[Federal Register Volume 62, Number 219 (Thursday, November 13, 1997)]
[Rules and Regulations]
[Pages 60962-60974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29734]



[[Page 60961]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 247



Comprehensive Guideline for Procurement of Products Containing 
Recovered Materials; Final Rule

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

[[Page 60962]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 247

[SWH-FRL-5909-6]
RIN 2050-AE23


Comprehensive Guideline for Procurement of Products Containing 
Recovered Materials

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency today is issuing an 
amendment to the May 1, 1995 Comprehensive Procurement Guideline (CPG). 
EPA is designating 12 new items that are or can be made with recovered 
materials. These items are shower and restroom dividers/partitions; 
consolidated and reprocessed latex paint for specified uses; parking 
stops; channelizers; delineators; flexible delineators; plastic fencing 
for specified uses; garden and soaker hoses; lawn and garden edging; 
printer ribbons; plastic envelopes; and pallets. In addition, this 
action clarifies EPA's previous designation of floor tiles, structural 
fiberboard, and laminated paperboard as items that can be made with 
recovered materials.
    The CPG implements section 6002 of the Resource Conservation and 
Recovery Act (RCRA), which requires EPA to designate items that are or 
can be produced with recovered materials and to recommend practices for 
the procurement of designated items by procuring agencies. Once EPA 
designates an item, RCRA requires any procuring agency using 
appropriated Federal funds to procure that item to purchase it with the 
highest percentage of recovered materials practicable. Today's action 
will foster markets for materials recovered from solid waste by using 
government purchasing power to stimulate the use of these materials in 
the manufacture of new products.
    RCRA section 6002 provides certain limited exceptions to the 
general requirement to buy EPA-designated items. Under certain 
circumstances based on competition, price, availability, and 
performance, procuring agencies are not required to purchase an item 
designated by EPA. In the May 1, 1995 CPG, EPA codified the RCRA 
section 6002 procurement requirements for the convenience of procuring 
agencies so they can find all of the RCRA section 6002 procurement 
provisions, as well as EPA's item designations, in one location. EPA 
inadvertently omitted the limitations from the codification of agency 
requirements, however. Today, EPA is codifying these procurement 
limitations with the affirmative procurement program portion of the CPG 
for the convenience of procuring agencies.

EFFECTIVE DATES: The amendments to the Comprehensive Procurement 
Guideline designating additional procurement items (Secs. 247.3; 247.12 
through 247.17) are effective on November 13, 1998. The amendment 
adding the procurement limitations (Sec. 247.2(d)) is effective 
November 13, 1997.

ADDRESSES: The public docket for this notice is Docket F-97-CP2F-FFFFF. 
Documents related to today's notice are available for viewing in the 
RCRA Information Center (RIC), which is located at U.S. Environmental 
Protection Agency, Crystal Gateway One, 1235 Jefferson Davis Highway, 
Ground Floor, Arlington, VA 22202. The RIC is open from 9 a.m. to 4 
p.m., Monday through Friday, except for Federal holidays. To review 
docket materials, it is recommended that the public make an appointment 
by calling (703) 603-9230. The public may copy a maximum of 100 pages 
from any regulatory docket at no charge. Additional copies cost $0.15/
page. The index and some supporting materials are available 
electronically. See Section VIII of the ``Supplementary Information'' 
section below for information on accessing the documents 
electronically.

FOR FURTHER INFORMATION CONTACT:

    General procurement guidelines information: RCRA Hotline at (800) 
424-9346, TDD (800) 553-7672 (hearing impaired) or, in the Washington, 
DC area at (703) 412-9810 or TDD (703) 412-3323.
    Technical information on individual item recommendations: For paper 
and paper products, vehicular products, construction products, non-
paper office products, and pallets: Dana Arnold, (703) 308-7279; for 
landscaping products, transportation products, and park and recreation 
products: Terry Grist, (703) 308-7257.

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Authority
II. Regulated Entities
III. Background
    A. Criteria for Selecting Items for Designation
    B. Procurement Limitations of RCRA Section 6002
    C. Clarification of Floor Tiles, Structural Fiberboard and 
Laminated Paperboard Designations
    1. Floor Tiles
    2. Structural Fiberboard and Laminated Paperboard
IV. Definitions
V. Comment Summary and Agency's Response
    A. General Comments
    1. Recordkeeping and Reporting
    2. Interaction Between RCRA Section 6002 and the Federal 
Acquisition Regulation
    3. Designation of Materials
    B. Comments on Proposed Item Designations
    1. Shower and Restroom Dividers
    2. Latex Paint
    3. Snow Fencing
    4. Ink Jet Cartridges
    C. Comments on Other Items Considered for Designation
    D. Comments on Public Participation Process
VI. Availability of Designated Items
VII. Economic Impact Analysis
    A. Requirements of Executive Order 12866
    1. Summary of Costs
    2. Product Cost
    3. Summary of Benefits
    B. Unfunded Mandates Reform Act of 1995 and Consultation with 
State, Local, and Tribal Governments
    C. Impacted Entities
    D. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
VIII. Supporting Information and Accessing Internet
IX. Submission to Congress and the General Accounting Office

I. Authority

    This amendment to the Comprehensive Procurement Guideline is 
promulgated under the authority of sections 2002(a) and 6002 of the 
Solid Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6912(a) and 6962, 
and section 502 of Executive Order 12873, ``Federal Acquisition, 
Recycling, and Waste Prevention'' (58 FR 54911, October 22, 1993).

II. Regulated Entities

    This action may potentially affect those procuring agencies that 
purchase the following: shower and restroom dividers/partitions, 
consolidated and reprocessed latex paint for specified uses, floor 
tiles, structural fiberboard, laminated paperboard, parking stops, 
temporary traffic control devices, plastic fencing for specified uses, 
garden and soaker hose, lawn and garden edging, printer ribbons, 
plastic envelopes, or pallets. For purposes of RCRA section 6002, 
procuring agencies include the following: (1) any Federal agency; (2) 
any State or local agencies using appropriated Federal funds for a 
procurement; or (3) any contractors with these agencies (with respect 
to work performed under the contract). See

[[Page 60963]]

RCRA section 1004(17). The requirements of section 6002 apply to such 
procuring agencies only when procuring designated items where the price 
of the item exceeds $10,000 or the quantity of the item purchased in 
the previous year exceeded $10,000. Potential regulated entities for 
this rule are shown in Table 1.

   Table 1.--Entities Potentially Subject to Section 6002 Requirements  
                       Triggered by CPG Amendments                      
------------------------------------------------------------------------
             Category                  Examples of regulated entities   
------------------------------------------------------------------------
Federal Government................  Federal departments or agencies that
                                     procure $10,000 or more worth of a 
                                     designated item in a given year.   
State Government..................  A State agency that uses            
                                     appropriated Federal funds to      
                                     procure $10,000 or more worth of a 
                                     designated item in a given year.   
Local Government..................  A local agency that uses            
                                     appropriated Federal funds to      
                                     procure $10,000 or more worth of a 
                                     designated item in a given year.   
Contractor........................  A contractor working on a project   
                                     funded by appropriated Federal     
                                     funds that purchases $10,000 or    
                                     more worth of a designated item in 
                                     a given year.                      
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities that could potentially be subject 
to regulatory requirements triggered by this action. To determine 
whether your procurement practices are affected by this action, you 
should carefully examine the applicability criteria in 40 CFR 247.2. If 
you have questions regarding the applicability of this action to a 
particular entity, consult the persons listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

III. Background

    Section 6002(e) of RCRA requires EPA to designate items that are or 
can be made with recovered materials and to recommend practices to 
assist procuring agencies in meeting their obligations with respect to 
procurement of designated items under RCRA section 6002. RCRA requires 
that each procuring agency, when purchasing an EPA-designated item, 
must purchase that item composed of the highest percentage of recovered 
materials practicable.
    Executive Order 12873 (Executive Order) establishes the procedure 
for EPA to follow in implementing RCRA section 6002(e). Section 502 of 
the Executive Order directs EPA to issue a Comprehensive Procurement 
Guideline (CPG) that designates items that are or can be made with 
recovered materials. Concurrent with the CPG, EPA must publish its 
recommended procurement practices for purchasing designated items, 
including recovered materials content levels, in a related Recovered 
Materials Advisory Notice (RMAN). The Executive Order also directs EPA 
to update the CPG annually and to issue RMANs periodically to reflect 
changing market conditions. The original CPG (CPG I) was published on 
May 1, 1995 (60 FR 21370). It established eight product categories, 
designated 19 new items, and consolidated five earlier item 
designations. Concurrently, EPA published the first RMAN (RMAN I) (60 
FR 21386).
    On November 7, 1996, EPA proposed to designate 13 additional items 
(CPG II) and published draft recommendations for purchasing those items 
containing recovered materials (RMAN II). See 61 FR 57748-57759 and 61 
FR 57760-57766, respectively. EPA also proposed clarifications of the 
previous designations of floor tiles, structural fiberboard, and 
laminated paperboard. In addition, EPA proposed to codify the RCRA 
section 6002 limitations on the affirmative procurement requirements, 
which had inadvertently been omitted from CPG I. Today, EPA is (1) 
designating 12 of the items, (2) clarifying the previous designations 
of floor tiles, structural, fiberboard, and laminated paperboard, and 
(3) codifying the procurement limitations. As explained in section 
V.B.3 below, EPA has decided not to designate ink jet cartridges. The 
12 newly-designated items are listed below under their associated 
product category.

