April 20, 1994).

EPA received comments on most of

the 23 items listed as potential items for

future designation. In addition, EPA

received comments on pallet stretch

wrap and strapping, which, at proposal,

were two of the items EPA believed to

be inappropriate to designate (59 FR

18812, April 20, 1994). Three

commenters provided information on

pallet stretch wrap and one on

strapping, indicating that these two

items may be suitable for designation.

The information provided in the

comments will be considered when the

Agency evaluates items for possible

designation in a future update of the

CPG.

D. Public Participation in Future

Updates to the CPG

In the proposed rule, the Agency

announced it would develop procedures

that would allow the public to suggest

items for inclusion in future updates of

the CPG and to provide information on

products made from recovered

materials. The proposal also solicited

public comment on possible options for

increasing public participation in

developing updates to the CPG and

RMAN. EPA did not receive any

comments relating to this issue.

EPA still intends to establish such a

process and will issue a future Federal

Register notice that describes this

process.

IV. Availability of Designated Items

EPA has developed lists of

manufacturers and vendors of the items

designated in today’s final CPG. These

lists will be updated periodically as new

sources are identified and EPA becomes

aware of changes in product availability.

To assist procuring agencies, the lists

will be made available at no charge by

calling EPA’s RCRA Hotline at (800)

424–9346, or, in the Washington, DC

area, at (703) 412–9810. They also will

be available for review in the RCRA

Information Center (RIC). For additional

details about the location and operating

schedule of the RIC, see the ‘‘Address’’

section at the beginning of this Federal

Register notice. Procuring agencies are

encouraged to contact manufacturers

and vendors directly to discuss their

specific needs and to obtain detailed

information on the availability and price

of recycled content products meeting

those needs.

The U.S. General Services

Administration (GSA) publishes an

‘‘Environmental Products Guide,’’

which lists items available through its
21378 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

Federal Supply Service. This Guide is

updated periodically as new items

become available. Copies of the GSA

‘‘Environmental Products Guide’’ can be

obtained by contacting GSA’s

Centralized Mailing List Service in Fort

Worth, Texas at (817) 334–5215.

In addition to the information

provided by EPA and GSA, there are

other publicly-available sources of

information about products containing

recovered materials. For example, the

‘‘Official Recycled Products Guide’’

(RPG) was established in March 1989 to

provide a broad range of information on

recycled content products. Listings

include product, company name,

address, contact, telephone, fax, type of

company (manufacturer or distributor),

and minimum recycled content. Price

information is not included. The RPG is

available on a subscription basis from

American Recycling Market, Inc., (800)

267–0707. Private corporations that

have researched recycled product

availability may also be willing to make

this information publicly available. For

instance, as part of the McRecycle USA

program, the McDonald’s Corporation

established a Registry Service for

manufacturers and suppliers of recycled

content products. The Corporation has

compiled a database of registrants and

makes this information available upon

request. More information on the

McRecycle USA Registry Service is

available by calling (800) 220–3809.

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 list of state

purchasing/procurement officials has

been placed in the RIC and will be

updated periodically. 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. A list of

such trade associations is also included

in the RIC.

V. 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.

The cost of the rule is below the $100

million threshold. However, EPA

believes that the rule may raise policy

issues and, therefore, is considering it a

significant regulatory action. To enable

the Agency to evaluate the potential

impact of today’s action, EPA has

conducted an Economic Impact

Analysis (EIA), discussed below. For

more information on the EIA, see

‘‘Technical Background Document for

the Comprehensive Procurement

Guideline.’’