Construction Products

Shower and restroom dividers/partitions
Consolidated and reprocessed latex paint for specified uses

Transportation Products

Parking stops
Channelizers
Delineators
Flexible delineators

Park and Recreation Products

Plastic fencing for specified uses

Landscaping Products

Garden and soaker hoses
Lawn and garden edging

Non-Paper Office Products

Printer ribbons
Plastic envelopes

Miscellaneous

Pallets

A. Criteria for Selecting Items for Designation

    While not limiting consideration to these criteria, RCRA section 
6002(e) requires EPA to consider the following when determining which 
items it will designate:
    (1) Availability of the item;
    (2) Potential impact of the procurement of the item by procuring 
agencies on the solid waste stream;
    (3) Economic and technological feasibility of producing the item; 
and
    (4) Other uses for the recovered materials used to produce the 
item.
    EPA consulted with Federal procurement and requirements officials 
to identify other criteria to consider when selecting items for 
designation. Based on these discussions, the Agency concluded that the 
limitations set forth in RCRA section 6002(c) should also be factored 
into its selection decisions. This provision requires each procuring 
agency that procures an item designated by EPA to procure the item 
composed of the highest percentage of recovered materials practicable, 
while maintaining a satisfactory level of competition. A procuring 
agency, however, may decide not to procure an EPA-designated item 
containing recovered materials if it determines: (1) the item is not 
reasonably available within a reasonable period of time; (2) the item 
fails to meet the performance standards set forth in the agency's 
specification; or (3) the item is available only at an unreasonable 
price.
    EPA recognized that these limitations could limit the potential 
impact of an individual item designation to the extent they provide 
procuring agencies with a rationale for not purchasing EPA-designated 
items with recovered materials content. (The limitations of section 
6002(c) also effectively describe the circumstances in which a 
designated

[[Page 60964]]

item is ``available'' for purposes of the statute.) For this reason, 
EPA takes into account the limitations cited in RCRA section 6002(c) in 
its selection of items for designation in the CPG. Thus, in the May 1, 
1995 CPG I, the Agency stated that it had developed the following 
criteria for use in selecting items for designation: use of materials 
found in solid waste, economic and technological feasibility and 
performance, impact of government procurement, availability and 
competition, and other uses for recovered materials. EPA provided a 
detailed discussion of these criteria in the CPG I background documents 
and repeated that discussion, for the convenience of the reader, in 
Section II of the document entitled, ``Comprehensive Procurement 
Guideline (CPG) II--Supporting Analyses.'' A copy of this document is 
included in the RCRA public docket for the proposed CPG II rule, docket 
F-96-CP2P-FFFFF.
    In CPG I, EPA stated that it had adopted two approaches in its 
designation of items that are made with recovered materials. For some 
items, such as floor tiles, the Agency designated broad categories of 
items and provided information in the RMAN as to their appropriate 
applications or uses. For other items, such as plastic trash bags, EPA 
designated specific items, and, in some instances, included in the 
designation the specific types of recovered materials or applications 
to which the designation applies. The Agency explained these approaches 
to designating items in the preamble to CPG I (60 FR 21373, May 1, 
1995).

    EPA sometimes had information on the availability of a 
particular item made with a specific recovered material (e.g., 
plastic), but no information on the availability of the item made 
from a different recovered material or any indication that it is 
possible to make the item with a different recovered material. In 
these instances, EPA concluded that it was appropriate to include 
the specific material in the item designation in order to provide 
vital information to procuring agencies as they seek to fulfill 
their obligations to purchase designated items composed of the 
highest percentage of recovered materials practicable. This 
information enables the agencies to focus their efforts on products 
that are currently available for purchase, reducing their 
administrative burden. EPA also included information in the proposed 
CPG, as well as in the draft RMAN that accompanied the proposed CPG, 
that advised procuring agencies that EPA is not recommending the 
purchase of an item made from one particular material over a similar 
item made from another material. For example, EPA included the 
following statement in the preamble discussion for plastic desktop 
accessories (59 FR 18879, April 20, 1994): This designation does not 
preclude a procuring agency from purchasing desktop accessories 
manufactured from another material, such as wood. It simply requires 
that a procuring agency, when purchasing plastic desktop 
accessories, purchase these accessories made with recovered 
materials.''

    The Agency understands that some procuring agencies may believe 
that the designation of a broad category of items in the CPG requires 
them (1) to procure all items included in such category with recovered 
materials content and (2) to establish an affirmative procurement 
program for the entire category of items, even where specific items 
within the category may not meet current performance standards. This is 
clearly not required under RCRA as implemented through the CPG and the 
RMAN. RCRA section 6002 does not require a procuring agency to purchase 
items with recovered materials content that are not available or that 
do not meet a procuring agency's specifications or reasonable 
performance standards for the contemplated use. Further, section 6002 
does not require a procuring agency to purchase such items if the item 
with recovered materials content is only available at an unreasonable 
price or the purchase of such item is inconsistent with maintaining a 
reasonable level of competition. However, EPA stresses that, when 
procuring any product for which a recovered materials alternative is 
available that meets the procuring agency's performance needs, if all 
other factors are equal, the procuring agency should seek to purchase 
the product made with highest percentage of recovered materials 
practicable.
    The items designated today have all been evaluated with respect to 
the EPA's criteria. Details of these evaluations are discussed in 
``Final CPG II/RMAN II Background Document,'' which has been placed in 
the docket for the final CPG II and RMAN II and is available 
electronically. (See Section VIII below for Internet access 
directions.)

B. Procurement Limitations of RCRA Section 6002

    In the May 1, 1995 CPG, the Agency amended 40 CFR 247.2 to include 
the RCRA provisions on the applicability of the guidelines to procuring 
agencies. (See 60 FR 21381.) In that amendment, EPA inadvertently 
failed to include the statutory exceptions to the general requirement 
to purchase designated items set forth in section 6002(c)(1) (A) 
through (C). Today, in Sec. 247.2(d), EPA is adding these procurement 
limitations. As discussed in the previous section, these provisions 
authorize a procuring agency to decide not to purchase EPA designated 
items with recovered materials based on the following determinations:
    1. The agency is unable to secure a satisfactory level of 
competition;
    2. The item is not reasonably available within a reasonable period 
of time;
    3. The item fails to meet the reasonable performance standards set 
forth in the agency's specification; and
    4. The item is available only at an unreasonable price.
    EPA received no comments on the proposed language and, as noted 
above, is today amending Sec. 247.2 to add these provisions. EPA is 
making this amendment effective immediately. Section 553(d) of the 
Administrative Procedure Act authorizes an exception to the general 
requirement that a substantive rule must be published 30 days before 
its effective date where an agency determines there is good cause for 
doing so. As explained above, these amendments merely codify the 
statutory conditions spelled out in section 6002(c) under which a 
procuring agency may determine not to procure items designated in the 
guidelines. Today's amendments do not change a procuring agency's 
current obligations under section 6002 of RCRA to procure designated 
items to the maximum extent practicable but merely restate in the 
regulations the exceptions to the general requirement provided in the 
statute. Under the circumstances, there is good cause for making these 
amendments effective immediately.

C. Clarification of Floor Tiles, Structural Fiberboard and Laminated 
Paperboard Designations

    In the May 1, 1995 CPG, EPA designated floor tiles, structural 
fiberboard, and laminated paperboard and, in the RMAN, provided 
recommendations for purchasing these items containing recovered 
materials. EPA has since learned that there may be some confusion on 
the part of procuring agencies as to their obligation to purchase these 
items for specific applications. In fact, the Agency received inquiries 
regarding the requirements to purchase floor tile and structural 
fiberboard for use as acoustical ceiling tile. Based on these 
inquiries, the Agency concluded that it should clarify the obligations 
of procuring agencies with respect to these items. Additionally, the 
Agency published a separate notice in the Federal Register providing 
additional information to assist procuring agencies in determining 
their obligation to purchase designated items for specific

[[Page 60965]]

applications and to clarify these issues. See 61 FR 58067, November 12, 
1996.
1. Floor Tiles
    In the original CPG, EPA designated 19 items that are, or can be, 
produced with recovered materials content, including floor tiles and 
patio blocks containing recovered rubber or plastic [40 CFR 247.12(e)]. 
The Agency designated these items as broad categories of items, 
encompassing many different applications. In the companion RMAN, 
however, the Agency recommended that procuring agencies purchase floor 
tiles with specified minimum recovered rubber or plastic content for 
``heavy duty/commercial type'' applications only. EPA limited the 
recommended applications to heavy-duty/commercial-type uses because, at 
the time CPG I was issued, the Agency was not aware of any 
manufacturers that made floor tile with recovered materials for 
standard office flooring. However, at least two manufacturers were 
reportedly considering using recovered materials in standard office 
flooring and one manufacturer indicated that these products would be 
available in 1995, the year CPG I was issued. This information 
suggested to the Agency that floor tiles could be made with recovered 
materials for standard office flooring. Therefore, the Agency elected 
to broadly designate floor tiles and limit its initial recommendations 
to heavy-duty/commercial type uses. The Agency has no information that 
standard office floor tiles are currently commercially available 
containing recovered materials.
    In CPG I and RMAN I, EPA used the term ``heavy-duty, commercial-
type uses'' because there were no published industry-wide definitions 
to describe the applications to which the recovered materials 
requirements of the CPG should be applied. In the supporting analysis 
for RMAN I, EPA explained what it meant by ``heavy-duty, commercial-
type applications.'' There, the Agency described, in general terms, a 
number of commercial and industrial settings where the use of such 
tiles with recovered materials content would be appropriate. These 
would include entranceways in airports and stores, furniture showrooms, 
skating rinks and fitness centers. EPA has learned that this discussion 
may have caused some confusion. Some procuring agencies may have 
confused EPA's description of the areas where, given special 
circumstances, such tiles might be appropriate, with an EPA 
recommendation that such tile should always be used in such settings. 
This was not the Agency's intention. Therefore, the Agency is today 
clarifying its recommendation that the use of these tiles would be 
appropriate for specialty purpose uses at such locations (e.g., raised, 
open-web tiles for drainage on school kitchen flooring). Such specialty 
purpose uses involve limited flooring areas where grease, tar, snow, 
ice, wetness or similar substances or conditions are likely to be 
present. Commenters also supported the Agency in its views about the 
limitations on uses for floor tiles containing recovered materials. 
Thus, EPA is not, at this time, recommending floor tile made with 
recovered materials for standard office or more general purpose uses.
2. Structural Fiberboard and Laminated Paperboard
    In CPG I, EPA designated structural fiberboard and laminated 
paperboard products for applications other than building insulation [40 
CFR 247.12(b)]. EPA included acoustical and non-acoustical ceiling 
tiles and lay-in panels in its list of applications to which the 
designation applies. Since CPG I was issued, one manufacturer of 
mineral fiber ceiling products has expressed concern over the scope of 
the structural fiberboard and laminated paperboard designations, 
particularly as they apply to acoustical and non-acoustical ceiling 
tiles and lay-in panels.
    EPA is clarifying that the specific applications included in the 
structural fiberboard and laminated paperboard designation, i.e., 
building board, sheathing, shingle backer, sound deadening board, roof 
insulating board, insulating wallboard, acoustical and non-acoustical 
ceiling tile, acoustical and non-acoustical lay-in panels, floor 
underlayments, and roof overlay (coverboard), apply to the purchase of 
cellulosic fiber structural fiberboard and laminated paperboard 
products only. The listed applications, and therefore the designation, 
do not apply to products made from other similar or competing 
materials. In other words, if a procuring agency is purchasing a 
cellulosic fiberboard acoustical ceiling tile, then the agency should 
purchase the ceiling tile made with recovered materials. However, if 
the agency prefers to purchase a ceiling tile made with mineral fiber 
rather than fiberboard, it is free to do so. In the latter instance, 
there is no requirement to purchase a cellulosic fiberboard ceiling 
tile.

IV. Definitions

    Today, in Sec. 247.3, EPA is adding definitions for the following 
new item-specific terms: channelizers, delineators, flexible 
delineators, garden hoses, latex paint, lawn edging, pallets, parking 
stops, plastic fencing, printer ribbons, restroom dividers/partitions, 
shower dividers/partitions, and soaker hoses. These definitions are 
based on industry definitions, including ASTM or other standard 
specifications, or represent descriptions of the scope of items being 
designated.
    For several items being designated today, EPA recommends in the 
final RMAN II that procuring agencies use two-part content levels--a 
postconsumer recovered materials component and a total recovered 
materials component. In these instances, EPA found that both types of 
materials were being used to manufacture the products. Recommending 
only postconsumer content levels would be contrary to the RCRA mandate 
to maximize the use of recovered materials because it would fail to 
acknowledge the contribution to solid waste management made by 
manufacturers using other manufacturers' byproducts as feedstock.
    Because the recommendations for the items being designated today 
use the terms ``postconsumer materials'' and ``recovered materials,'' 
the definitions for these terms are repeated in this action as a 
reference for the convenience of the reader. These definitions were 
part of CPG I and can be found at 40 CFR Sec. 247.3.

    Postconsumer materials means a material or finished product that 
has served its intended end use and has been diverted or recovered 
from waste destined for disposal, having completed its life as a 
consumer item. Postconsumer material is part of the broader category 
of recovered materials.
    Recovered materials means waste materials and byproducts which 
have been recovered or diverted from solid waste, but such term does 
not include those materials and byproducts generated from, and 
commonly reused within an original manufacturing process.

V. Comment Summary and Agency's Response

    EPA received submittals from 20 commenters in response to the 
proposed CPG II and the draft RMAN II. These commenters represented 
various interests, including Federal agencies, State agencies, local 
governments, product manufacturers, and product users. A summary of the 
comments and EPA's response can be found in ``Final CPG II/RMAN II 
Background Document.''
    In this section, EPA discusses the major comments regarding the 
proposed CPG II. For a discussion of the major comments pertaining to 
the draft RMAN II, see the preamble to the notice of

[[Page 60966]]

availability of the final RMAN II, which is found in the notices 
section of today's Federal Register.

A. General Comments

1. Recordkeeping and Reporting
    Comment: A Federal agency expressed concern about the burden of 
tracking purchases of each procurement item designated by EPA and the 
potential difficulty in establishing the infrastructure to institute 
policies and procedures at a time when administrative staff is being 
reduced. The commenter further noted that the use of government credit 
cards increases the difficulty of tracking purchases. In addition, the 
commenter suggested that an interagency reporting task force convened 
by the Office of Federal Procurement Policy (OFPP) and the Office of 
the Federal Environmental Executive (OFEE) should address streamlining 
reporting requirements.
    Response: Because EPA addressed the RCRA reporting requirements in 
the CPG I rulemaking, reporting issues were not addressed as part of 
the CPG II proposal. See, for example, the background documents for the 
final CPG I and RMAN I for EPA's previous discussions of the RCRA 
annual review and reporting requirements: ``Items Designated in the 
Comprehensive Procurement Guideline--Supporting Analyses,'' pages 40-
41, and ``RMAN for Items Designated in the Comprehensive Procurement 
Guideline--Supporting Analyses,'' pages 8-9.
    The requirement that Federal procuring agencies report on their 
procurement of EPA-designated items is mandated by RCRA section 6002(g) 
and Section 301 of Executive Order 12873. Therefore, reporting is not 
at the discretion of OFEE or EPA. While EPA and OFEE are cognizant of 
the labor necessary to collect and report annual procurement data, 
neither office is authorized to significantly change the data contained 
in the final report.
    As noted by the commenter, OFEE and OFPP chartered an interagency 
steering committee to identify streamlining initiatives for the data 
collection requirements. As a result of the committee's 
recommendations, the agency data collection requirements for FY96 were 
reduced by \1/3\ by capturing data in a more efficient manner. For 
agencies that requisition CPG items from the U.S. General Services 
Administration's (GSA) Federal Supply System, the supply center tracks 
and reports on the agencies purchases. While this significantly reduces 
an agency's data collection and reporting burden, the final report 
contains the same itemized information.
2. Interaction Between RCRA Section 6002 and the Federal Acquisition 
Regulation
    Comment: A Federal agency raised issues specific to the Federal 
Acquisition Regulation (FAR), which governs Federal acquisition 
activities. The agency stated that the proposed CPG II and draft RMAN 
II did not adequately address the importance of and the responsibility 
of key non-procurement personnel, who generally develop and define a 
procuring agency's environmental needs. The agency referenced 
provisions of the FAR. Additionally, the agency stated that the draft 
RMAN II provides no specific guidance on the use of required sources, 
such as Federal Prison Industries (UNICOR) and Javits-Wagner-O'Day 
(JWOD) participating non-profit agencies.
    Response: EPA has stated on many occasions that implementation of 
RCRA section 6002 must be consistent with other Federal procurement 
law. For example, in Appendix I to ``Final CPG II/RMAN II Background 
Document,'' EPA states the following:

    The purchase of recycled products under RCRA section 6002 must 
be consistent with other Federal procurement law, which requires 
that contracts be awarded to the lowest priced, responsive, 
responsible bidder * * *
    On August 27, 1997, the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council issued an interim rule 
amending the Federal Acquisition Regulation (FAR) parts 1, 10, 11, 
13, 15, 23, 36, 42, and 52 to reflect the government's preference 
for the acquisition of environmentally-sound and energy-efficient 
products and services and to establish an affirmative procurement 
program favoring items containing the maximum practicable content of 
recovered materials. See 62 FR 44809, August 22, 1997.