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),

Pub. 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 this rule

does not include a Federal mandate that

may result in estimated annualized

costs of $100 million or more to either

State, local and tribal governments in

the aggregate, or to the private sector. To

the extent enforceable duties arise as a

result of today’s rule on State, local and

tribal governments, they are exempt

from inclusion as Federal

intergovernmental 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, local and tribal

governments since the estimated

aggregate cost of compliance for them

are not expected to exceed, at the

maximum, $5.1 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 $130,000 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

an affirmative procurement program and

to amend their specifications) for state

and local governments and tribal

authorities. As noted above, the expense

associated with any additional costs is

not expected to exceed, at the

maximum, $5.1 million annually. In

compliance with E.O. 12875, which

requires the involvement of State, local

and tribal governments in the

development of certain Federal

regulatory actions, EPA conducted a

wide outreach effort and actively sought

the input of representatives of state,

local and tribal governments in the

process of developing the final

designation. Thus, Agency personnel

have met with their representatives in a

number of different forums. For

example, EPA staff involved in

development of the CPG spoke and met

with attendees at the annual meeting of

the National Institute for Government

Purchasing, Inc., which includes

representatives of government

purchasing offices. EPA representatives

have met with government officials at

trade association gatherings such as the

National Recycling Coalition annual

conference.

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, local and tribal
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21379

governments, is not expected to exceed,

at the maximum, $5.1 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. Summary of Benefits

EPA anticipates that this 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. This results in a

commensurate reduction in energy use

and 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. In addition to

conserving non-renewable resources,

recycling can also divert large amounts

of materials from landfills, conserving

increasingly valuable space for the

management of materials that truly

require disposal. This reduces the need

to expand existing or site new disposal

facilities, allowing local government

officials to devote more attention to

health, education, and safety issues.

By purchasing products made from

recovered materials, government

agencies can increase opportunities for

realizing these benefits. On a national

and regional level, this 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

enterprises, reference EPA guidelines

when purchasing designated items, the

CPG can result in increased purchase of

recycled products, locally, regionally,

and nationally.

Finally, purchase and use of recycled

products by government agencies can

also spur 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

make American industry more

competitive in the global economy.

D. Summary of Costs

As discussed in Section III, EPA

received several comments regarding

the cost estimates presented in the

proposed CPG. Based on these

comments and actual cost information

submitted by commenting Federal

agencies, EPA modified its approach to

estimating costs attributable to the CPG.

Details on EPA’s approach for

estimating costs presented in this

subsection are included in ‘‘Technical

Background Document for the

Comprehensive Procurement

Guideline.’’ This document is included

in the RCRA docket for this rulemaking.

As shown in Table 2 below, EPA

estimates that the annualized costs of

today’s rule will range from $10 to $13

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

contractors to all three). 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 a

sensitivity analysis to identify the range

of potential costs of this rule. Thus,

high-end and low-end estimates are

presented along with the best estimate.

The primary parameters affecting the

range of cost estimates are the number

of products each procuring agency is

assumed to procure each year and the

number of contractors that will be

affected by this rule.

TABLE 2.—SUMMARY OF ANNUALIZED

COSTS OF CPG TO ALL PROCURING

AGENCIES

Procuring

agency

Total

annualized

costs

($1000)

Best estimate total

annualized

costs

($1000)

Federal agencies ............. $8,100–$7,500 $8,100

States ............ 1,600–1,000 1,600

Local governments ......... 3,500–1,800 2,800

Contractors .... 130–26 79

Total .... 13,300–10,300 12,600

RCRA section 6002(g) requires the

Office of Federal Procurement Policy to

report to Congress every two years on

the actions taken by Federal agencies to

comply with RCRA section 6002. In

developing this report, OFPP requests

information and data from Federal

agencies regarding their affirmative

procurement programs and related

activities. Table 3 below presents the

estimated annualized costs to Federal

agencies, including (1) specification

revision and affirmative procurement

program modification/implementation

costs, and (2) recordkeeping and

reporting costs. The recordkeeping and

reporting costs presented below are the

likely costs that would be incurred by

Federal agencies to maintain and

compile information for and complete

the annual OFPP information request

using the existing OFPP reporting

format (i.e., the format used to collect

information for fiscal years 1993 and

1994).