    As the commenter indicated, the FAR specifies the role of 
contracting officers and other agency personnel in acquisitions, as 
well as providing for implementation of the required sources 
requirements and the RCRA section 6002 affirmative procurement 
requirements. To the extent that the FAR generally dictates use of 
certain required sources like UNICOR, EPA believes that it is 
reasonable to assume that federal procuring agencies will look to such 
sources for procurement of designated items. In fact, required sources 
such as UNICOR and the National Industries for the Blind offer several 
of the items previously designated by EPA (e.g., toner cartridges, 
recycled paper products). Therefore, EPA refers procuring agencies to 
the FAR for guidance regarding these acquisitions issues.
3. Designation of Materials
    Comment: A commenter requested that EPA designate steel in order to 
recognize that this material is recyclable, has a high recycling rate, 
and contains recovered materials.
    Response: EPA agrees that steel, like many metals, is both 
recyclable and can contain recovered materials. EPA also agrees that 
steel, like many metals, is a waste management success story in terms 
of its recyclability, high recycling rate, and recovered materials 
content. EPA also applauds the steel industry's source reduction 
efforts to produce stronger, lighter weight steel products, in response 
to customer demand.
    However, RCRA specifically requires EPA to designate products that 
are or can be made with recovered materials, not the component 
materials used in those products. Accordingly, EPA designates products 
that are manufactured with steel, but not materials, such as steel, 
that can contain recovered materials.

B. Comments on Proposed Item Designations

    No commenters opposed the designations of the following items: 
parking stops, channelizers, delineators, flexible delineators, garden 
and soaker hoses, lawn and garden edging, printer ribbons, plastic 
envelopes, and pallets. EPA is promulgating these items as proposed. 
Commenters suggested revisions to the designations of shower and 
restroom dividers, latex paint, and snow fencing, and opposed the 
proposed designation of ink jet cartridges. In response, EPA is 
designating shower and restroom dividers and latex paint, with 
modifications, and revising the designation of snow fencing to plastic 
fencing for specific uses. EPA is not designating ink jet cartridges at 
this time. The comments on shower and restroom dividers and snow 
fencing, and the significant comments pertaining to the proposed 
designations of latex paint and ink jet cartridges, as well as EPA's 
response, are discussed in the following subsections. For a full 
discussion of the comments and EPA's response, including additional 
research conducted by EPA, see ``Final CPG II/RMAN II Background 
Document.''
1. Shower and Restroom Dividers
    Comment: EPA received one comment suggesting that shower and 
restroom dividers be referred to as dividers/partitions.

[[Page 60967]]

    Response: After additional research into industry practices, EPA 
found that both of the terms--``partitions'' and ``dividers''--are 
commonly used. Generally speaking, ``partition'' implies that a door is 
used, and ``divider'' implies a dividing wall. Based on the comment and 
the additional research, EPA is revising the term for this item in the 
final CPG II and companion RMAN II to ``shower and restroom dividers/
partitions.''
2. Latex Paint
    Comment: A commenter opposed the proposed designation of latex 
paint based on concerns about performance and availability. The 
commenter further noted that the proposed designation was overly broad 
and did not reflect the variety of different latex paint applications 
in government buildings and their performance requirements. The 
commenter suggested that EPA could limit the designation and 
recommendations to interior and exterior architectural applications 
where color, consistency of performance, and durability are not primary 
concerns and a spray-gun application is not used.
    EPA met with the commenter on June 17, 1997 to discuss this and 
other comments. A copy of the meeting notes has been placed in the RCRA 
docket for the final CPG II.
    In supplemental comments, the commenter suggested that EPA 
distinguish between consolidated and reprocessed latex paints. The 
commenter suggested that EPA revise the designation so as to designate 
only:
     Consolidated latex paint used for covering graffiti, where 
consistent color and consistency of performance are not primary 
concerns.
     Reprocessed latex paint used for interior and exterior 
architectural applications where the reprocessed latex paint meets all 
end use specifications (e.g., color, weathering, durability, hiding 
power, and applicability) for a particular application.
    These suggestions are similar to the applications for reprocessed 
and consolidated latex paints that EPA had recommended in the draft 
RMAN II.
    The commenter stated that adding the language about end use 
specifications in the suggested designation would alleviate paint 
industry concerns that the listing of latex paints will require the use 
of reprocessed latex paints for all interior and exterior uses without 
regard to any performance criteria. The commenter further stated that 
the selection of latex paint for a particular application is a complex 
process and that, while the GSA specification for ``recycled'' latex 
paint covers certain performance attributes, it may not include all of 
the attributes necessary for a particular application. The commenter 
referenced three ASTM latex paint specifications that the commenter 
believes procuring agencies should consider in evaluating whether 
reprocessed latex paint has the appropriate performance attributes for 
a particular application. A copy of the supplemental comments is 
included in the docket for the final CPG II.
    Response: EPA agrees that reprocessed and consolidated latex paints 
are not suitable for all applications. In the proposed CPG II, EPA 
noted, for example, that there is little available information on the 
performance of reprocessed or consolidated paints for non-architectural 
applications. See 61 FR 57752. In the draft RMAN II, EPA recommended 
the use of consolidated paint in limited applications, such as covering 
graffiti, where color and consistency of performance are not primary 
concerns. EPA recommended the use of reprocessed paint for interior and 
exterior architectural applications. See Section C-7 of the draft RMAN 
II at 61 FR 57763.
    In researching latex paint for the proposed CPG II, EPA identified 
a latex paint study by the California Polytechnic University (CalPoly). 
The CalPoly study included testing of reprocessed and consolidated 
latex paints for various key parameters that measure the performance 
and durability of paint for a number of different applications. The 
CalPoly study concluded that reprocessed paints are suitable for these 
applications reviewed in the study. A copy of this study was included 
in the docket for the proposed CPG II and draft RMAN II, docket F-96-
CP2P-FFFFF. Both the GSA's Engineering and Commodity Management 
Division and CalPoly found that latex paints containing postconsumer 
materials can be manufactured to provide consistent performance, normal 
coverage and hiding of the underlying surface, and durability. In 
addition, the GSA specification provides for testing of color and 
application properties, among other requirements.
    Latex paints containing postconsumer materials also can be 
formulated to be used in spray-guns. According to paint manufacturers 
and municipalities contacted by EPA, spray applications of reprocessed 
latex paint pose few, if any, problems as long as the paint is clean 
and has been filtered properly. EPA notes, however, that some users 
have encountered problems with clogged spray nozzles, and one 
manufacturer recommends using a larger diameter spray tip to ensure 
that the nozzle will not become clogged. GSA specification TT-P-2846 
requires that the reprocessed and consolidated latex paint meet 
specified brushing, roller coating, and spraying properties, which 
should ensure that manufacturers properly filter their products.
    EPA also conducted additional research into the applications for 
which agencies currently are using reprocessed latex paints. EPA found 
that agencies currently are using reprocessed paints for the same uses 
for which they would normally use latex paint--e.g., interior and 
exterior wallboard, ceilings, and trim; exterior gutter boards; and 
concrete, stucco, masonry, and wood, as well as metal surfaces.
    After considering the comments and conducting further research on 
reprocessed latex applications, EPA has concluded that the proposed 
designation of ``latex paint'' is too broad given the uses for which 
consolidated and reprocessed latex paints currently are available. As 
discussed above in Section III.A, EPA sometimes designates broad 
category items and provides information in the RMAN as to their 
appropriate applications or uses. In other instances, EPA designates 
specific items and might include in the designation the specific types 
of applications to which the designation applies. The approach that EPA 
uses depends on the whether items manufactured from other types of 
materials or for other applications are made with or could contain 
recovered materials. In the past, if EPA was not aware that items used 
for other applications were available, EPA limited its designations so 
as not to create an unnecessary burden on agencies to try to purchase 
an item that is not available. (See the preamble to CPG I, 60 FR 21373, 
May 1, 1995, for a more detailed discussion of EPA's approach.)
    Based on the available information, EPA has concluded that 
consolidated latex paints are currently used for graffiti abatement. 
EPA further has determined that reprocessed latex paints are available 
for architectural applications, but not for non-architectural 
applications, such as marking pavements or athletic fields. EPA also 
agrees with the commenter that reprocessed latex paints may not be 
available for all architectural performance needs.
    Therefore, to avoid confusion by procuring agencies about the scope 
of the latex paint designation, EPA has

[[Page 60968]]

concluded that it is preferable to limit the scope of the latex paint 
designation, rather than designating the broad category ``latex 
paint,'' and recommending specific applications for using consolidated 
and reprocessed latex paints in RMAN II. A narrower designation will 
enable procuring agencies to focus their procurement efforts on the 
types of latex paint currently available either through GSA or directly 
from paint manufacturers.
    Therefore, in today's final CPG II, EPA is revising the broad 
``latex paint'' designation to provide the following specific 
designations:
     Consolidated latex paint used for covering graffiti.
     Reprocessed latex paint used for interior and exterior 
architectural applications such as wallboard, ceilings, and trim; 
gutter boards; and concrete, stucco, masonry, wood, and metal surfaces.
    Under this revised designation, procuring agencies must purchase 
reprocessed latex paint for the interior and exterior architectural 
applications for which they would ordinarily use latex paint, such as 
wallboard, concrete, stucco, masonry, wood, and metal. Procuring 
agencies requiring a latex paint not meeting GSA's general ``recycled'' 
latex paint specification should determine whether a latex paint 
containing recovered materials is available and if not, may use a latex 
paint not containing recovered materials for that particular 
application.
    As discussed in section III.B above, RCRA section 6002 provides 
that a procuring agency is not required to purchase an EPA-designated 
item containing recovered materials if that item is not reasonably 
available or fails to meet the reasonable performance standards set 
forth in the agency's specifications. Thus, if an agency has a 
particular need (e.g., color, weathering, durability, hiding power) for 
a particular application, and consolidated or reprocessed latex paint 
is not available (or does not meet that specification), the agency may 
purchase a latex paint not containing recovered materials. Given the 
obligation of procuring agencies to procure designated items with the 
highest percentage of recovered materials practicable, an agency should 
thoroughly research the availability of consolidated or reprocessed 
latex paint meeting its specifications.
    However, because RCRA provides for performance exceptions to the 
requirement to purchase EPA-designated items containing recovered 
materials, it would be redundant for EPA to include performance 
considerations in the description of the designation of consolidated 
and reprocessed latex paints. For this reason, in the final 
designations published today, EPA has not included the language about 
end use specifications suggested by the commenter.
    Comment: The commenter also had noted that an Army Corps of 
Engineers study of reprocessed and consolidated latex paints had not 
yet been completed. The commenter stated that it was therefore 
premature for EPA to designate latex paints.
    Response: EPA noted in the background document for the proposed CPG 
II that the Paint Technology Center at the U.S. Army Construction 
Engineering Research Laboratories (USACERL) was planning to test the 
performance of latex paint containing postconsumer materials. See page 
28, ``Comprehensive Procurement Guideline (CPG) II--Supporting 
Analyses,'' August 1, 1996. EPA contacted USACERL about the study of 
reprocessed latex paint. USACERL informed EPA that it does not have any 
specific concerns about the performance qualities of reprocessed latex 
paint in different applications. Rather, USACERL tested reprocessed 
latex paints to confirm that they met GSA specification TT-P-2846 for 
``recycled'' latex paints. USACERL also tested reprocessed latex paints 
against the GSA specifications for interior and exterior latex paints. 
To date, USACERL found that the reprocessed paints tested met the 
specifications for recycled latex paint and interior latex paints. 
USACERL is completing testing against the exterior paint specification, 
but the reprocessed latex paints performed well against the exterior 
paint tests conducted to date. Based on this information about the 
results of the USACERL testing of reprocessed and consolidated latex 
paints, EPA does not believe that the designation of latex paint should 
be delayed pending the final outcome of the USACERL study.
    Further, USACERL informed EPA that the Army uses acrylic latex 
paints to paint primed metal and expressed concern only about the 
availability of reprocessed latex paint containing 100% acrylic. 
USACERL had not researched the availability of this item, however. EPA 
notes that under RCRA section 6002, a procuring agency is not required 
to purchase an EPA-designated item containing recovered materials if 
that item does not meet the agency's reasonable performance standards 
or if the item is not reasonably available. If the Army requires 
acrylic latex paints for a particular application and this item is not 
available containing recovered materials, then the Army is not required 
to purchase latex paint containing recovered materials for that 
application. For such situations, EPA has previously recommended that 
agencies place a statement in their affirmative procurement programs 
indicating that the item is not available.
    Because the purpose of the government buy-recycled program is to 
develop markets for recovered materials, EPA is reluctant to exclude 
acrylic latex paints from the scope of the latex paint designation. 
Rather, EPA believes that the Army should determine periodically 
whether acrylic latex paints containing recovered materials are 
available in order to encourage the recovery of this type of paint from 
the waste stream. Further, EPA notes that during development of CPG II, 
neither the Army nor any other Federal agency requested that EPA limit 
the scope of the designation. Therefore, in the final CPG II, EPA is 
designating latex paints and not excluding acrylic latex paints.
    Comment: The commenter further stated that EPA had failed to 
examine the true costs of using reprocessed latex paint because it is 
``likely'' that more coats of reprocessed paint would be required and 
``it seems likely that'' more frequent repainting will be required 
where reprocessed latex paint is used. The commenter provided no 
documentation to support these comments.
    Response: The information available to EPA from research, product 
testing by CalPoly, and users indicates that reprocessed latex paints 
cover the same as virgin latex paints and do not require more frequent 
repainting. This information is included in the record for this 
rulemaking. According to the CalPoly research report and additional 
research conducted by EPA, reprocessed and consolidated paints meet 
specifications for sag resistance (a measure of a paint's tendency to 
run on a vertical surface), contrast ratios (ability to hide the 
underlying surface), and scrub resistance (an indication of the 
resistance of a paint film to repeated washing or scrubbing). None of 
the users contacted by EPA had experienced problems with paint coverage 
or durability. Based on this testing and use information, EPA believes 
that procuring agencies will not incur additional costs from extra or 
more frequent coats of paint.
    Comment: The commenter also noted that reprocessed and consolidated 
latex paints are not universally available in the United States.
    Response: EPA has never limited its designations only to items that 
are

[[Page 60969]]

``universally'' available or immediately available in every part of the 
United States. Because the purpose of the federal buy-recycled program 
is to develop markets for, and spur development of, products containing 
recovered materials, it has always been understood that these items 
might not be available to all procuring agencies in all instances. Nor 
does RCRA specify universal availability as a criteria for EPA to 
consider when designating items. Rather, it is expected that, as 
procuring agencies seek to purchase products containing recovered 
materials, these items will become more widely and universally 
available. For this reason, RCRA section 6002 provides that procuring 
agencies are not required to buy an EPA-designated item containing 
recovered materials if that item is not available within a reasonable 
time.
    EPA explicitly recognized this early in its development of the 
guidelines program. Thus, for example, in the first procurement 
guideline issued in 1983, EPA designated cement and concrete containing 
coal fly ash, even though coal fly ash was not available in every part 
of the country. EPA recommended that agencies provide incentives for 
greater availability by allowing for the use of coal fly ash as an 
optional or alternate material. EPA stated that ``[a]llowing fly ash 
will also serve as an incentive to potential users in that area. 
Contractors will not make the commitment necessary to use fly ash 
unless it is more readily accepted. Including it in bid solicitations 
and allowing it to be used provides this incentive.'' See 48 FR 4242, 
January 28, 1983.
3. Snow Fencing
    Comment: GSA recommended that EPA revise the definition of ``snow 
fencing'' by adding ``and to delineate construction areas.''
    Response: EPA reviewed its research into snow fencing and found 
that plastic fencing containing recovered materials can be used for 
several applications, including control of drifting snow and sand and 
as a warning or safety barrier at construction areas. Plastic fencing 
used in these applications is called many names--snow fencing, 
temporary fencing, beach or dune fencing, warning barrier, and safety 
barrier. While ``snow fencing'' is a commonly used term, EPA agrees 
with GSA that using this term alone can mislead procuring agencies 
about the scope of EPA's designation. Therefore, in Sec. 247.14(b) of 
today's final CPG II, EPA is revising the designation of ``snow 
fencing'' as follows: plastic fencing containing recovered plastic for 
use in controlling snow or sand drifting and as a warning/safety 
barrier in construction or other applications. EPA also is changing the 
term ``snow fencing'' to ``plastic fencing'' in the definitions and 
adding the phrase ``and to provide a warning or barrier in construction 
and other areas'' to the definition.
4. Ink Jet Cartridges
    Commenters raised a number of concerns in opposing the proposed 
designation of ink jet cartridges. These comments raised solid waste, 
performance, quality, availability, and patent and trademark concerns. 
After considering the information submitted by commenters, EPA has 
concluded that there is insufficient evidence to support a designation 
of ink jet cartridges at this time. On April 14, 1997, EPA published a 
Notice of Data Availability in the Federal Register (62 FR 18072) to 
notify interested parties of the tentative decision not to designate 
ink jet cartridges, summarize the information available to the Agency, 
and request further public comment.
    EPA received only two responses to the April 14 notice--one from a 
vendor of ink jet refilling equipment and additional information from 
one of the original commenters. The vendor appears to have promising 
technology for resolving many of the performance and solid waste issues 
raised by commenters. The vendor did not, however, submit sufficient 
information to change EPA's earlier conclusion that there is 
insufficient information to support designating ink jet cartridges at 
this time. In particular, the commenter did not address the lack of 
industry quality and performance standards. Therefore, EPA has decided 
not to designate ink jet cartridges in today's final CPG II. EPA also 
is deleting the recommendations for purchasing ink jet cartridges from 
the final RMAN II published in the notice section of today's Federal 
Register. EPA will continue to monitor developments in ink jet 
cartridge and refilling/remanufacturing technology and will consider 
designating ink jet cartridges in the future.