TABLE 3.—SUMMARY OF BEST ESTIMATE ANNUALIZED COSTS OF CPG TO FEDERAL AGENCIES

Federal agency

Specification revision and APP

costs

($1000)

Recordkeeping

and reporting

costs

($1000)

Total

annualized

costs

($1000)

Civilian Agencies .................................................................................................................. $1,100 1,600 $2,700

Defense Agencies ................................................................................................................ 2,000 3,400 5,400

Total ........................................................................................................................... 3,100 5,000 8,100
21380 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

Many Federal agencies have stated

that the current OFPP format is overly

burdensome and costly to complete. To

address these concerns, the Office of the

Federal Environmental Executive has

formed a workgroup which includes

representatives from OFPP and several

Federal agencies to examine methods of

streamlining the current reporting

format. Based on information and data

submitted by two Federal agencies, EPA

estimates that if OFPP revised the

current format to request data on

purchases made at and above the small

purchase threshold and only anecdotal

information on small purchases and

bankcard acquisitions, Federal

recordkeeping and reporting costs could

be reduced by 75 percent.

E. 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. As

discussed in the proposed CPG (59 FR

18859), relative prices of recycled

content products compared to prices of

comparable virgin products vary. In

many cases, recycled content products

may be less expensive than their virgin

counterparts. In other cases, virgin

products may have lower prices than

recycled content products. However,

other factors can also affect the price of

virgin 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.

F. Regulatory Flexibility Analysis

The primary purpose of the

Regulatory Flexibility Analysis is to

identify if there is an adverse impact to

small businesses that are directly

regulated by the rule and to examine

regulatory alternatives that fall within

the scope of the statutory requirements

that would reduce impacts to small

businesses, small organizations, or small

governmental jurisdictions subject to

the regulation. The RCRA procurement

requirements apply to procuring

agencies that procure more than $10,000

of a designated product. No exemption

is included in the statute for small

businesses. Therefore, EPA has decided

that alternative regulatory approaches

for small businesses are not appropriate

for this rule.

With regard to possible impacts to

small businesses, there may be both

positive and negative impacts to

individual businesses. EPA anticipates

that this rule will provide additional

opportunities for small recycling

businesses to begin supplying recovered

materials to manufacturers and products

made from recovered materials to

procuring agencies. In addition, other

small businesses that do not directly

contract with procuring agencies may be

affected positively by the increased

demand for recovered materials. These

include small businesses involved in

materials recovery programs and

materials recycling. Municipalities that

run recycling programs are also

expected to benefit from the increased

demand for certain recovered materials.

EPA is unable to determine the

number of small businesses that may be

adversely impacted by this rule. It is

possible that if a small business that

currently supplies products to a

procuring agency uses virgin materials

only, the CPG may reduce its ability to

compete for future contracts. However,

the CPG will not affect existing

purchase orders, nor will it preclude

businesses from adapting their product

lines to meet new specification or

solicitation requirements for products

containing recovered materials. Thus,

many small businesses that market to

procuring agencies have the option to

adapt their product lines to meet

specifications.

VI. Supporting Information

In addition to the documents listed in

the preamble to the proposed rule (59

FR 18885–18886; April 20, 1994), EPA

relied on information contained in the

following documents when developing

today’s final Comprehensive

Procurement Guideline:

—‘‘Comprehensive Procurement Guideline—

Supporting Analyses,’’ April 1995.

—‘‘Technical Background Document for the

Comprehensive Procurement Guideline,’’

April 1995.

—‘‘Final Summary of Responses to the

Proposed Comprehensive Guideline for

Procurement of Products Containing

Recovered Materials,’’ prepared for EPA by

Science Applications International

Corporation, Inc., March 1995.

—‘‘Report on Research in Response to

Comments on the Comprehensive

Procurement Guideline,’’ prepared for EPA

by Science Applications International

Corporation, Inc., February 1995.

—‘‘Missing the (Steel) Mark: EPA

Procurement Guidelines Fail to Recognize

Steel,’’ Bill Heenan, The Recycling Magnet,

Fall 1994, p. 2.

—Memoranda to the record and notes from

ex parte communications with industry

and other representatives.