C. Comments on Other Items Considered for Designation

    In the background document for the proposed CPG II, EPA stated that 
it had considered the following 12 items and determined that it was 
inappropriate to designate them: lead-acid batteries, water retention 
systems, flat sheet glass, wall covering, ceramic and glass tile, glass 
fiber-reinforced concrete, curbing, dock bumpers, glass beads for 
reflective paint, magazine boxes, rulers, and pallet stretch wrap. EPA 
requested additional information demonstrating that the items should be 
reconsidered for possible future designation. No comments were 
submitted on these items or on EPA's decision not to designate them. 
Therefore, EPA is no longer considering these items for future 
designation in the CPG.

D. Comments on Public Participation Process

    On September 20, 1995, EPA issued a notice in the Federal Register 
explaining the procedures for interested persons to (1) suggest items 
for EPA to consider for designation in future updates to the CPG and 
(2) provide information for EPA to use in developing or revising its 
recommendations for recovered materials content levels contained in the 
RMANs that accompany the CPG updates (60 FR 48714). EPA stated that it 
would issue annual notices to request additional information from 
interested persons.
    No comments were received on these procedures, and EPA plans to 
continue to use them. Over 30 commenters submitted information on items 
for EPA to consider. Some of these comments provided supporting 
information for items designated in today's CPG II. EPA currently is 
evaluating the other items for potential designation in future CPG 
updates. Because EPA is still considering these items, we will not be 
issuing annual notices requesting additional suggestions and 
information. However, persons wishing to submit information for EPA to 
consider may send it to: Buy Recycled Program, U.S. Environmental 
Protection Agency, 5306W, 401 M Street, SW., Washington, DC 20460. Any 
submittals should address the seven areas listed in the September 20, 
1995 Federal Register notice. See 60 FR 48715.

VI. Availability of Designated Items

    EPA has developed lists of manufacturers and vendors of the items 
designated in today's rule. In addition, EPA has updated the lists of 
manufacturers and vendors of the 24 items designated in the original 
CPG. These lists have been placed in the RCRA docket for this action 
and will be updated periodically as new sources are identified and 
product information changes. These lists will also be available through 
EPA's web site on the Internet. (See section VIII below for Internet 
access information.) Procuring agencies should contact the 
manufacturers/vendors directly to discuss their specific needs and to

[[Page 60970]]

obtain detailed information on the availability and price of recycled 
products meeting those needs.
    Other information is available from the GSA, the Defense Logistics 
Agency (DLA), State and local recycling offices, private corporations, 
and trade associations. Refer to Section XV of the document, ``Final 
CPG II/RMAN II Background Document'' for more detailed information on 
these other sources of information.
    State and local recycling programs are also a potential source of 
information on local distributors and availability. In addition, state 
and local government purchasing officials that are contracting for 
recycled content products may have relative price information. A 
current list of state purchasing/procurement officials has been placed 
in the docket for the final CPG II. Also included in the public docket 
is a list of states with recycled content products purchasing programs, 
current as of April 1994. Information is also available from trade 
associations whose members manufacture or distribute products 
containing recovered materials. These trade associations are included 
in the updated lists of product manufacturers and vendors described 
above.
    Additionally, Environmental Newsletters, Inc., publisher of Waste 
Reduction Tips, prepared a directory of recycled product directories. 
EPA has placed the ``1996 Directory of Recycled Product Directories,'' 
from Environmental Newsletters' Recycled Products Business Letter, in 
the public docket for the final CPG II. Environmental Newsletters, Inc. 
can be reached at 703 758-8436 for further information.
    Finally, EPA is considering mechanisms to increase the electronic 
dissemination of information about the items designated in the CPG, 
such as a buy-recycled home page on the Internet. If the Agency decides 
to implement such mechanisms, we will provide public notice in the 
Federal Register in concert with future revisions to the CPG.

VII. Economic Impact Analysis

A. Requirements of Executive Order 12866

    Executive Order 12866 requires agencies to determine whether a 
regulatory action is ``significant.'' The Order defines a 
``significant'' regulatory action as one that is likely to result in a 
rule that may: (1) have an annual effect on the economy of $100 million 
or more or adversely affect, in a material way, the economy, a sector 
of the economy, productivity, competition, jobs, the environment, 
public health or safety, or State, local, or tribal governments or 
communities; (2) create serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients; or (4) raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    EPA estimates that the costs associated with today's rule is well 
below the $100 million threshold. To enable the Agency to evaluate the 
potential impact of today's action, EPA has prepared an Economic Impact 
Analysis (EIA), as discussed below. For more information on the 
estimated economic impact of today's rule, see the ``Economic Impact 
Analysis for the Final Comprehensive Procurement Guideline II.''
1. Summary of Costs
    EPA estimated that the annualized costs of the proposed rule to 
designate 13 items would fall in the range of $4.8 to $8.7 million. 
Because today's final rule designates 12 items, rather than 13 items, 
EPA revised the economic impact analysis to reflect the fact that fewer 
items are being designated than originally proposed.
    As shown in Table 2 below, EPA estimates that the annualized costs 
of today's rule will range from $4.5 to $8.4 million, with costs being 
spread across all procuring agencies (i.e., Federal agencies, State and 
local agencies that use appropriated Federal funds to procure 
designated items, and government contractors). These costs are 
annualized over a 10-year period at a three percent discount rate. 
Because there is considerable uncertainty regarding several of the 
parameters that drive the costs, EPA conducted sensitivity analyses to 
identify the range of potential costs of today's rule. Thus, high-end 
and low-end estimates are presented along with the best estimate. The 
primary parameter affecting the range of cost estimates is the number 
of products each procuring agency is assumed to procure each year. 
Details of the costs associated with today's final rule are provided in 
the Economic Impact Analysis for this rule.

    Table 2.--Summary of Annualized Costs of CPG II Amendments to All   
                           Procuring Agencies                           
------------------------------------------------------------------------
                                                           Best estimate
                                               Total           total    
            Procuring agency                annualized      annualized  
                                           costs ($1000)   costs ($1000)
------------------------------------------------------------------------
Federal Agencies........................     5,008-2,584           5,008
States..................................         926-520             926
Local Governments.......................     2,337-1,324           1,700
Contractors.............................           81-27              54
Total...................................     8,352-4,455           8,352
------------------------------------------------------------------------

    As a result of today's action, procuring agencies will be required 
to perform certain activities pursuant to RCRA section 6002, including 
rule review and implementation; estimation, certification, and 
verification of designated item procurement; and for Federal agencies, 
reporting and recordkeeping. The costs shown in Table 2 represent the 
estimated annualized costs associated with these activities. Table 2 
also includes estimates for Federal agencies that will incur costs for 
specification revisions and affirmative procurement program 
modification. More details of the costs associated with today's rule 
are included in the Economic Impact Analysis.
    With regard to possible impacts to business, including small 
businesses, there may be both positive and negative impacts to 
individual businesses. EPA anticipates that today's final rule will 
provide additional opportunities for recycling businesses to begin 
supplying recovered materials to manufacturers and products made from 
recovered materials to procuring agencies. In addition, other 
businesses, including small businesses, that do not directly contract 
with procuring agencies may be affected positively by the increased