Appendix I—Other Procedures and

Policies Affecting Procurement of

Products Containing Recovered

Materials

A. Federal Acquisition Regulation

The Federal Acquisition Regulation

(FAR) (48 CFR 1) is the primary

regulation used by Executive agencies in

their acquisition of supplies and

services. Part 23 sets forth requirements

and procedures for Federal agencies to

use when procuring EPA-designated

items.

B. OFPP Policy Letter 92–4

The White House Office of Federal

Procurement Policy’s Policy Letter 92–

4, ‘‘Procurement of EnvironmentallySound and Energy-Efficient Products

and Services’’ (57 FR 53362), establishes

Executive branch policies for the

acquisition and use of environmentallysound, energy-efficient products and

services. In addition to reiterating the

requirements of RCRA section 6002, the

Policy Letter requires Executive

agencies to (1) identify and procure

products and services that, all factors

taken into consideration, are

environmentally-sound and energyefficient, and (2) employ life cycle cost

analysis to assist in making product and

service selections.

C. OMB Circular A–102

On October 14, 1994, the White House

Office of Management and Budget

published revisions to OMB Circular A–

102, ‘‘Grants and Cooperative

Agreements with State and Local

Governments’’ (59 FR 52224). Paragraph

2(h) of the circular requires State and

local government recipients of Federal

assistance funding to comply with

RCRA section 6002.

D. OMB Circular A–119

OMB Circular A–119, ‘‘Federal

Participation in the Development and

Use of Voluntary Standards’’ (54 FR

57645), sets forth policy for Executive

agencies to follow in working with

voluntary standards bodies and in

adopting and using voluntary standards.

Paragraph 7(a)(4) recommends that

Federal agencies give preference to

adopting and using standards that

‘‘foster materials, products, systems, or

practices that are environmentallysound and energy-efficient.’’

E. OMB Circular A–131

OMB Circular A–131, ‘‘Value

Engineering’’ (58 FR 31056), requires

Executive agencies to use value

engineering as a management tool to

reduce program and acquisition costs.

Paragraph 8(b) requires agencies to
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21381

develop guidelines for both in-house

personnel and contractors to identify

programs/projects with the most

potential to yield savings from the

application of value engineering

techniques. Paragraph 3(b)(4) further

requires this guidance to ensure that the

application of value engineering to

construction and other projects/

programs includes consideration of

environmentally-sound and energyefficient results.

List of Subjects

40 CFR Part 247

Environmental protection, Carpet,

Cement industry, Engine coolant, Floor

tiles, Government procurement,

Insulation, Landscaping industry, Office

products, Paper and paper products

industry, Park and recreation products,

Patio blocks, Petroleum, Recycling,

Tires, Traffic control devices.

40 CFR Parts 248, 249, 250, 252, and

253

Cement industry, Government

procurement, Insulation, Paper and

paper products industry, Petroleum,

Recycling.

Dated: April 21, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40 of the Code of Federal

Regulations, parts 247, 248, 249, 250,

252, and 253, are amended as set forth

below.

PARTS 248, 249, 250, 252, AND 253—

[REMOVED]

1. Parts 248, 249, 250, 252, and 253

are removed.

2. Part 247 is revised to read as

follows.

PART 247—COMPREHENSIVE

PROCUREMENT GUIDELINE FOR

PRODUCTS CONTAINING

RECOVERED MATERIALS

Subpart A—General

Sec.

247.1 Purpose and scope.

247.2 Applicability.

247.3 Definitions.

247.4 Contracting officer requirements.

247.5 Specifications.

247.6 Affirmative procurement programs.

247.7 Effective date.

Subpart B—Item Designations

247.10 Paper and paper products.

247.11 Vehicular products.

247.12 Construction products.

247.13 Transportation products.

247.14 Park and recreation products.

247.15 Landscaping products.

247.16 Non-paper office products.

247.17 Miscellaneous products. [Reserved]

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

E.O. 12873, 58 FR 54911.

Subpart A—General

§ 247.1 Purpose and scope.

(a) The purpose of this guideline is to

assist procuring agencies in complying

with the requirements of section 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. 6962, and Executive

Order 12873, as they apply to the

procurement of the items designated in

subpart B of this part.

(b) This guideline designates items

that are or can be made with recovered

materials and whose procurement by

procuring agencies will carry out the

objectives of section 6002 of RCRA.

EPA’s recommended practices with

respect to the procurement of specific

designated items are found in the

companion Recovered Materials

Advisory Notice(s).

(c) EPA believes that adherence to the

recommendations in the Recovered

Materials Advisory Notice(s) constitutes

compliance with RCRA section 6002.

However, procuring agencies may adopt

other types of procurement programs

consistent with RCRA section 6002.

§ 247.2 Applicability.

(a)(1) This guideline applies to all

procuring agencies and to all

procurement actions involving items

designated by EPA in this part, where

the procuring agency purchases $10,000

or more worth of one of these items

during the course of a fiscal year, or

where the cost of such items or of

functionally equivalent items purchased

during the preceding fiscal year was

$10,000 or more.

(2) This guideline applies to Federal

agencies, to State and local agencies

using appropriated Federal funds to

procure designated items, and to

persons contracting with any such

agencies with respect to work performed

under such contracts. Federal procuring

agencies should note that the

requirements of RCRA section 6002

apply to them whether or not

appropriated Federal funds are used for

procurement of designated items.

(3) The $10,000 threshold applies to

procuring agencies as a whole rather

than to agency subgroups such as

regional offices or subagencies of a

larger department or agency.

(b) The term ‘‘procurement actions’’

includes:

(1) Purchases made directly by a

procuring agency and purchases made

directly by any person (e.g., a

contractor) in support of work being

performed for a procuring agency, and

(2) Any purchases of designated items

made ‘‘indirectly’’ by a procuring

agency, as in the case of procurements

resulting from grants, loans, funds, and

similar forms of disbursements of

monies.

(c)(1) This guideline does not apply to

purchases of designated items which are

unrelated to or incidental to Federal

funding, i.e., not the direct result of a

contract or agreement with, or a grant,

loan, or funds disbursement to, a

procuring agency.

(2) This guideline also does not apply

to purchases made by private party

recipients (e.g., individuals, non-profit

organizations) of Federal funds pursuant

to grants, loans, cooperative agreements,

and other funds disbursements.

§ 247.3 Definitions.

As used in this procurement guideline

and the related Recovered Materials

Advisory Notice(s):

Act or RCRA means the Solid Waste

Disposal Act, as amended by the

Resource Conservation and Recovery

Act, as amended, 42 U.S.C 6901 et seq;

Blanket insulation means relatively

flat and flexible insulation in coherent

sheet form, furnished in units of

substantial area. Batt insulation is

included in this term;

Board insulation means semi-rigid

insulation preformed into rectangular

units having a degree of suppleness,

particularly related to their geometrical

dimensions;

Building insulation means a material,

primarily designed to resist heat flow,

which is installed between the

conditioned volume of a building and

adjacent unconditioned volumes or the

outside. This term includes but is not

limited to insulation products such as

blanket, board, spray-in-place, and

loose-fill that are used as ceiling, floor,

foundation, and wall insulation;

Cellulose fiber loose-fill means a basic

material of recycled wood-based

cellulosic fiber made from selected

paper, paperboard stock, or ground

wood stock, excluding contaminated

materials which may reasonably be

expected to be retained in the finished

product, with suitable chemicals

introduced to provide properties such as

flame resistance, processing and

handling characteristics. The basic

cellulosic material may be processed

into a form suitable for installation by

pneumatic or pouring methods;

Engine lubricating oils means

petroleum-based oils used for reducing

friction in engine parts;

Federal agency means any

department, agency, or other

instrumentality of the Federal

government; any independent agency or
21382 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

establishment of the Federal

government including any government

corporation; and the Government

Printing Office;

Fiberglass insulation means

insulation which is composed

principally of glass fibers, with or

without binders;

Foam-in-place insulation is rigid

cellular foam produced by catalyzed

chemical reactions that hardens at the

site of the work. The term includes

spray-applied and injected applications

such as spray-in-place foam and pourin-place;