[[Page 60971]]

demand for recovered materials. These include businesses involved in 
materials recovery programs and materials recycling. Municipalities 
that run recycling programs are also expected to benefit from increased 
demand for certain materials recovered from municipal solid waste.
    EPA is unable to determine the number of businesses, including 
small businesses, that may be adversely impacted by today's final rule. 
It is possible that if a business that currently supplies products to a 
procuring agency uses virgin materials only, the amendments to the CPG 
may reduce its ability to compete for future contracts. However, the 
amendments to the CPG will not affect existing purchase orders, nor 
will it preclude businesses from adapting their product lines to meet 
new specifications or solicitation requirements for products containing 
recovered materials. Thus, many businesses, including small businesses, 
that market to procuring agencies have the option to adapt their 
product lines to meet specifications.
2. Product Cost
    Another potential cost of today's action is the possible price 
differential between an item made with recovered materials and an 
equivalent item manufactured using virgin materials. The relative 
prices of recycled content products compared to prices of comparable 
virgin products vary. In many cases, recycled content products are less 
expensive than their virgin counterparts. In other cases, virgin 
products have lower prices than recycled content products. Many factors 
can affect the price of various products. For example, temporary 
fluctuations in the overall economy can create oversupplies of virgin 
products, leading to a decrease in prices for these items. Under RCRA 
section 6002(c), procuring agencies are not required to purchase a 
product containing recovered materials if it is only available at an 
unreasonable price. However, the decision to pay more or less for such 
a product is left to the procuring agency.
3. Summary of Benefits
    EPA anticipates that today's final rule will result in increased 
opportunities for recycling and waste prevention (e.g., from reinking 
ribbons or repairing pallets). Waste prevention can reduce the nation's 
reliance on natural resources by reducing the amount of materials used 
in making products. Less raw materials use results in a commensurate 
reduction in energy use and a reduction in the generation and release 
of air and water pollutants associated with manufacturing. 
Additionally, waste prevention leads to a reduction in the 
environmental impacts of mining, harvesting, and other extraction 
processes.
    Recycling can effect the more efficient use of natural resources. 
For many products, the use of recovered materials in manufacturing can 
result in significantly lower energy and material input costs than when 
virgin raw materials are used; reduce the generation and release of air 
and water pollutants often associated with manufacturing; and reduce 
the environmental impacts of mining, harvesting, and other extraction 
of natural resources. For example, according to information published 
by the Steel Recycling Institute, recycling one ton of steel saves 
nearly 11 million Btus of energy; 2,500 lbs. of ore; 1,000 lbs. of 
coal; and 40 lbs. of limestone. Recycling can also reduce greenhouse 
gas emissions associated with manufacturing new products. When compared 
to landfilling, recycling one ton of high density polyethylene, low 
density polyethylene, or polyethylene terephthalate plastic can reduce 
greenhouse gas emissions by up to 0.64 metric tons of carbon equivalent 
(MTCE). In addition to conserving non-renewable resources and reducing 
the environmental impacts associated with resource extraction and 
processing, recycling can also divert large amounts of materials from 
landfills, conserving increasingly valuable space for the management of 
materials that truly require disposal.
    By purchasing products made from recovered materials, government 
agencies can increase opportunities for realizing these benefits. On a 
national and regional level, today's final rule can result in expanding 
and strengthening markets for materials diverted or recovered through 
public and private collection programs. Also, since many State and 
local governments, as well as private companies, reference EPA 
guidelines when purchasing designated items, this rule can result in 
increased purchase of recycled products, locally, regionally, and 
nationally and provide opportunities for businesses engaged in 
recycling activities.

B. Unfunded Mandates Reform Act of 1995 and Consultation with State, 
Local, and Tribal Governments

    Under section 202 of the Unfunded Mandates Reform Act of 1995 (the 
Act), P.L. 104-4, which was signed into law on March 22, 1995, EPA 
generally must prepare a written statement for rules with Federal 
mandates that may result in estimated costs to State, local, or tribal 
governments in the aggregate, or to the private sector, of $100 million 
or more in any one year. When such a statement is required for EPA 
rules, under section 205 of the Act EPA must identify and consider 
alternatives, including the least costly, most cost-effective or least 
burdensome alternative that achieves the objectives of the rule. EPA 
must select that alternative, unless the Administrator explains in the 
final rule why it was not selected or it is inconsistent with law. 
Before EPA establishes regulatory requirements that may significantly 
or uniquely affect small governments, including tribal governments, it 
must develop under section 203 of the Act a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, giving them meaningful and timely input in the development 
of EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising them on compliance 
with the regulatory requirements.
    EPA has determined that today's final rule does not include a 
Federal mandate that may result in estimated annualized costs of $100 
million or more to either State or local governments in the aggregate, 
or to the private sector. To the extent enforceable duties arise as a 
result of this rule on State and local governments, they are exempt 
from inclusion as Federal inter-governmental mandates if such duties 
are conditions of Federal assistance. Even if they are not conditions 
of Federal assistance, such enforceable duties do not result in a 
significant regulatory action being imposed upon State and local 
governments since the estimated aggregate cost of compliance for them 
are not expected to exceed, at the maximum, $2.6 million annually. The 
cost of enforceable duties which may arise as a result of today's rule 
on the private sector are estimated not to exceed $54,000 annually. 
Thus, today's rule is not subject to the written statement requirement 
in sections 202 and 205 of the Act.
    The newly designated items included in the CPG may give rise to 
additional obligations under section 6002(i) (requiring procuring 
agencies to adopt affirmative procurement program and to amend their 
specifications) for state and local governments. As noted above, the 
expense associated with any additional costs is not expected to exceed, 
at the maximum, $2.6 million annually. In compliance with E.O. 12875, 
which requires the involvement of State and local governments in the 
development of certain Federal regulatory actions,

[[Page 60972]]

EPA conducts a wide outreach effort and actively seeks the input of 
representatives of state and local governments in the process of 
developing its guidelines.
    When EPA proposes to designate items in the CPG, information about 
the proposal is distributed to governmental organizations so that they 
can inform their members about the proposals and solicit their 
comments. These organizations include the U.S. Conference of Mayors, 
the National Association of Counties, the National Association of Towns 
and Townships, the National Association of State Purchasing Officials, 
and the American Association of State Highway and Transportation 
Officials. EPA also provides information to potentially affected 
entities through relevant recycling, solid waste, environmental, and 
industry publications. In addition, EPA's regional offices sponsor and 
participate in regional and state meetings at which information about 
proposed and final designations of items in the CPG is presented. 
Finally, EPA has sponsored buy-recycled education and outreach 
activities by organizations such as the U.S. Conference of Mayors, the 
Northeast Recycling Council, the Environmental Defense Fund, Keep 
America Beautiful, and the California Local Government Commission, 
whose target audience includes small governmental entities.
    The requirements do not significantly affect small governments 
because they are subject to the same requirements as other entities 
whose duties result from today's rule. As discussed above, the expense 
associated with any additional costs to State and local governments, is 
not expected to exceed, at the maximum, $2.6 million annually. The 
requirements do not uniquely affect small governments because they have 
the same ability to purchase these designated items as other entities 
whose duties result from today's rule. Additionally, use of designated 
items affects small governments in the same manner as other such 
entities. Thus, any applicable requirements of section 203 have been 
satisfied.

C. Impacted Entities

    RCRA section 6002 applies to procuring agencies that use at least a 
portion of Federal funds to procure over $10,000 worth of a designated 
product in a given year. EPA estimates that this rule would apply to 35 
Federal agencies, all 56 states and territories and 1,900 local 
governments. EPA calculated the number of local entities that would be 
impacted based on information regarding the amount of Federal funds 
that are dispersed to specific counties. In addition, EPA assumed that 
1,000 contractors may be affected. A description of this information is 
provided in the Economic Impact Analysis for today's rule.

D. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act, 
provides that, whenever an agency promulgates a final rule under 5 
U.S.C. 553, after being required by that section or any other law to 
public a general notice of proposed rulemaking, the agency must prepare 
a final regulatory flexibility analysis (FRFA). The agency must prepare 
an FRFA for a final rule unless the head of the agency certifies that 
it will not have a significant economic impact on a substantial number 
of small entities. The Administrator is today certifying, pursuant to 
section 605(b) of the RFA, that the final rule will not have a 
significant economic impact on a substantial number of small entities. 
Therefore, the Agency did not prepare an FRFA.
    The final rule will not have a significant economic impact on a 
substantial number of small entities for the following reasons. The RFA 
defines ``small entity'' to mean a small business, small organization 
or small governmental jurisdiction. EPA's action today in designating 
12 new items that are or may be produced with recovered materials 
content may establish requirements applicable, in some cases, to small 
governmental jurisdictions and small businesses.
    In the case of small entities which are small governmental 
jurisdictions, EPA has concluded that the rule will not have a 
significant economic impact. EPA concluded that no small government 
with a population of less than 50,000 is likely to incur costs 
associated with the designation of the 12 items because it is 
improbable that such jurisdictions will purchase more than $10,000 of 
any designated item. Consequently, section 6002 would not apply to 
their purchases of designated items. Moreover, there is no evidence 
that complying with the requirements of section 6002 would impose 
significant additional costs on the small governmental entity to comply 
in the event that a small governmental jurisdiction purchased more than 
$10,000 worth of a designated item. This is the case because in many 
instances items with recovered materials content may be less expensive 
than items produced from virgin material.
    Similarly, EPA has concluded that the economic impact on small 
entities that are small businesses would not be significant. The CPG 
applies to small businesses that are ``procuring agencies.'' The 
potential economic impact of the CPG on small businesses that are 
``procuring agencies'' is minimal.
    RCRA section 6002 applies to a contractor with a Federal agency (or 
a state or local agency that is a procuring agency under Section 6002) 
when the contractor is purchasing a designated item, is using Federal 
money to do so, and exceeds the $10,000 threshold. There is an 
exception for purchases that are ``incidental to'' the purposes of the 
contract, i.e., not the direct result of the funds disbursement. For 
example, a courier service contractor is not required to purchase re-
refined oil and retread tires for its fleets because purchases of these 
items are incidental to the purpose of the contract. Therefore, as a 
practical matter, there would be very limited circumstances when a 
contractor's status as a ``procuring agency'' for section 6002 purposes 
would impose additional costs on the contractor. Thus, for example, if 
the State or Federal agency is contracting with a supplier to obtain a 
designated item, then the cost of the designated item (and any 
associated costs of meeting section 6002 requirements) to the supplier 
presumably will be fully recovered in the contract price. Any costs to 
small businesses that are ``procuring agencies'' (and subject to 
section 6002) are likely to be insubstantial. Even if a small business 
is required to purchase other items with recovered materials content, 
such items may be less expensive than items with virgin content.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C. 
Sec. 605(b), I hereby certify that today's designations will not have a 
significant economic impact on a substantial number of small entities. 
Because today's action does not impose significant new burdens on small 
entities, this rule does not require a final regulatory flexibility 
analysis.
    The basis for EPA's conclusions that today's rule will not have a 
significant impact on a substantial number of small entities is 
described in greater detail in the ``Economic Impact Analysis'' for the 
rule which is located in the RCRA public docket.