Gear oils means petroleum-based oils

used for lubricating machinery gears;

Hydraulic fluids means petroleumbased hydraulic fluids;

Hydraulic mulch means a mulch that

is a cellulose-based (paper or wood)

protective covering that is mixed with

water and applied through mechanical

spraying in order to aid the germination

of seeds and to prevent soil erosion;

Hydroseeding means the process of

spraying seeds mixed with water

through a mechanical sprayer

(hydroseeder). Hydraulic mulch,

fertilizer, a tacking agent, or a wetting

agent can also be added to the water/

seed mix for enhanced performance;

Laminated paperboard means board

made from one or more plies of kraft

paper bonded together, with or without

facers, that is used for decorative,

structural, or insulating purposes;

Loose-fill insulation means insulation

in granular, nodular, fibrous, powdery,

or similar form, designed to be installed

by pouring, blowing or hand placement;

Mineral fiber insulation means

insulation (rock wool or fiberglass)

which is composed principally of fibers

manufactured from rock, slag or glass,

with or without binders;

Paper means one of two broad

subdivisions of paper products, the

other being paperboard. Paper is

generally lighter in basis weight,

thinner, and more flexible than

paperboard. Sheets 0.012 inch or less in

thickness are generally classified as

paper. Its primary uses are for printing,

writing, wrapping, and sanitary

purposes. However, in this guideline,

the term paper is also used as a generic

term that includes both paper and

paperboard.

Paper product means any item

manufactured from paper or

paperboard. The term paper product is

used in this guideline to distinguish

such items as boxes, doilies, and paper

towels from printing and writing papers.

Perlite composite board means

insulation board composed of expanded

perlite and fibers formed into rigid, flat,

rectangular units with a suitable sizing

material incorporated in the product. It

may have on one or both surfaces a

facing or coating to prevent excessive

hot bitumen strike-in during roofing

installation;

Person means an individual, trust,

firm, joint stock company, corporation

(including a government corporation),

partnership, association, Federal

agency, State, municipality,

commission, political subdivision of a

State, or any interstate body;

Phenolic insulation means insulation

made with phenolic plastics which are

plastics based on resins made by the

condensation of phenols, such as

phenol or cresol, with aldehydes;

Polyisocyanurate insulation means

insulation produced principally by the

polymerization of polymeric

polyisocyanates, usually in the presence

of polyhydroxyl compounds with the

addition of cell stabilizers, blowing

agents, and appropriate catalyst to

produce a polyisocyanurate chemical

structure;

Polystyrene insulation means an

organic foam composed principally of

polymerized styrene resin processed to

form a homogenous rigid mass of cells;

Polyurethane insulation means

insulation composed principally of the

catalyzed reaction product of

polyisocyanates and polyhydroxyl

compounds, processed usually with a

blowing agent to form a rigid foam

having a predominantly closed cell

structure;

Postconsumer material means a

material or finished product that has

served its intended use and has been

diverted or recovered from waste

destined for disposal, having completed

its life as a consumer item.

Postconsumer material is a part of the

broader category of recovered materials.

Postconsumer recovered paper means:

(1) Paper, paperboard and fibrous

wastes from retail stores, office

buildings, homes and so forth, after they

have passed through their end-usage as

a consumer item including: Used

corrugated boxes; old newspapers; old

magazines; mixed waste paper;

tabulating cards and used cordage; and

(2) All paper, paperboard and fibrous

wastes that enter and are collected from

municipal solid waste;

Practicable means capable of being

used consistent with: Performance in

accordance with applicable

specifications, availability at a

reasonable price, availability within a

reasonable period of time, and

maintenance of a satisfactory level of

competition;

Procurement item means any device,

good, substance, material, product, or

other item, whether real or personal

property, which is the subject of any

purchase, barter, or other exchange

made to procure such item;

Procuring agency means any Federal

agency, or any State agency or agency of

a political subdivision of a State, which

is using appropriated Federal funds for

such procurement, or any person

contracting with any such agency with

respect to work performed under such

contract;

Purchasing means the act of and the

function of responsibility for the

acquisition of equipment, materials,

supplies, and services, including:

Buying, determining the need, selecting

the supplier, arriving at a fair and

reasonable price and terms and

conditions, preparing the contract or

purchase order, and follow-up;

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;

Recovered materials, for purposes of

purchasing paper and paper products,

means waste material and byproducts

that 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. In the case of paper and paper

products, the term recovered materials

includes:

(1) Postconsumer materials such as—

(i) Paper, paperboard, and fibrous

wastes from retail stores, office

buildings, homes, and so forth, after

they have passed through their endusage as a consumer item, including:

Used corrugated boxes; old newspapers;

old magazines; mixed waste paper;

tabulating cards; and used cordage; and

(ii) All paper, paperboard, and fibrous

wastes that enter and are collected from

municipal solid waste, and

(2) Manufacturing, forest residues,

and other wastes such as—

(i) Dry paper and paperboard waste

generated after completion of the

papermaking process (that is, those

manufacturing operations up to and

including the cutting and trimming of

the paper machine reel in smaller rolls

of rough sheets) including: Envelope

cuttings, bindery trimmings, and other

paper and paperboard waste, resulting

from printing, cutting, forming, and

other converting operations; bag, box,

and carton manufacturing wastes; and

butt rolls, mill wrappers, and rejected

unused stock; and

(ii) Finished paper and paperboard

from obsolete inventories of paper and
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations 21383

paperboard manufacturers, merchants,

wholesalers, dealers, printers,

converters, or others;

(iii) Fibrous byproducts of harvesting,

manufacturing, extractive, or woodcutting processes, flax, straw, linters,

bagasse, slash, and other forest residues;

(iv) Wastes generated by the

conversion of goods made from fibrous

material (that is, waste rope from

cordage manufacture, textile mill waste,

and cuttings); and

(v) Fibers recovered from waste water

which otherwise would enter the waste

stream.

Re-refined oils means used oils from

which the physical and chemical

contaminants acquired through previous

use have been removed through a

refining process;

Retread tire means a worn

automobile, truck, or other motor

vehicle tire whose tread has been

replaced;

Rock wool insulation means

insulation which is composed

principally from fibers manufactured

from slag or natural rock, with or

without binders;

Specification means a description of

the technical requirements for a

material, product, or service that

includes the criteria for determining

whether these requirements are met. In

general, specifications are in the form of

written commercial designations,

industry standards, and other

descriptive references;

Spray-in-place insulation means

insulation material that is sprayed onto

a surface or into cavities and includes

cellulose fiber spray-on as well as

plastic rigid foam products;

Spray-in-place foam is rigid cellular

polyurethane or polyisocyanurate foam

produced by catalyzed chemical

reactions that hardens at the site of the

work. The term includes spray-applied

and injected applications;

State means any of the several states,

the District of Columbia, the

Commonwealth of Puerto Rico, the

Virgin Islands, Guam, American Samoa,

and the Commonwealth of the Northern

Mariana Islands;

Structural fiberboard means a fibrousfelted, homogenous panel made from

lignocellulosic fibers (usually wood,

cane, or paper) and having a density of

less than 31 lbs/ft3 but more than 10 lbs/

ft3. It is characterized by an integral

bond which is produced by interfelting

of the fibers, but which has not been

consolidated under heat or pressure as

a separate stage of manufacture;

Tire means the following types of

tires: Passenger car tires, light- and

heavy-duty truck tires, high-speed

industrial tires, bus tires, and special

service tires (including military,

agricultural, off-the-road, and slowspeed industrial);

§ 247.4 Contracting officer requirements.

Within one year after the effective

date of each item designation,

contracting officers shall require that

vendors:

(a) Certify that the percentage of

recovered materials to be used in the

performance of the contract will be at

least the amount required by applicable

specifications or other contractual

requirements, and

(b) Estimate the percentage of total

material utilized for the performance of

the contract which is recovered

materials.