[[Page 60973]]

    While not a factor relevant to determining whether the rule will 
have a significant impact for RFA purposes, EPA believes that the 
effect of today's rule would be to provide positive opportunities to 
businesses engaged in recycling and the manufacture of recycled 
products. Purchase and use of recycled products by procuring agencies 
increase demand for these products and result in private sector 
development of new technologies, creating business and employment 
opportunities that enhance local, regional, and national economies. 
Technological innovation associated with the use of recovered materials 
can translate into economic growth and increased industry 
competitiveness worldwide, thereby, creating opportunities for small 
entities.

VIII. Supporting Information and Accessing Internet

    The index of supporting materials for today's final CPG II is 
available in the RCRA Information Center (RIC) and on the Internet. The 
address and telephone number of the RIC are provided in ADDRESSES 
above. The index and the following supporting materials are available 
in the RIC and on the Internet:
    ``Final CPG II/RMAN II Background Document,'' U.S. EPA, Office of 
Solid Waste and Emergency Response, September 1997.
    Copies of the following supporting materials are available for 
viewing at the RIC only:
    ``Economic Impact Analysis for the Final Comprehensive Procurement 
Guideline II,'' U.S. Environmental Protection Agency, August 1997.
    ``Ex Parte Meeting Notes, Meeting Between U.S. Environmental 
Protection Agency and National Paint & Coatings Association, June 17, 
1997.''
    ``Letter to Dana F. Arnold, U.S. Environmental Protection Agency, 
from National Paint & Coatings Association, July 28, 1997.''
    ``Telephone Notes, Testing of Reprocessed/consolidated Latex Paint, 
Between Dana Arnold, U.S. Environmental Protection Agency and Sue 
Drozdz, Army Corps of Engineers, May 19, 1997.''
    ``National Association of State Purchasing Officials, 1996-1997 
Membership Roster.''
    Follow these instructions to access the information electronically:

WWW: http://www.epa.gov/epaoswer/non-hw/index.htm#procure.
FTP: ftp.epa/gov
Login: anonymous
Password: your Internet address
Files are located in /pub/epaoswer.

IX. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
containing this rule and other required information to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 247

    Environmental protection, Channelizers, Consolidated latex paint, 
Construction products, Delineators, Flexible delineators, Garden hose, 
Garden edging, Government procurement, Laminated paperboard, 
Landscaping products, Latex paint, Lawn edging, Office products, 
Pallets, Park and recreation products, Parking stops, Plastic fencing, 
Printer ribbons, Procurement guidelines, Recycling, Reprocessed latex 
paint, Restroom dividers/partitions, Shower dividers/partitions, Soaker 
hose, Structural fiberboard, Temporary traffic control devices, 
Transportation products.

    Dated: October 8, 1997.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40 , chapter I of 
the Code of Federal Regulations, part 247, is amended as set forth 
below.

PART 247--COMPREHENSIVE PROCUREMENT GUIDELINE FOR PRODUCTS 
CONTAINING RECOVERED MATERIALS

    1. The authority citation for part 247 continues to read as 
follows:

    Authority: 24 U.S.C. 6912(a) and 6962; E.O. 12873, 58 FR 54911.

    2. In Sec. 247.2, paragraph (d) is added to read as follows:


Sec. 247.2  Applicability.

* * * * *
    (d) RCRA section 6002(c)(1) requires procuring agencies to procure 
designated items composed of the highest percentage of recovered 
materials practicable, consistent with maintaining a satisfactory level 
of competition, considering such guidelines. Procuring agencies may 
decide not to procure such items if they are not reasonably available 
in a reasonable period of time; fail to meet reasonable performance 
standards; or are only available at an unreasonable price.
    3. In Sec. 247.3, the following definitions are added 
alphabetically:


Sec. 247.3  Definitions.

* * * * *
    Channelizers means highly visible barrels or drums that can be 
positioned to direct traffic through detours;
    Delineator means a highly visible pavement marker that can be 
positioned to direct traffic or define boundaries;
* * * * *
    Flexible delineator means a highly visible marker that can be 
positioned to direct traffic or define boundaries and that will flex if 
struck by a vehicle to prevent damage to the vehicle or the delineator;
* * * * *
    Garden hose means a flexible tubing that conducts water to a 
specific location;
* * * * *
    Latex paint means a water-based decorative or protective covering 
having a latex binder;
    Lawn edging means a barrier used between lawns and landscaped areas 
or garden beds to prevent grass roots or weeds from spreading to the 
landscaped areas;
* * * * *
    Pallet means a portable platform for storing or moving cargo or 
freight;
* * * * *
    Parking stop means a barrier used to mark parking spaces and keep 
parked vehicles from rolling beyond a designated parking area;
* * * * *
    Plastic fencing means a barrier with an open-weave pattern that can 
be used to control drifting snow or sand by restricting the force of 
wind and to provide a warning or barrier in construction and other 
areas;
* * * * *
    Printer ribbon means a nylon fabric designed to hold ink and used 
in dot matrix and other types of impact printers;
* * * * *
    Restroom divider/partition means a barrier used to provide privacy 
in public restroom facilities;
* * * * *
    Shower divider/partition means a water-proof barrier used to 
provide privacy in public shower facilities;
    Soaker hose means a perforated flexible tubing that is used to 
deliver gentle irrigation to plants;
* * * * *
    4. Section 247.12 is amended by adding new paragraphs (f) and (g) 
to read as follows:

[[Page 60974]]

Sec. 247.12  Construction products.

* * * * *
    (f) Shower and restroom dividers/partitions containing recovered 
plastic or steel.
    (g)(1) Consolidated latex paint used for covering graffiti; and
    (2) Reprocessed latex paint used for interior and exterior 
architectural applications such as wallboard, ceilings, and trim; 
gutter boards; and concrete, stucco, masonry, wood, and metal surfaces.
    5. Section 247.13 is amended by redesignating the existing text as 
paragraph (a) and by adding new paragraphs (b), (c), (d), and (e) to 
read as follows:


Sec. 247.13  Transportation products.

* * * * *
    (b) Parking stops made from concrete or containing recovered 
plastic or rubber.
    (c) Channelizers containing recovered plastic or rubber.
    (d) Delineators containing recovered plastic, rubber, or steel.
    (e) Flexible delineators containing recovered plastic.
    6. Section 247.14 is amended by redesignating the existing text as 
paragraph (a) and by adding a new paragraph (b) to read as follows:


Sec. 247.14  Park and recreation products.

* * * * *
    (b) Plastic fencing containing recovered plastic for use in 
controlling snow or sand drifting and as a warning/safety barrier in 
construction or other applications.
    7. In Sec. 247.15, new paragraphs (c) and (d) are added to read as 
follows:


Sec. 247.15  Landscaping products.

* * * * *
    (c) Garden and soaker hoses containing recovered plastic or rubber.
    (d) Lawn and garden edging containing recovered plastic or rubber.
    8. In Sec. 247.16, new paragraphs (f) and (g) are added to read as 
follows:


Sec. 247.16  Non-paper office products.

* * * * *
    (f) Printer ribbons.
    (g) Plastic envelopes.
    9. Section 247.17 is revised to read as follows:


Sec. 247.17  Miscellaneous products.

    (a) Pallets containing recovered wood, plastic, or paperboard.
    (b) (Reserved)

[FR Doc. 97-29734 Filed 11-12-97; 8:45 am]
BILLING CODE 6560-50-P