§ 247.5 Specifications.

(a) RCRA section 6002(d)(1) required

Federal agencies that have the

responsibility for drafting or reviewing

specifications for procurement items

procured by Federal agencies to revise

their specifications by May 8, 1986, to

eliminate any exclusion of recovered

materials and any requirement that

items be manufactured from virgin

materials.

(b) RCRA section 6002(d)(2) requires

that within one year after the

publication date of each item

designation by the EPA, each procuring

agency must assure that its

specifications for these items require the

use of recovered materials to the

maximum extent possible without

jeopardizing the intended end use of

these items.

§ 247.6 Affirmative procurement programs.

RCRA section 6002(i) provides that

each procuring agency which purchases

items designated by EPA must establish

an affirmative procurement program,

containing the four elements listed

below, for procuring such items

containing recovered materials to the

maximum extent practicable:

(a) Preference program for purchasing

the designated items;

(b) Promotion program;

(c) Procedures for obtaining estimates

and certifications of recovered materials

content and for verifying the estimates

and certifications; and

(d) Annual review and monitoring of

the effectiveness of the program.

§ 247.7 Effective date.

Within one year after the date of

publication of any item designation,

procuring agencies which purchase that

designated item must comply with the

following requirements of RCRA:

affirmative procurement of the

designated item (6002(c)(1) and (i)),

specifications revision (6002(d)(2)),

vendor certification and estimation of

recovered materials content of the item

(6002(c)(3) and (i)(2)(C)), and

verification of vendor estimates and

certifications (6002(i)(2)C)).

Subpart B—Item Designations

§ 247.10 Paper and paper products.

Paper and paper products, excluding

building and construction paper grades.

§ 247.11 Vehicular products.

(a) Lubricating oils containing rerefined oil, including engine lubricating

oils, hydraulic fluids, and gear oils,

excluding marine and aviation oils.

(b) Tires, excluding airplane tires.

(c) Reclaimed engine coolants,

excluding coolants used in nonvehicular applications.

§ 247.12 Construction products.

(a) Building insulation products,

including the following items:

(1) Loose-fill insulation, including but

not limited to cellulose fiber, mineral

fibers (fiberglass and rock wool),

vermiculite, and perlite;

(2) Blanket and batt insulation,

including but not limited to mineral

fibers (fiberglass and rock wool);

(3) Board (sheathing, roof decking,

wall panel) insulation, including but not

limited to structural fiberboard and

laminated paperboard products, perlite

composite board, polyurethane,

polyisocyanurate, polystyrene,

phenolics, and composites; and

(4) Spray-in-place insulation,

including but not limited to foam-inplace polyurethane and

polyisocyanurate, and spray-on

cellulose.

(b) Structural fiberboard and

laminated paperboard products for

applications other than building

insulation, including 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).

(c) Cement and concrete, including

concrete products such as pipe and

block, containing coal fly ash or ground

granulated blast furnace (GGBF) slag.

(d) Carpet made of polyester fiber for

use in low- and medium-wear

applications.

(e) Floor tiles and patio blocks

containing recovered rubber or plastic.

§ 247.13 Transportation products.

Traffic barricades and traffic cones

used in controlling or restricting

vehicular traffic.
21384 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Rules and Regulations

§ 247.14 Park and recreation products.

Playground surfaces and running

tracks containing recovered rubber or

plastic.

§ 247.15 Landscaping products.

(a) Hydraulic mulch products

containing recovered paper or recovered

wood used for hydroseeding and as an

over-spray for straw mulch in

landscaping, erosion control, and soil

reclamation.

(b) Compost made from yard

trimmings, leaves, and/or grass

clippings 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.

§ 247.16 Non-paper office products.

(a) Office recycling containers and

office waste receptacles.

(b) Plastic desktop accessories.

(c) Toner cartridges.

(d) Binders.

(e) Plastic trash bags.

§ 247.17 Miscellaneous products.

[Reserved]

[FR Doc. 95–10509 Filed 4–28–95; 8:45 am]

BILLING CODE 6560–50–P